THE HIGH COURT
[2025] IEHC 361
2008 547 S
BETWEEN
JOSEPH CORCORAN
PLAINTIFF
AND
EASSDA GROUP LIMITED, EASSDA IRELAND LIMITED
AND ALASTAIR JACKSON
DEFENDANTS
AND
PROMONTORIA EAGLE LIMITED AND KEN FENNELL
NOTICE PARTIES
2016 6043 P
BETWEEN
KEN FENNELL
PLAINTIFF
AND
JOSEPH CORCORAN AND KATHERINE CORCORAN
DEFENDANTS
2020 4050 P
BETWEEN
JOSEPH CORCORAN AND KATHERINE CORCORAN
PLAINTIFFS
AND
PROMONTORIA EAGLE LIMITED AND KEN FENNELL
DEFENDANTS
JUDGMENT of Mr. Justice Brian O'Moore delivered on the 12th day of June, 2025.
1. On the 1st of April 2025 I delivered a ruling on a number of issues which arose from the main judgment in these proceedings, itself delivered in December 2024. One of these matters was the question of the return to the Corcorans of the deposits paid by them in respect of the acquisition of Number 6 Glenair Manor. My ruling of this April set out the submissions of both sides on this question, and concluded with a suggestion that the parties consider agreeing that I would decide the deposits issue in a focused and prompt way given my familiarity with the dispute between the parties. A deadline of the 17th of April was given within which the parties were to respond to that proposal. While the Corcorans agreed that I could decide the deposits issue, the Promontoria interests did not. Subsequently, a hearing was required in connection with a now resolved issue concerning the provision to the Corcorans of the DAR transcripts of the trial. The parties were given notice that they would be asked, at that hearing, to assist the court by providing the following information:
a. If I were to decide the deposits issue, would further evidence be required;
b. If so, from what witnesses or type of witnesses would further evidence be needed;
c. Would further discovery be required;
d. In very general terms, if further discovery were needed, what classes of documents would be sought;
e. Would the joinder of other parties be required;
f. Apart from written legal submissions, and a hearing for oral submissions to conclude within 2 days at most, would any further steps have to be taken to allow me to decide the deposits issue?
2. At the hearing on the 27th of May, Mr. Corcoran submitted that there was a dispute about the provision of the Home Bond certificate, and discovery on this issue would be needed. He said that he would also require evidence from Ms. Grainne White as to the provision of the Home Bond certificate to his solicitor (Mr. Roundtree) and as to the date this was provided. Thirdly, the Corcorans would need to see the letter of undertaking sent from Ms. White to Bank of Ireland referred to in a facility letter but not previously provided. Fourthly, Mr. Corcoran stated that he would need evidence about what happened to the funds relating to the sale of the properties at Glenair Manor; in particular, he wished to know whether the funds had ended up with the builder or the bank. Finally, Mr. Corcoran stated that Ms. White should be joined to the proceedings in order to decide the deposits issue. It was agreed between the parties that (as noted in my ruling of the 1st of April 2025) there are already in existence proceedings taken by the Corcorans against Ms. White and Mr. Stapleton (the first receiver) concerning the return of the deposits.
3. In reply, counsel for the Promontoria interests argued that the issue of the Home Bond had already been addressed in the judgment of Roderick Murphy J. Counsel's basic position was that, until the Corcorans set out fully the evidence and discovery they required, the Promontoria interests had to reserve their position on the need for any such evidence and discovery, and whether Promomtoria in turn would need to seek discovery or call fresh evidence. Counsel also kept an open stance on whether fresh pleadings might be required given the breadth of the matters which Mr. Corcoran felt were relevant to the deposits issue.
4. What is now contemplated, by both parties, involves far more than the limited and focused hearing which I had in mind when inviting agreement that I would decide this issue. Even without repleading, as the moving parties seeking return of the deposits the Corcorans have set out a range of evidence and discovery which will transform the deposits issue from a manageable add on to the existing proceedings into an action in itself. Of course, repleading will be required if (as Mr. Corcoran proposed) Ms. White is now to be joined to the case. As Ms. White may well be separately represented, the current action will be further reinvented as a three corner fight as opposed to its current form.
5. I have great sympathy for the Corcorans on this procedural question. A decision on what happens to the deposits is logically appropriate once the contracts have been found to be at an end. However, the fundamental obstacle to me now deciding the issue is the fact that the Corcorans have not included it in their pleadings. I had explored precisely what might be involved in determining the deposits issue so that I could assess whether it could be folded into the existing actions, notwithstanding the important facts that the issue is unpleaded, that the trial has concluded, and that judgment has been delivered on all of the many disputes between the parties. I have concluded that there is simply too much required for this to be seen as an issue that can properly be treated as an addendum to the original actions. In coming to this decision, I have had regard to all of the arguments advanced by the parties on this issue and considered by me in my April Ruling. I have afforded particular importance to the caselaw on how trial judges are limited in their jurisdiction by the pleadings in any given case. While by no means a decisive factor, I have also kept in mind the fact that the Corcorans have issued proceedings in respect of the deposits against other parties; as identified in my April Ruling, no reason has been advanced as to why that action cannot result in vindicating the rights of the Corcorans in this regard.
6. In order to give the Corcorans the opportunity to consider the DAR transcripts of what was a relatively lengthy and involved trial, the Order in the plenary actions will not be perfected before the 30th of June 2025. The same will apply to the Order in respect of the application to appoint a receiver to 6 Glenair Manor. With regard to the application to appoint a receiver to the open space at Glenair Manor, given the death of the proposed receiver (of which I was notified on the 11th of June) no Order will be drawn and the Corcorans will be given liberty to apply to me in respect of the person now to be appointed receiver over that property.