Legal Disturbance
Cases
Bowes v. Dublin Corporation.
[1965 IR 470
Davitt P.
If a landlord is under a duty to a tenant, apart from a covenant for quiet enjoyment, a breach of that duty may itself amount to a breach of the covenant for quiet enjoyment. In this case there was a breach of duty by the defendants and their predecessors in title, as in Booth v. Thomas (1).
It is submitted that the plaintiff has established that the defendants as landlords owed a duty to him as their tenant; that there was a breach of that duty which constituted a breach of the implied covenant for quiet enjoyment; and that the plaintiff thereby suffered loss and damage. In those circumstances it is submitted that Caledonian Railway Co.v. Walker’s Trustees (2) and the cases following it have no application. The plaintiff’s action is brought against the defendants as landlords who have been in breach of their duty to him as their tenant and not against them as the local authority who acted in the proper exercise of their statutory duties and functions. [He also referred to Victor Weston (Eire) Ltd. v. Kenny (3) and Scully v. Marjorie Boland Ltd. and Another (4).] The facts of this matter appear briefly to be as follows: the plaintiff carries on business at 11a Aungier Street, Dublin, as a retail footwear merchant. His shop formerly occupied portion of the ground floor of a four-storey building, the other portion being occupied by the premises of John H. Moore, Ltd. By agreement in writing of the 9th February, 1945, one, James Wyse, became tenant from month to month of his shop to one, Kathleen Gilbert, who had a lease of the whole building. The three upper floors were let in tenements. In February, 1960, the plaintiff acquired the tenant’s interest in the shop, and on the 26th February, 1963, the Corporation acquired the landlord’s interest in the whole building. The Corporation wanted the premises for the purpose of ultimate demolition in order to widen Aungier Street in accordance with town planning requirements, and, with this end in view, Mr. Devanney of the City Architect’s Department inspected the premises in June, 1962. He reported that for tenement property the building was in a reasonable state of repair; but that since some of the walls were bulged and cracked it was not possible to determine the life expectancy of the structure. In evidence Mr. Devanney verified his report and said that the building was perhaps two hundred years old; that the flank wall was bulged and cracked; and that the building was obsolete and had outlived its useful life. He clearly did not at the time consider the building dangerous, since it does not appear that any steps were taken to require the owner to carry out any repairs. He said that there would be no occasion for demolishing it for road widening purposes for about twenty years. Having acquired the premises, the Corporation had to consider what they would do with them; and on the 15th July, 1963, Mr. Eamon Herbert of the City Architect’s Department inspected the premises again and reported that their condition was very poor structurally; that there was serious bulging and buckling of the external walls; and that there were several extensive cracks between the internal spine walls and the external walls. He said that it would appear that these structures had now deteriorated to a degree where their over-all stability could no longer be guaranteed, and he recommended that the structure should be taken down to ground floor level and re-roofed at that level. In evidence he verified his report; said that his view was that no remedial work was practicable; that the only thing to do was to demolish the upper floors; that apart from any question of road widening this would have to be done in any event; and that although there was no immediate danger of collapse he referred the matter to the Dangerous Buildings Section. Inspectors of this section made inspections and kept the building under observation as a suspect structure between the date of Mr. Herbert’s report and the following January. On the 16th January, 1964, Mr. Culleton, the officer in charge of the Dangerous Buildings Section, certified to the Deputy City Manager that the building was a dangerous structure within the meaning of the Dublin Corporation Act, 1890. On the following day the Deputy City Manager issued his certificate to the same effect. On the 11th February the Corporation obtained an order from the District Court directing the inmates of the building to be removed. This order applied in fact only to the plaintiff and Messrs. Moore and was intended to be only temporary as the occupants of the tenements on the upper floor had been already accommodated elsewhere. The plaintiff consented to the order being made. It is clear from the relevant correspondence that the consent was without prejudice to any rights he might possess under a covenant for quiet enjoyment.
It was agreed that Mr. Bowes would hand over possession on the 17th February. He has branches of his business at Dun Laoghaire and Ballyfermot and he removed his stock, value £4,000, from Aungier Street and stored them in his other premises. The work of demolition and making good was carried out expeditiously and gave no occasion for complaint by Mr. Bowes. He was able to move his stock back into Aungier Street and to re-open for business on the 25th March, 1964.
Mr. Bowes claims that as a result of the disturbance he suffered a loss of £678, made up as follows:cost of moving his stock, £50; loss of profit, £323; additional advertising expenses, £105; damage to stock in transit, £200. If Mr. Bowes is entitled to anything I am satisfied that he is entitled to the following:£50 for cost of moving stock; £323 for loss of profit; £105 for advertising expenses. I cannot see that he has made good his claim to £200 for damage to stock and I believe £100 would be a more realistic figure. The total would accordingly be £578.
Counsel for the plaintiff put the case as follows:a covenant for quiet enjoyment must be implied in his tenacy agreement. In regard to that covenant his landlord must be regarded as a continuous entity. So regarded his landlord’s obligation under the covenant was to maintain the structure of the whole building in such a way that its condition would not be the occasion of an interruption in Mr. Bowes’ enjoyment of his portion. This the landlord failed to do and Mr. Bowes as a natural result suffered a loss of £578. Counsel for the Corporation at first submitted that to constitute a breach of the covenant it was necessary that there should be a permanent ouster of the tenant’s possession, citing in support some observations of Devlin L.J. in Commissioners of Crown Lands v. Page (1). He later withdrew this submission, and I am quite satisfied that he was correct in doing so. It is quite clear that the observations in question lend no support to such a proposition.
Counsel next submitted that the act relied on as a breach must be a positive act as distinct from an omission; and that qua landlord the Corporation had committed no positive act that could be a breach. In support he cited a case reported in volume 74 of the English Reports, at p. 714. That was a case occurring in the reign of Elizabeth I in which the plaintiff sued on an express covenant for quiet enjoyment. The brief report states that it was the opinion of all the justices that he had no cause of action because he had not been ousted by any act of his lessor, who had been guilty only of non-feasance, “as if a man be bound that he shall not do any waste, permissive waste is not within the danger of it.” Counsel admitted, however, that this proposition had been modified by authorities in modern times; and that cases such as Anderson v. Oppenheimer (1); Cohen v.Tannar (2) and Booth v. Thomas (3) supported to some extent the proposition that if the act relied upon as a breach of the covenant was an omission to perform a duty owed by the landlord to the tenant (apart from any duty under the covenant itself) this would be sufficient to constitute a breach.
I am satisfied to accept the proposition that an omission to perform a duty owed to the tenant (other than the duty under the covenant itself) can be an act constituting a breach.
