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Cite as: [2015] IECA 36

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Judgment


Title:	Harrahill -v- Swaine
Neutral Citation:	[2015] IECA 36
Court of Appeal Record Number:	2014 1228
Date of Delivery:	13/02/2015
Court:	Court of Appeal
Composition of Court:	Peart J., Irvine J., Mahon J.
Judgment by:	Irvine J.
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Peart J
Irvine J.
Mahon J

Neutral Citation Number: [2015] IECA 36

Appeal No: 2014/1228

Gerard Harrahill

Plaintiff/Appellant

and

Eoin Swaine

Defendant/Respondent

Judgment of the Court delivered on the 13th February 2015 by Ms Justice Mary Irvine

1. This is the plaintiff/appellant’s appeal against the judgment and order of the High Court (Barrett J.) made on 28th February 2014.

2. On the aforementioned date, the learned trial judge adjourned the within summary summons proceedings for plenary hearing. He did so in circumstances where he expressed himself satisfied that the defendant, in his various affidavits filed in the matter, had demonstrated a reasonable probability of having a real or bona fide defence to the plaintiffs claim, that being the test advised in many decisions including that of McKechnie J. in Harrisrange Limited v. Duncan [2003] 4I.R., when a court is faced with an application for summary judgment.

3. The background to the proceedings is that in April 2012 the Revenue Commissioners (“the Commissioners”) through their nominee, Mr. Harrahill, commenced proceedings against Mr. Swaine, a solicitor, seeking to recover a sum of €1,692,849.12. That sum was later reduced to a claim for €1,662,288 having regard to a number of revised assessments submitted by the defendant and which were made subsequent to the issue of the proceedings.

4. The sum claimed by The Commissioners is in respect of arrears of income tax, PAYE, PRSI, VAT, CGT and CT together with interest allegedly due in respect of the period 2004 to 2012.

5. The plaintiff’s motion seeking liberty to enter final judgment, which was issued in January 2014, spawned several affidavits which were sworn on behalf of the parties.

6. From the outset, Mr. Swaine maintained that as a result of a meeting between himself and two Revenue officials on 20th June 2011 that the Commissioners had agreed to forebear in issuing proceedings to recover his then outstanding tax liabilities on the terms set out at para. 7 of his first replying affidavit. That paragraph reads as follows:-

"7. I say that however, discussions were had with the said Christina O’Toole and Jimmy Dillon and an agreement was reached with them to the effect that:-

(a) I would rearrange my affairs so that my tax liabilities (that had been agreed with the Revenue Commissioners) would cease to increase by virtue of my restructuring my affairs into the future including, in particular:-

(i) the restructuring of the practice so that I would form a partnership and

(ii) restructuring of my affairs so that the public house would be incorporated and operated through a company.

(b) The tax refund of €186,617 would be set off against the company’s liabilities and not my own liabilities.

(c) In consideration for the above the Revenue Commissioners would not pursue the outstanding tax liabilities (the subject matter of the proceedings herein) until such time as the above mentioned nursing home cases had resolved and the legal fees had been paid and then at that stage the liabilities to the Revenue Commissioners would be fully or significantly discharged out of the legal fees expected to arise.”

I will refer to this agreement as the “repayment agreement” as that is how it is described by the trial judge in his judgment.

7. As may be inferred from the aforementioned averment, at the time that the Commissioners were seeking to recover the sums claimed in these proceedings, the defendant was handling approximately one hundred and forty cases in which his clients were seeking repayment of what were alleged to have been illegal charges made in respect of nursing home care. It was anticipated that all of these claims would be successful and that he would receive substantial fees when the litigation was concluded.

8. Mr. Swaine, in his affidavits, maintained that the repayment agreement referred to at para. 7 of his affidavit was supported by a letter of undertaking which he furnished to the Commissioners dated 21st June 2011 which referenced the meeting at which the agreement had allegedly being concluded and a letter in reply from the Commissioners dated 14th July 2011.

9. Mr. Swaine also maintained that that he had fully complied with the repayment agreement in that he:-

(a) had restructured his practice and formed a partnership and had further rearranged his affairs so as to ensure that his tax liabilities did not continue to increase;

(b) had allowed a sum of €186,617.00, which was due to him personally as a tax refund, to be set off against the liability due to the Revenue Commissioners by a company under his control, and

(c) had transferred a particular licensed premises, as required, to operate as a limited liability company.

10. While the defendant had hoped that the nursing home litigation would have been concluded and his liabilities discharged to the Commissioners by October 2011, he maintained that this did not matter given that there had been no deadline for the settlement of these cases as a term of the repayment agreement. Accordingly, in light of his compliance with the terms of that agreement he maintained that the Commissioners in issuing the within proceedings, were in breach of their obligations to forebear from doing so and that he had a bona fide and credible defence to the claim.

11. Mr. Swaine also made a number of complaints in his affidavits regarding the computation of the sums claimed. However, it appears that he did not pursue these complaints in the course of the High Court hearing. It was also accepted on this appeal that the effect of S.933 of the Taxes Consolidation Act 1997 is that the sums the subject matter of this claim became final and conclusive against the defendant given that he had not appealed the underlying assessments. Further, Mr. Swaine did not file a supplemental affidavit to contest the schedule of his indebtedness exhibited in Mr. Dillon’s affidavit of 13th October 2013. Accordingly, there is no need to consider the validity of the sum claimed as forming a possible basis upon which these proceedings could be defended.