The question arises whether in this case there was any omission by the landlord to perform any such duty owed to the tenant. There was no contractual duty. The contract of tenancy imposed no liability upon the landlord to keep any part of the building in repair. The head lease under which the landlord held the whole building contained a repairing covenant by the lessee in the usual form, and as the upper floors were let in tenements it is, I think, a reasonable assumption that the landlord retained control of the roof and external walls of the building sufficient to enable him to perform his covenant with his superior landlord. If that assumption is correct, then, according to the principles followed in Weston v. Kenny (4) and Scully v. Boland (5), the landlord owed a duty to the tenant to take reasonable care to prevent any portion of the external walls from becoming a source of danger or damage to the tenant’s premises. If by reason of his failure to take such care portion of the walls had collapsed and injured the tenant’s premises the landlord would clearly be liable both in tort and under the covenant for quiet enjoyment. If collapse were imminent and the landlord successfully required the tenant to vacate his premises temporarily to enable the premises to be made safe, then I think the landlord would also be liable under the covenant. In these circumstances it would be somewhat strange if the landlord could escape liability by refusing to do anything until compelled by the Corporation under its statutory powers and then cast the responsibility for compensating the tenant upon the Corporation under the provisions of s. 95 of their Act of 1890.
The obligation to take reasonable care to keep the premises safe is not, however, coterminous with the liability under a repairing covenant. The landlord owed no duty to the tenant to prevent the building from deteriorating; his duty was only to prevent it from becoming dangerous. I am not satisfied that at the time the Corporation took over the building it had quite reached that stage.
After they took over I do not think it was practicable for them to prevent that stage from being reached or to do anything other than they did.
The matter is moreover complicated by the circumstances that at the material time the Corporation was both landlord and local authority having both the duty and the right to do what it did. It is conceded that, in carrying out the work of demolition and making good, the Corporation’s servants and agents were guilty of nothing in the nature of negligence, but did it with care and expedition and gave no cause whatever for complaint. It is clear that the Corporation could notqua local authority be made liable for any loss sustained by the plaintiff except under s. 95 of the Act of 1890. The question is whether they can be made liable otherwise e.g., qua landlord. It seems to me that the principle enunciated by Lord Blackburn in Caledonian Railway Co. v. Walker’s Trustees (1), at p. 293, and applied in Manchester, Sheffield and Lincolnshire Railway v. Anderson (2) and in Marriage v.East Norfolk Rivers Catchment Board (3) governs the matter. I am unable to distinguish these cases in principle from the present one and I can see no sufficient answer to the submission that the legislation has provided for the plaintiff a remedy under s. 95 of the Act of 1890 and that he is not entitled to seek any other.
I will order judgment for the defendants with costs incurred after delivery of the defence.
Downes v Hannon
Circuit Court of Justice.
23 March 1949
[1949] 83 I.L.T.R 78
Judge O Briain
The deceased husband of the defendant by his will appointed two executors and trustees. The will continued:—
“I give devise and bequeath to my said trustees my said house, 21 Church Avenue, with the furniture therein upon trust to permit my wife (so long as she remains my widow) and my four children to reside therein until the last of my three sons shall have attained the age of 25 years and my daughter shall have attained the age of 21 years or married thereunder and on the happening of the last such event then I direct my trustees to sell the said house with the furniture therein and to pay to each of my said children one fourth of the proceeds thereof.”
The will went on to make provision in the event of any of the children dying or marrying before attaining the specified age. The residue of the estate was to be paid to his wife so long as she remained his widow and was eventually to be divided between the children on their reaching the specified ages.
The defendant made a letting to the plaintiff, Charles Downes, of two rooms on the top floor of the premises, upon an agreement in writing for a weekly tenancy.
The plaintiff brought the present proceedings alleging that the defendant had interfered with his use of the kitchen and the electric light and other amenities on the premises. His civil bill alleged that there was a covenant for quiet enjoyment implied in the said letting and that the defendant had been guilty of a breach of the said covenant. He claimed also an injunction and damages.
The defendant in her defence, pleaded a general denial and specificially denied that the letting agreement contained or could contain or be implied to contain any covenant for quiet enjoyment, and that the agreement was not such as to afford to the plaintiff any rights in law against the defendant or in respect of the premises.
Liam Duff, for the plaintiff: The defendant had the right to make the letting and it implied a covenant for quite enjoyment. If, however, the defendant now wishes to rely upon her own wrong in making an invalid letting it is for her to prove that the trustees object to the letting, and not for the plaintiff to prove that they agree.
John Coghlan, for the defendant: There could be no warranty expressed or implied, as the letting is a nullity and is invalid. The defendant has only a right of residence which is not even exclusive to her, but is to be shared with her children and is not to last for the duration of her own life. She could not have the powers of a tenant for life under the Settled Land Acts (His Lordship referred to National Bank v. Keegan, [1931] I. R. 344, 66 I. L. T. R. 101 and adjourned the matter for legal argument).
John Coghlan, for the defendant, on the resumed hearing, referred to National Bank v. Keegan, especially pages 347 and 354; the party in that case had exclusive right to possession for life. He referred also to the quotations in that case from prior cases.
Judge O Briain referred to the facts and said that the question arose as to whether the estate which the defendant held enabled her to make a letting. If ever there was a case of estoppel where a party should be prevented from alleging want of title, this was such a case. On the fair dealing between man and man, the defendant should not be allowed, as one of the parties to the agreement, to repudiate its effect. His Lordship *78 refused an injunction and gave a decree for £2 10s. 0d. damages.
Solomon v. Red Bank Restaurant, Ltd.
[1938] IR 793
Johnston J.
This is an action by Mr. Julius Solomon of Hawkins Street for the purpose of establishing as against the defendants a right of way to the rere of his house in Hawkins Street, and the case possesses certain elements of novelty and interest.
The dominant tenement is a private house with a narrow frontage to Hawkins Street, a street which is now of no particular importance in the industrial life of Dublin, which contains only one building of notethe historic Theatre Royaltogether with the back premises of a number of D’Olier Street business-places and some small shops, and which, as a thoroughfare, can only be described as a rather shabby back street.
The plaintiff’s premises were obviously built as a dwellinghouse three storeys in height with a basement, and the back premises, euphemistically called a yard, are little more than an open space of a few square feet, and would do little more than pass muster as a glorified dustbin. The wall at the back of the yard is about thirteen feet high from the ground level, and six feet six inches high from the level of the defendants’ passage at the back. This passage is only about three feet four or six inches in width and is scarcely wide enough for an ordinary wheel-barrowand certainly not wide enough for even a small wheel-barrow to be turned at the end of the passage. The wall at the back of the so-called “yard”is about six feet six inches in height from the level of the passage, and is surmounted by a layer of ugly-looking fragments of glassbroken bottles and the likefirmly embedded in concrete. After the case had proceeded for a certain length of time, I learntto my amazement, be it saidthat this wall contained no door or gate leading from the passage to the “yard.” This is a merciful dispensation of Providence from every point of view, because it would appear that if anybody entered from the passage through such a door or gateif it existedhe would immediately fall a distance of some seven feet into the”yard” and a visit to Mr. Solomon’s premises (which is used as a moneylender’s office) by the back way, even by clients who had the most sanguine hopes of raising the wind, would be by no means popular. So much for ingress. From the point of view of egress such a gate or door would be quite useless unless the clients were supplied with some sort of a ladder or steps. The only pretence of an entrance from the passage to the yard which has been put forward on behalf of the plaintiff is a small hole in the wallone of the witnesses for the plaintiff described it as a chutethrough whichif it had been open any time this last forty yearsa small bin or bucket of refuse or rubbish might be pushed by a person standing upon a stepladder in the yard.
Some amazing evidence was given by a workman or contractor on behalf of the plaintiff, who described very vividly his efforts to get some ladders and builder’s materials down this narrow passage and over the back wall into the “yard,” and it appeared to me, after having, with the consent of both parties, gone to inspect the place, that that must have been a herculean struggle. There was, of course, no possibility of getting the ladders through the chute, even if it had been open and available for such an attempt. It has been securely boarded up with nails and concrete plaster from the plaintiff’s side, and no witness was able to give any evidence of its ever having been used. It appears to have been in that condition for the last thirty or forty years at least. I do not know if the plaintiff claims a right of way into his back yard by means of the top of this wall, with its glass covered coping and its drop of thirteen feet on the plaintiff’s side; but if he does, his claim is certainly unique. In Hunt’s”Boundaries and Fences,” 6th Ed., p. 92, it is said, with great good sense, that a fence includes hedges, banks and ditches, walls, palings and rails and that “the primary function of a fence is, on the one hand, to guard against, intrusion, and on the other, to prevent the owner of the land incurring liability by his animals straying upon his neighbour’s land.” He adds:”Often, however, the object of a fence is to provide a visible boundary line between two properties.” But the learned author does not suggest that any one had ever heard of a fence, securely guarded by broken bottles on the top, over which there was the right to bring in ladders and builder’s material to the dominant tenement. On the whole, therefore, I am of opinion that the only right of way or passage-way upon which the plaintiff can rely is the use of the chute for such purposes as it can reasonably and properly be used; and, in justice to the learned counsel who settled the statement of claim, I am bound to point out that the right of way which is claimed is one only “for all the purposes for which the same can be used.”
It would appear from a conveyance of 1813 by the Commissioners of Wide Streets to one, James Donovan, that at that time the part of Hawkins Street with which I am concerned in this case was a plot of unbuilt-upon ground. These Commissioners, who were created as a statutory corporate body by the Act of 31 Geo. 2, c. 19, which, with certain amending Acts, conferred upon them extraordinarily extensive powers to widen the streets of Dublin (which Corporation was not dissolved until the year 1849) appear in 1813 to have been engaged upon a scheme for widening D’Olier Street, and that was probably done by narrowing Hawkins Street. The deed in question conveyed to Donovan “eight lots of ground situate on the west side of Hawkins Street . . . containing in front to Hawkins Street . . . 89 feet, including a gateway to be erected, leading from Hawkins Street to the rere of said lots of ground and to the rere of certain lots of ground in D’Olier Street, the property of the said Commissioners”;and the deed provided that all buildings to be erected on this ground should be “conformable to such lines, levels and elevations as shall be approved of by the said Commissioners,”and should not be less than three storeys in height. The Commissioners further reserved to themselves the right of “ingress, egress and regress through the said intended gateway,” as marked on the map which was traced on the deed. This was a gateway leading from Hawkins Street by a passage which was not to be built upon, crossing the plot conveyed to Donovan, to the rere of the Commissioners’ ground in D’Olier Street. In all probability the gateway and passage which is marked”rere entrance to Red Bank Restaurant” on the map which is endorsed on the lease of March 22nd, 1928, is the passage in question. It would appear to me that this plot of ground, as conveyed to Donovan, was the residual lands which remained in the hands of the Commissioners after they had fixed the line of D’Olier Street and the depth of the premises which were to abut upon its east side.
Now, it is necessary to observe that while the Commissioners reserved for themselves a right of passage across the plot of ground that they had granted, no corresponding right was reserved to the grantee in regard to a back entrance to the buildings that were to be erected by Donovan. A plot of building ground had been granted to him on which he could build; the measurements and boundaries were very precisely set out; he could cover the whole of that plot with buildings if he so wished; but he must make his own arrangements, upon his own land, for any back entrance that the buildings fronting Hawkins Street were supposed to acquireif they were to have any.
By a lease for lives, renewable for ever, Donovan demised this plot of ground to one, Patrick Vaughan, his heirs and assigns; and the course that Vaughan pursued in carrying out his building scheme was the matter that really has given rise to the present litigation. In building a block of “dwelling-houses and premises” in Hawkins Street he failed to observe the precise measurements in Donovan’s grant and he encroached upon the ground of the Commissioners, pushing his own buildings further back than he was entitled to. This error or deliberate trespass whichever it waswas probably the cause of the constriction and the cramped condition of the ground between the two streets and was not discovered for some years. Some time later Patrick Vaughan died, having by his will appointed his two sons, Edward Vaughan and Joseph Vaughan, as his residuary legatees. These two persons instituted proceedings on April 30th, 1831, before Sir William McMahon M.R. claiming an inquiry as to their father’s assets. In the course of these proceedings, the fact was elicited that Patrick Vaughan had, in the course of his building operations, encroached upon the Commissioners’ land, and the latter thereupon served a notice calling upon the Vaughans to remove the buildings and remedy the trespass. If this demand had been insisted upon there would, I assume, have been no choice for the Vaughansthey would have been bound to comply. However, the Commissioners took a merciful view of the matter and they appear to have consented that there should be a reference to the Master of the Court to inquire and report whether it would be for the benefit of the parties that any and what compromise should be entered into between the parties. It was reported by the Master that it would be for the benefit of the parties that the Commissioners should make a lease at a rent of £10 yearly of the ground encroached upon for a term of three lives, renewable for ever, to Edward Vaughan in trust for himself and his brother. Accordingly a lease for that term was made by the Commissioners to the two brothers on May 6th, 1832, of the “aforesaid piece or parcel of ground encroached and built upon.” Apparently in the interval between 1813 and 1832 the ground which had remained in the Commissioners’ hands, with a frontage to D’Olier Street, had become covered with buildings; but those buildings did not abut immediately upon the Vaughans’ set of premises. A narrow passage three feet six inches in width had been left at the back of the D’Olier Street property. This passage could not have been left to accommodate the Hawkins Street property, particularly the buildings which had been built as an act of trespass upon the land of the Commissioners; but that question does not arise, as the Commissioners, as part of the settlement, consented to give a right of passage to the persons owning the buildings in Hawkins Street in these words and to this extent:”Together with the use or passage passing along the west side of said piece or parcel of ground . . . and the vaults underneath same, and which passage is to be an uninterrupted passage for the use of the person or persons occupying the said ground, in common with such person or persons as shall or may occupy the ground on the west side of said passage fronting to D’Olier Street.”
It was suggested during the argument that these latter words meant that the passage was not the property of the defendants and that they only had a right of way thereon “in common with” the occupiers of the buildings on the other side of the passage. I cannot at all adopt that suggestion. The passage in question was the property of the Commissioners and I see nothing improbable or unlikely in the defendants having acquired in some way or at some stage everything that the Commissioners owned, particularly in the light of the evidence that was given in this case that for a long period they had kept the passage in repair, that they had kept it clean and that they had used it for purposes quite distinct from its use as a mere passage-way.
This deed provided further that it should be “lawful to and for the said Edward Vaughan and Joseph Vaughan, their heirs and assigns and their tenants and servants . . . during the continuance of this demise and of every renewal thereof, to have an uninterrupted right of way through and along the passage now found on the east side of the ground next D’Olier Street, the property of the said Commissioners, and also an uninterrupted right to the vaults now formed underneath the said passage and to the gratings and lights which are placed for the use of the houses in the said passage.” Now, this clause must obviously be read in the light of the requirements of the various buildings in Hawkins Street and the structural features of those buildings. For instance, in regard to the plaintiff’s house, there is no suggestion that it had any connection whatever with the vaults or that it required or had any use for the gratings and lights that are mentioned. The reserved right was intended to serve a number of separate buildings, and I have no doubt that the requirements of one differed from those of another.
But it is upon the modern history of this passage-way that the plaintiff relies. He holds the house in Hawkins Street for a term of 99 years from March 25th, 1928, the lease being made by one, Herbert Vaughan (I suppose a descendant of either Edward or Joseph) to Michael Fitzgerald at a rent of £40. This demise of the house is made “together with the right of way through the gate of lane at back as more particularly delineated by the map hereon endorsed.” Mr. Solomon acquired this leasehold interest in 1929 for a consideration of £400; and on November 25th, 1932, Herbert Vaughan granted his reversion in the premises to the defendants for the sum of £550, subject, of course, to the lease of 1928. So far as the plaintiff is concerned the defendants stand in the lessor’s shoes in regard to all the terms of that lease, which contained an express covenant for quiet enjoyment; and it cannot be questioned that a lessor who disturbs his lessee’s use of a right of way which is expressly appurtenant to the demised premises can be made liable as a person who has committed a breach of that covenant. That was distinctly decided in 1724 in the case of Andrews v. Paradise (1) a case that has been followed on many occasions since.
The exact phraseology of the covenant in the lease of 1928 is important. Herbert Vaughan is described as “the lessor”; but the lease provides that that expression “shall when the context so admits include the person for the time being entitled in reversion immediately expectant upon the determination of the estate hereby created.” The words of the covenant are these:”And the lessee paying the said yearly rent hereby reserved and performing and observing the several covenants and agreements by him the lessee herein contained, may peaceably and quietly have, occupy and enjoy the said hereby demised premise during the term hereby granted without any let, hindrance, interruption or disturbance by the lessor or any persons or person lawfully claiming or deriving from or under him.”The defendants have obstructed the plaintiff’s right of passage given to him by that deed, and I am unable to appreciate by what process of construction or rule of law they can free themselves from that liability.
The principle upon which Mr. Overend relies has no applicability to a case like the present. The case that he cited Harrison, Ainslie & Co. v. Muncaster (2) was of such a very special character and was concerned with such a very unusual set of circumstances that it is difficult to discover any general principle to be derived from the decision. The principle upon which counsel seeks to rely is, however, illustrated very clearly in the case of Davisv. Town Properties Investment Corporation (3), and that case reveals equally clearly, how impossible it is to apply that principle in the present case. I think the gist of the decision in Davis’s Case (1) is to be found in the following passage in the judgment of Collins M.R., who, dealing with a covenant which is somewhat similar to the covenant in the deed of 1928, said:”It is the ordinary covenant against eviction or disturbance by the lessor or any person lawfully claiming under him. In other words, it contains no special provision enlarging the obligation of the lessor to respect or secure any other rights than those incident to the demised premises such as they were at the time of the demise.”
In the present case one of the rights incident to the demised premises was this right of passage which Herbert Vaughan and “any person lawfully claiming under him,”was bound to respect. The defendants took the premises with full notice of what their liability under the covenant was to be; they have obstructed the plaintiff in his use of this passage-way; and they are liable to make good the loss that the plaintiff has incurred by virtue of this covenant for quiet enjoyment.
The question then is: What is the remedy to which the plaintiff is entitled? His counsel insist that he is entitled to a mandatory injunction for the taking down of the building that has been erected by the defendants, and nothing less, and Black’s Case (2) has been strenuously relied upon. The defendants say that, under the circumstances, the plaintiff can be adequately compensated by a judgment for damages. This, I take leave to say, is the only point in the case which calls for serious consideration, and in deciding it I must on the one hand bear carefully in mind that a discretion was reposed in the Court by Lord Cairns’ Act (21 & 22 Vict. c. 27), and that the Court cannot in effect repeal the legislation by disregarding it; and, on the other hand, I cannot permit the defendants, by erecting a building which would permanently obstruct the plaintiff in the use of this passage, turn themselves into compulsory purchasers of the plaintiff’s property if the case is one in which, under all the circumstances, a mandatory injunction should be granted.
In the case of Leeds Industrial Co-operative Society v.Slack (3) Viscount Finlay quoted with approval the following statement from the judgment of Buckley J. in Cowper v. Laidler (4):”The Court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the easement.”
The speeches in Black’s Case (1) indicate some of the special circumstances which would induce the Court to award damages instead of a mandatory injunction, and they all are to be found in this case, and more. I accept the evidence of Mr. Montgomery as to the preparation of the plans in 1934 and of the conversations that he had with Mr. Solomon at that time. I am satisfied from that evidence that what the plaintiff was thinking of at that time was not the defence of his rights, or supposed rights, in regard to this house, but the possibility of his extracting a large sum of money from the defendants in the event of their making improvements in their premises. Having heard what Mr. Solomon’s views were on that subject and knowing something of the niceties of the law in regard to ancient lights, they decided to abandon that plan and to adopt another, concerning which they thought that there would be no possible objection. They knew that the plaintiff had no proper entrance to his back premises for the accommodation of which a right of way would be necessary. They knew that the chute had been closed up for forty years at least, and closed up from the plaintiff’s side, and that it had never been used for a period whereof the memory of man runneth not to the contrary. They knew that the passage was approached through a gate and that the only key for the lock upon that gate was in their possession, and they knew that Mr. Solomon’s contractor had asked for and had been given permission to take his ladders and material through that gate and down the passage-way. Therefore it is impossible to say that they acted with the deliberate intention of interfering with the plaintiff’s rights and of paying damages subsequently in the event of their being brought to book in a Court of law. What they did not know, and what they could not be expected to know, was the recondite principles of the law in regard to a covenant for quiet enjoyment. I am satisfied that they acted within what they thought were their rights, honestly believing that the plaintiff had, and could have, no right of passage through this narrow back way.
But there is a further consideration of great importance. Even if Mr. Solomon had opened up the chute, of what use would it have been to him or to what extent could it have accommodated his premises? The fact that it had been closed as long as anybody can remember and that no one has been found who could say that it had ever been used, is, to my mind, an unanswerable reason for saying that the chute was of no real use so far as these premises are concerned, and I am satisfied that this is a case in which damages should be awarded and that the claim for an injunction should be refused. A careful consideration of the correspondence suggests to my mind the same conclusion. I have read all the reported cases upon the subject of the applicability and the construction of the provision in Lord Cairns’ Act, including of course the well-known passage in the judgment of A. L. Smith L.J. in the case of Shelferv. City of London Electric Lighting Co. (1); and I am bound to say that the tendency of the more recent of these cases suggests a note of encouragement in favour of damages rather than injunction. The last word on the subject is probably the case of Fishenden v. Higgs & Hill, Ltd. (2)in 1935, where the earlier cases were considered by the Court of Appeal and the decision of Crossman J., granting an injunction, was reversed.
The only question that remains is that of the amount of damages that should be awarded, and I am of opinion that they should be small. It is true that the defendants have committed a breach of the covenant for quiet enjoyment; but viewing the case from a practical point of view, I cannot say that the plaintiff suffered any substantial wrong. This house was built without a real back entrance and it has fulfilled its purpose for over one hundred years without ever having had such an entrance. There is no evidence before me that the chute was ever used, and for forty years at least it has been securely closed up. Mr. McCarthy speaks of the potentialities of the premises; but I doubt if very much weight can be attached to that suggestion. I have no belief in the potentialities of Hawkins Street for either residential or business purposes. I am quite certain that nobody capable of paying a respectable rent would think of going to reside in that street. Nor is it a street in which shops flourish. Even if it were, this place, with its constricted frontage21 feet at the most could not be converted into anything more than a small sweet or tobacco shop, and for such a place, according to the evidence, a back entrance is not necessary. I am of opinion that the amount lodged in Court£51will not only amply, but liberally, compensate the plaintiff for the technical injury that he has suffered. Such an amount will adequately compensate the plaintiff for his deprivation of the use of this hole in the back wall of his house which
was closed up years ago and which the plaintiff had never used.
There will therefore be judgment in favour of the plaintiff for £51, and the claim for an injunction will be dismissed.
Coyle v Coughlan & anor
[2019] IEHC 506 (1
JUDGMENT of Mr. Justice Allen delivered on the 11th day of July, 2019
1. By a letting agreement dated 1st December, 2017 made between William Coughlan and Elizabeth Coughlan, as landlord, and Paul Coyle and Meta Coyle trading as Sugar Sisters, as tenant, Mr. & Mrs. Coughlan agreed to let Mr. & Mrs. Coyle to take the premises known as Units 1 and 2 Acol House, Courthouse Square, Maynooth, Co. Kildare, for a term of three years from 1st November, 2017, subject to a monthly rent of €2,000 payable in advance and the terms and conditions therein contained.
2. The demised units were two of six units, in two buildings, one adjoining Mr. and Mrs. Coughlan’s house and the other developed by Mr. & Mrs. Coughlan on what previously had been the garden attached to their house. One of the buildings fronts onto Courthouse Square. The ground floor is in two units, one let to an electrical shop called Three Pin, and the other to a coffee shop called The Brewery Coffee House. Above those units is a business called the Treatment Room. To the north of the coffee shop is a laneway leading into a small carpark, at the west of which is the second building, Acol House, which comprises two retail units on the ground floor, Units 1 and 2, and a room above which is used as a bridge club.
3. The carpark serves all six units in the commercial development and is also used by Mr. and Mrs. Coughlan, whose house is immediately to the southeast, to park their car.
4. The letting to Mr. & Mrs. Coyle included a licence to park two cars in the carpark. Special Condition 8 of the Letting Agreement provided: –
“8. The tenant shall have permission to use two undesignated car parking spaces from 9am to 6.30pm during normal working days. No liability for any loss or damage caused to any vehicle at any time whatsoever shall be attributable to the landlord and the tenant, its servants, agents and invitees use any such car parking spaces at their own risk. Without prejudice to the foregoing, the landlord may impose regulations, terms and conditions relating to the use of the said car parking space at any time. The tenant accepts and agrees that the Bridge Club players shall have priority concerning the car parking spaces after 6.30pm each and every day during the term.”
5. The Sugar Sisters business is retail cake decoration and tuition in cake decorating, and that was the user permitted by the letting agreement. Mr. & Mrs. Coyle’s plan was to use one of the units as a shop and the other as a workshop for cake decorating classes and demonstrations.
6. For the first seven months or so, all was well. Mr. & Mrs. Coyle, with the considerable assistance of their daughters Ms. Amy Coyle and Ms. Emily Coyle, fitted out the units and opened for business. In the early months of the demise the Misses Coyle worked long hours, seven days a week. Ms. Amy Coyle described that Mr. Coughlan kept an eye on her in the evenings, which she was grateful for. Mr. & Mrs. Coughlan were invited to the opening of the new business and brought a bottle of champagne. In the spring of 2018, Mr. & Mrs. Coughlan’s granddaughter had her birthday party in the studio.
7. The carpark serving the development could reasonably comfortably accommodate ten cars, although if it was full, the cars parked in two of the spaces would be blocked in. Mr. & Mrs. Coughlan allowed the tenants of each of the commercial units to park one car. They used one themselves, and one was assigned to the Bridge Club, which was earmarked for the use of a disabled member. Save for the area immediately beside the entrance to the Bridge Club, the surface of the carpark was not marked but the tenants knew where they were supposed to park.
8. The licence which Mr. & Mrs. Coyle had was limited to 9am to 6.30pm on ” normal working days “, but this was not observed or enforced. In the early months, as I have said, Ms. Amy Coyle often worked late and there was no objection to her keeping her car in the carpark. Similarly, in the early months, the Misses Coyle ran classes at the weekends and there was no objection to them or their students parking in the carpark.
9. The Bridge Club operated during the daytime as well as in the evenings. In the daytime, when bridge lessons were run, the bridge players, with the exception of the lady with mobility difficulties, were asked to park elsewhere than in the carpark. In the evenings, when games were played from 7.30 pm, the bridge players parked in Mr. & Mrs. Coughlan’s car park. Because the bridge players would all be leaving together, they parked their cars very close together, so that the last car in would have to move before those who had arrived earlier could leave. On most weekday mornings Mrs. Coughlan gave lessons in the Bridge Club but on Tuesdays a game was played.
10. This case was fought tooth and claw over four days in the High Court. A half dozen incidents were examined and re-examined in exquisite detail. On both sides, recollections were clouded, to a greater or lesser extent, by the bitterness that had developed. Some of the incidents had been videoed and the videos were the subject of minute examination and comment.
11. In the chronology of this saga, the first bitter fight was about the date of Mr. and Mrs. Coughlan’s granddaughter’s birthday. The Coughlan side said that it was in February. The Coyle side were adamant that it was in April. Ms. Emily Coyle, who had hosted the party, when it was put to her that she was wrong about the date refused to accept that and called up on her mobile phone a photograph, dated 15th April, 2018 of a blond child blowing out her candles. The phone was shown to the court and to counsel and eventually (by-passing Mr. and Mrs. Coughlan) to the child’s father: who inevitably confirmed that the child in the photograph was not his. Of course the date of Miss Coughlan’s birthday was nihil ad rem but the exchange was evidence of the dogged pursuit by Ms. Coyle of an argument which she was bound to lose.
12. The premise of the plaintiff’s case was that all had been well for the first seven months of the letting but that the relationship had thereafter deteriorated by reason of the unreasonable conduct of the defendants. But in evidence a number of encounters in March or April were recalled and reimagined. As with the date of Miss Coughlan’s birthday, the evidence on these issues goes to the reliability of the witnesses more than the substance.
13. There were a couple of minor glitches in March or April. Understandably, the passage of time meant that the witnesses’ recollections of the dates was uncertain, but the dates can be tied down by reference to a note given by Mr. Coughlan to Mr. Coyle dated 23rd April, 2018.
14. The Misses Coyle sometimes stayed late, after the shop had shut. One evening in March or April Ms. Amy Coyle was working in the shop with her boyfriend, David. She described how a foreign couple, who were not Sugar Sisters customers, had arrived at the door of the shop to say that they had been parked in. Ms. Coyle thought that it was about 6.30 pm. Mrs. Coughlan was adamant that it was 7.45 pm, after the game had started at 7.30 pm. Ms. Amy asked David to go upstairs to ask that the owners of whichever of the bridge players’ cars as were blocking in the foreign couple’s car, to move to let them out. Ms. Coyle described that Mrs. Coughlan was out of control. Mrs. Coughlan, it was said, was never warm and exuded negative energy. Mrs. Coughlan’s account of the event was that she said that if people parked after 6.30pm they would get parked in. I think that this incident did happen after the bridge game had begun. The rule was that all cars, other than bridge cars, had to be out by 6.30 pm. Ms. Amy did not know it, but the request to move the bridge players’ cars disrupted the game. Because it was David who had come up, Mrs. Coughlan probably thought that the blocked in car was a Sugar Sisters customer’s car. I think that Ms. Amy was overstating the position when she said that Mrs. Coughlan was out of control but I am satisfied that she was annoyed, and made her annoyance known.
15. Following that incident Mr. Coughlan spoke to Ms. Amy to explain why cars other than the bridge players’ cars had to be out by 6.30 pm.
16. The other glitches involved overnight parking. Overnight parking was not allowed. One day in the late spring or early summer Ms. Frances Coby, Mr. and Mrs. Coyle’s sales assistant, lost her car key and left her car in the car park, she thought, overnight, Mrs. Coughlan thought over the weekend. When she eventually arrived to recover her car she was challenged by Mr. and Mrs. Coyle as to why the car had been left and why she had not notified them that it would be left there. She felt scolded. Mr. Coyle, in his examination of Ms. Coby, and in his cross examination of Mr. Coughlan and of Mrs. Coughlan, went into excruciating detail in the hope of establishing that Mr. Coughlan should have known, or should, by reviewing the CCTV footage of the carpark over the previous days or weeks, have established, that it was Ms. Coby’s car but it is clear from the evidence that it was not that big a deal at the time.
17. The second overnight parking incident involved Ms. Amy Coyle. Ms. Amy arrived in her car one evening on the way to dinner with the intention of parking overnight. She was approached by Mrs. Coughlan who said that she was not allowed to park overnight. Ms. Amy described Mrs. Coughlan pacing in circles, in a flap, and hysterically pointing at other cars. I am satisfied that Mrs. Coughlan told Ms. Coyle that she was not allowed to park overnight. I am satisfied that Mrs. Coughlan was annoyed but, again, I am satisfied that Ms. Coyle greatly exaggerated what happened.
18. As I have said, I think that these incidents, such as they were, can be anchored by reference to a note given to Mr. Coyle on 23rd April, 2018. This note (a copy of which was not kept by Mr. And Mrs. Coughlan, but the original of which was produced by Mr. Coyle) reminded Mr. Coyle that cars needed to be out of the carpark by 6.30 pm; reminded Mr. Coyle that the lease limited him to two spaces; advised Mr. Coyle that it was unacceptable that Ms. Amy or Ms. Emily should come up to the Bridge Club to ask that cars be moved; and reminded, or informed, Mr. Coyle that some of the bridge players had mobility issues. The note pointed out that parking at weekends was not a problem up to 6.30 pm and warned that there was ” absolutely NO overnight parking without first texting or phoning [the number given].”
19. While on the one hand leading evidence which it was hoped would show a breach of the covenant for quiet enjoyment, on the other hand Mr. Coyle said that he had absolutely no problem with the position taken by Mr. and Mrs. Coughlan in relation to evening and overnight parking.
20. I am satisfied that in the period up to the end of April Mr. and Mrs. Coughlan politely engaged with Mr. Coyle to ensure (or I should probably say, in the hope of ensuring) that parking was kept more or less to the agreed times: strictly to 6.30 pm on weekdays, with an indication of flexibility at the weekends. Mr. Coughlan is a mild mannered man, who was described by Ms. Emily as pleasant and always obliging and by Ms. Amy as a grandad figure. Mrs. Coughlan is more forthright but she is not the harridan portrayed by the Misses Coyle. The Misses Coyle are young, ambitious, determined and opinionated young women who resented, and in their evidence exaggerated, Mrs. Coughlan’s attempts to regularise the use of the car park. I am satisfied that Mrs. Coughlan was perfectly entitled to intervene in relation to evening and overnight parking and that her interventions were perfectly proper and reasonable.
21. The trouble started in June 2018.
22. The Misses Coyle, besides the weekend parties and demonstrations which were going very well for them, devised a diploma in cake decorating which would be earned over five weeks by attending all-day classes on successive Tuesdays. The course was advertised on the basis there was ” parking at the door “. Ms. Emily explained that Sugar Sisters had a competitor about 15 minutes’ drive away, where parking was readily available, and that the availability of parking at the Sugar Sisters premises was a selling point. Those classes attracted eight or ten or up to a dozen customers. The carpark simply could not accommodate the traffic. Mr. Coyle parked his customers’ cars tightly together, but this inevitably displaced the other tenants and their customers, who, in the case of the other tenants being entitled to use the car park, and in the case of their customers, being in the habit of doing so, variously were unable to get in or, having got in, found no space available. This led to cars being left in the circulation area while the drivers did whatever business they had to do, which inevitably inconvenienced those who had completed whatever business they had to do and wished to leave.
23. For good measure, Tuesday was a day on which bridge was played, by players in the habit of parking, rather than taught to aspirants who had been instructed to park elsewhere.
24. On 6th July, 2018 Mr. Coughlan sent Mr. Coyle a note. The car parking, Mr. Coughlan said, was just chaos, to say the least. That was the fact and Mr. Coyle accepted it. Mr. Coughlan said that he would be putting down car parking lines, hopefully that week. He again reminded Mr. Coyle that Sugar Sisters had two car parking spaces available and asked Mr. Coyle to advise his customers that there was no all-day parking available.
25. Mr. Coyle replied by email on the same day. He said that he was in agreement with parking lines and no parking areas but suggested that this was a significant lease change and wished to be consulted about the details before he agreed. Mr. Coyle expressed concern that the changes proposed would make the Sugar Sisters business more difficult to run and that he and Mrs. Coyle had agreed to rent the unit on the basis that there was customer car parking available. In the same email Mr. Coyle complained about the manner in which some of his customers had been spoken to and asked that any further issues with Sugar Sisters’ customers should be brought to the attention of him or Mrs. Coyle or their staff.
26. On the evening of 8th July, 2018 Mr. Coughlan met with Mr. and Mrs. Coyle at the premises. The meeting lasted four hours but it was common case that it got nowhere. Mr. Coyle was unshakeable in his view that nothing could be done without his agreement. He suggested that an engineer should be engaged to advise on the layout of the carpark and that the other tenants, who he called the stakeholders, should be consulted. Mrs. Coyle said that she was shocked at Mr. Coughlan’s attitude. She and her husband had, she said – and they had – built up an expectation on the part of their customers that parking would be available. As far as Mr. Coughlan was concerned, there was a serious problem with parking, it was his carpark, and he had a responsibility to his other tenants and their customers. Towards the end of the meeting Mr. Coyle suggested that if agreement could not be reached the matter would end up in court which, he said, would cost him €150 but Mr. Coughlan €50,000. The meeting went on so long that Mr. Coughlan was late for his dinner and Mrs. Coughlan came over. Mrs. Coughlan’s contribution to the meeting was that the only thing that was important was the lease, to which Mr. Coyle’s response was that he would not obey the lines anyway.
27. In the course of the trial there was a good deal of talk about cars belonging to other tenants and their customers being parked where they ought not to have been, and complaint that nothing was said or done to them. As to that, I say two things. Firstly, even if other tenants or their customers were abusing the carpark, that would not have justified Mr. and Mrs. Coyle in doing so. Secondly, no one other than Sugar Sisters were inviting their customers to park all day. Mr. and Mrs. Coyle appeared unable to recognise that the cause of the congestion and blockages in the carpark was that their numerous long-term customers were displacing everyone else.
28. Mr. and Mrs. Coughlan employed a carpark management company which first of all erected signs on the walls warning that unauthorised cars would be clamped and then issued parking permits to the tenants and erected signs. Mr. Coyle objected to the signs on the ground that fewer of his customers came into the carpark.
29. At the end of August or early September the lines were painted and a moveable bollard was erected on the space earmarked for the disabled bridge player. Mr. Coyle thought that this happened on 20th August. Mr. Coughlan said that it was the first week of September. Nothing turns on precisely when it was that the lines were drawn. Ms. Emily Coyle recalled that the painting took under an hour. Mr. Coyle took the view that the lines disrupted his customers and that the placing of the bollard took up a valuable space.
30. I am satisfied that the painting of the lines caused some disruption in the use of the car park for a short time. That was inevitable but the painting of the lines was perfectly reasonable and it was done in the exercise by Mr. and Mrs. Coughlan of the right they had reserved, or had spelled out, in the lease, to manage the use of the carpark.
31. I am satisfied that the lines, when painted, disrupted Mr. and Mrs. Coyle’s customers in parking whenever, and wherever, and for so long as they liked. That was the whole point of the lines and the signs. The bollard did not take up a space which was valuable to Mr. Coyle but ensured that a space which was assigned to and valuable to any disabled member of the Bridge Club would be available for that member when required. The bollard, no less than the lines, was lawfully placed in the exercise by Mr. and Mrs. Coughlan of their rights.
32. A quite inordinate time was spent viewing and discussing the video tapes of three incidents, not only what was happening and what the videos showed, and did not show, but the make, model and ownership of the vehicles. These incidents were said to show the wrongful conduct of the defendants.
33. The first was taken on 28th July, 2018. The video does not show, but the witnesses described, that Mrs. Coughlan, on driving into the carpark, found her way blocked by a red jeep. She is said to have beeped her horn and flashed her lights, which drew Mr. Coyle to the door of his premises and Mr. Coughlan out into the car park in his wet gear. The video does not show, but Mr. Coyle described, that when Mrs. Coughlan flashed her lights or sounded her horn, he asked one of his customers to move a black car. The black car, before it was moved, had not been causing an obstruction but it was moved to a place where it prevented Mrs. Coughlan from reversing into her space. Mrs. Coughlan wanted the black car moved. Mr. Coyle took the view that it had been moved once and he blocked Mrs. Coughlan from entering the shop to ask the owner of the car to move it. The situation was eventually diffused by Mr. Coughlan encouraging Mrs. Coughlan to drive, rather than reverse, into the space. This unedifying spectacle was said to be evidence of intimidation by Mr. and Mrs. Coughlan. It was not. It showed boorish behaviour on the part of Mr. Coyle.
34. The second video was of an incident on 4th September, 2018. A Sugar Sisters customer who wished to park in the carpark – elsewhere than in a Sugar Sisters space – was turned away by Mrs. Coughlan. Before the video started, Mrs. Coughlan attempted to get the attention of those within the demonstration area by knocking on the window. A fair amount of time was spent debating whether Mrs. Coughlan tapped, or rapped, or knocked, or banged on the window. Ms. Emily Coyle was indignant that Mrs. Coughlan had the temerity to make any approach to her because, she said, Mrs. Coughlan had been told by Mr. Coyle not to talk to the staff. By the time of the incident, Miss Emily’s demonstration had been going on for an hour and a half. As far as Ms. Emily was concerned, if Mrs. Coughlan had something to say she should contact her father: and she said so. As far as Ms. Coyle was concerned, the disturbance of her icing demonstration during the day to have cars which ought not to have been there moved, was no different to David disturbing the bridge game in the evening to have cars which were entitled to be there moved to facilitate the departure of cars which ought not to have been there.
35. To the extent that it is necessary for the High Court to decide the issue as to the strength or volume of the knock on the window, I find that it was neither a tap nor a bang, but a good, sharp and probably testy rap.
36. The video records Ms. Emily Coyle advising her customer as to the availability of parking locally and Mrs. Coughlan saying ” You have two spaces and no more.” In Ms. Coyle’s view, Mrs. Coughlan was brusque and was harassing her customer. In my view Mrs. Coughlan was firm and clear. The Coyles had set their faces against abiding the parking rules and if Mrs. Coughlan was brusque, she was entitled to be. There is no evidence in this clip of harassment.
37. On Mr. Coyle’s view of the world, any breach by Mr. and Mrs. Coughlan of his edict on 6th July that they should not approach his staff or customers was a breach of their covenant for quiet enjoyment. I reject that argument. Mr. and Mrs. Coughlan were perfectly within their rights to complain about irregular parking.
38. The third incident was the most serious. The video did not show, but Mr. Coughlan described, and was not contradicted, that on 8th September, 2018 Mr. Coughlan saw Mr. Coyle direct one of his customers to park in a space which was not a Sugar Sisters space, at a time when one of the Sugar Sisters spaces was free. Mr. Coughlan went to the door of the shop and asked Ms. Emily to get her father. Mr. Coyle came to the door, caught Mr. Coughlan by both elbows, and pushed him backwards down the wheelchair ramp. Undaunted, Mr. Coughlan returned, he said, to deliver his message, or as Mr. Coyle saw it, to enforce his will in relation to parking. One of the Misses Coyle videoed what happened next. The video shows Mr. Coughlan coming to the door of the shop and shows Mr. Coyle pushing him forcibly out the door. Mr. Coughlan is seen to stagger slightly. Then Mr. Coyle follows Mr. Coughlan into the car park, filming. Mr. Coyle, who plainly followed Mr. Coughlan, is heard to ask Mr. Coughlan to stop following him. Mr. Coughlan is heard to say that Mr. Coyle pushed him out (which he had) and Mr. Coyle is heard to say that he has the right to use whatever force he required. At some stage Mr. Coyle called the Gardaí. There was not much, if any, difference between the account given by each of Mr. Coughlan and Mr. Coyle.
39. Mr. Coughlan was 76 years of age. He is fit and well. He is trim and of average build. Mr. Coyle did not say what age he is but he is in his early fifties. He is a very tall, lean, and strong man. The proposition that he or anyone else might have been intimidated by Mr. Coughlan or by Mrs. Coughlan who is a little younger than her husband was risible and Mr. Coyle moved from his suggestion that he had been intimidated to saying that he had been frustrated. I am satisfied that Mr. Coyle was annoyed at being asked to obey the rules and to confine his use of the carpark to that permitted by the lease: and that he made no attempt to hide his annoyance.
40. Mrs. Coyle gave evidence that she was very shocked by what she saw on 8th September. Ms. Emily Coyle gave evidence that she was in complete shock and visibly shaking and that the atmosphere in the shop changed. I am sure that she was, and that it did. It had nothing whatsoever to do with anything that Mr. Coughlan did.
41. In cross-examination it was put to Mr. Coyle that the Gardaí had decided to prosecute him, but not Mr. Coughlan, for assault. Whatever view the Gardaí may have taken of the video, or the reports made to them, was irrelevant to my decision as to what happened but the pending criminal prosecution means that I have to be circumspect in what I say. I will content myself by saying that Mr. Coughlan was perfectly within his rights to go to the door of the shop to remonstrate with Mr. Coyle and that there is no evidence whatsoever of Mr. Coughlan intimidating Mr. Coyle.
42. On 10th September, 2018 Mr. Coyle applied ex parte to the High Court for injunctions restraining Mr. & Mrs. Coughlan from entering the demised premises and from interfering, watching, besetting, threatening, or otherwise approaching him or Mrs. Coughlan, or their staff, servants, customers or agents of Sugar Sisters. Mr. Coyle was given leave to effect short service of a motion but did not issue his summons until 7th November, 2018.
43. By letter dated 19th September, 2018 Mr. & Mrs. Coughlan’s solicitors called upon Mr. Coyle to provide, by the following Friday, evidence of the discharge of all outgoings on the premises; evidence of insurance as required by Special Condition 3 of the lease; evidence of the discharge of commercial rates; and evidence of the discharge of the management fee which, by Special Condition 2, was payable to Mr. & Mrs. Coyle.
44. In his reply of 21st September, 2018 Mr. Coyle protested that the time allowed was insufficient and expressed concern as to the rationale for the request and suspicion that Mr. and Mrs. Coughlan hoped to gain the justification for evicting him. Mr. Coyle was perfectly right. I am quite satisfied that Mr. and Mrs. Coughlan had had enough of Mr. Coyle and, although the rent was at that time paid up to date, had come to the view that he was more trouble than he was worth. Mr. and Mrs. Coughlan’s motivation, however, is irrelevant in law.
45. On 6th November, 2018 Mr. and Mrs. Coughlan gave notice pursuant to s. 14 of the Conveyancing Act, 1881 complaining of breach of covenant on the part of Mr. and Mrs. Coyle in failing to pay the rates, failing to maintain insurance as required, and causing a nuisance and obstruction by parking; and threatening forfeiture unless the breaches were remedied in seven days. By delivery of their counterclaim on 4th December, 2018 (to which Mrs. Coyle was joined) Mr. and Mrs. Coughlan formally re-entered and forfeited the lease.
46. There was some discussion in the course of the hearing as to whether the fact that Mr. and Mrs. Coyle had an arrangement with Kildare County Council to pay arrears of rates by way of instalments meant that the rates were paid up to date, and whether a policy of insurance which was obviously voidable for breach of warranty was sufficient compliance with the covenant to insure, but in the event those issues evaporated.
47. About a week before the trial started, Mr. Coyle returned the keys to the property. At the trial Mr. and Mrs. Coyle agreed that the forfeiture had been effective and said that they were not making any claim for relief against forfeiture. They declared themselves willing to renegotiate the lease or to take a lease on terms that would allow them and their customers to park as many cars as they liked for as long as they liked, but did not wish the lease which they had to be reinstated.
48. It was common case that the rent was paid up to the end of November, 2018 and that nothing had been paid since. It was not contested that the value of the use and occupation was the same as the rent which had been agreed. Besides the rent, Mr. and Mrs. Coyle had the benefit of services for which they agreed to pay €2,000 per annum by monthly instalments. I measure the value of the use and occupation at €2,166.67 per month.
49. Mr. Coyle’s legal submission was not easy to follow. He pressed his claim for damages under a number of headings. The substance of his claim was that Mr. and Mrs. Coughlan had breached the covenant for quiet enjoyment by imposing unreasonable restrictions on their use of the carpark and by intimidation. It was argued that by reference to their initial proposal and the conduct of the parties in the first seven months, Mr. and Mrs. Coyle had ” an implied contract that ran alongside an express contract “. In defence to the counterclaim, he argued that clause 8 of the letting agreement was ” devoid of fairness and proportionality ” and that the forfeiture of the lease meant that the counterclaim was a nullity. He argued that in view of Mr. and Mrs. Coughlan’s conduct there should be no order as to costs.
50. Mr. Coyle’s claim is entirely devoid of merit. Mr. and Mrs. Coughlan’s tolerance of large numbers of Sugar Sisters customers parking for long periods of time at the weekends did not give rise to a right to continue to do so, still less to a right to do so on weekdays. By encouraging their customers to park all day on weekdays, Mr. and Ms. Coyle introduced chaos, to the great inconvenience of Mr. and Mrs. Coughlan and the other tenants and their customers. Mr. and Mrs. Coughlan were perfectly entitled to insist on compliance with the terms of the letting agreement and to put the regulation of the car park on a more formal footing. Whether the regulation of parking was required for health and safety reasons is irrelevant.
51. It is settled law that neither evidence of antecedent negotiations nor subsequent conduct is admissible in construing a contract. Apart from that, I cannot forbear to observe that it was not suggested that Mr. and Mrs. Coughlan had ever said or given reason to believe that Mr. and Mrs. Coyle would have any more than two spaces available to them or their customers.
52. There will be an order dismissing the action with an order for payment by the plaintiff of the defendants’ costs, including all reserved costs, and the costs of discovery.
53. On the counterclaim there will be an order against both defendants to counterclaim for possession of Units 1 and 2 Acol House, Courthouse Square, Maynooth, Co. Kildare; a decree for €15,166.00 for mesne rates; and an order for costs.