12. The plaintiffs’ position vis-à-vis the repayment agreement contended for by Mr. Swaine was dealt with by Ms. Scanlon in her affidavit of 16th April 2013 and Mr. Dillon in his affidavit of the 13th October 2013. Those affidavits accept that the Commissioners agreed to postpone issuing proceedings against the defendant on two conditions, namely:-

(i) that all of his fees arising from the nursing home litigation would be paid over to them by October 2011, and

(ii) that he would remain fully tax compliant thereafter and would file all future returns with the appropriate payment by their due date.

13. In her submission on the plaintiff’s behalf, Ms Moorhead S.C conceded that in the light of Mr Dillon’s affidavit, which referred to the defendant’s hope that the nursing home litigation would be settled by October 2011 rather than to any specific commitment to make the payment by the end of that month, it would be difficult to contend for a strict application of the first of these conditions. However, she submitted that the court could ignore this condition given that the defendant had clearly been in breach of the other term of the agreement.

14. In this regard, Mr Dillon, at para. 6 of the final affidavit sworn in the proceedings drew the courts attention to the fact that the defendant had failed to to keep his tax affairs up to date. He backed up that assertion by referring to four examples of what he maintained were clear examples of his non compliance.

15. Mr. Swaine did not file any supplemental affidavit seeking to dispute the matters last desposed to by Mr. Dillon.

Judgment of Barrett J.
16. The conclusions of the learned High Court judge can be summarised as follows. Firstly, he appears to have accepted that the defendant was lawfully indebted to the plaintiff in the sum of €1,662,288.01 together with interest thereon. No argument was apparently made to dispute the Commissioners submission that in the absence of any appeal by the defendant against the assessments underlying the proceedings, that the same had become binding and conclusive by reason of s. 933 of the Taxes Consolidation Act 1997.

17. Secondly, the trial judge concluded that the defendant had made out a case that he had entered into a binding repayment agreement with the Commissioner in June 2011 whereby they agreed to forbear in issuing proceedings against him in respect of his then outstanding liabilities on terms which included a requirement that he would arrange his tax affairs such that his liabilities would cease to increase. The trial judge concluded that the defendant, on his own evidence, had not acted in compliance with that agreement and in such circumstances he was not in a position to contend that the plaintiff had issued the within proceedings in breach of that agreement.

18. The most critical conclusion reached by the trial judge concerned a possible defence that he considered was open to the defendant based upon the combined effect of his written undertaking to the Commissioners of 21st June 2011 and their response thereto. He concluded that it was arguable that the aforementioned undertaking when considered separately from the repayment agreement but in conjunction with the Commissioners letter in response of the 14th July arguably gave rise to binding contractual agreement the terms whereof precluded the Commissioners from pursuing the defendant until the resolution of the nursing home litigation

19. Finally, the trial judge gave some consideration as to the potential applicability of the doctrine of promissory estoppel and whether or not such a doctrine might afford the defendant and arguable ground of defence. Having stated that such a line of argument has not been advanced in the proceedings, he went on to state that it was not very clear to him that the defendant had no case to make that the Commissioners were not estopped from demanding the amounts sought in these proceedings until the defendant had received his fees in the nursing home litigation.

The Appellants Submissions
20. The central argument raised by the plaintiff on this appeal concerns the trial judge’s conclusion that the combined effect of the correspondence dated 21st June 2011 and 14th July 2011 could arguably constitute a stand alone agreement preventing the Commissioners from issuing proceedings against the defendant in advance of the conclusion of the nursing home litigation, thus providing the defendant with the possibility of having an arguable bona fide defence to the present action.

21. Ms. Moorehead submitted that the defendant had never argued for the existence of an agreement that was not subject to the conditions set out in paragraph 7 of his affidavit. It was therefore not open to the trial judge to refer the proceedings to plenary hearing on the grounds that the defendant could possibly contend for an agreement that did not include a condition that he remain tax compliant.

22. Ms. Moorehead submitted that the defendant in his own affidavits at all times treated his undertaking of the 21st June 2011 as a document referencing the agreement that had been reached with the Commissioners at their meeting the previous day, that being the repayment agreement set out at para. 7 of his affidavit. Accordingly, the undertaking of 21st June was incapable of being construed in any other fashion.

23. Even if it was open to the learned High Court judge to consider the possibility of a defence based upon a separate agreement comprised in the correspondence of 21st June 2011 and 14th July 2011, this correspondence could not, Counsel submitted, legally bind the parties because there was no consideration for any such agreement. The only consideration that had moved from the defendant in support of the Commissioner’s forbearance to sue was that referred to at para. 7 of his affidavit.

24. Ms Moorehead submitted that in circumstances where the trial judge had found on the facts that the respondent had been in breach of the terms of the agreement referred to in his own affidavit para. 7, he was bound to enter judgment in favour of the plaintiff.

The Respondents submissions
25. Mr. Power, B.L. on the defendant’s behalf, submitted that his client had established, on the facts and on the law, that there was a reasonable probability of him having a real or bona fide defence to the proceedings and that he had met the threshold required in Aer Rianta and Harrisrange to have the proceedings referred to plenary hearing.

26. Mr. Power submitted that his client was arguably not in breach of the repayment agreement. On a proper construction of the terms set out at para. 7(a) of the defendant’s affidavit, Mr. Swaine had merely agreed to rearrange his affairs such that his historic liabilities would not increase. Clause 7(a) did not arguably relate to Mr. Swaine’s ongoing and future tax compliance. He supported this argument by reference to his clients letter of undertaking dated 21st June 2011 which, at para. 2 thereof referred to his “outstanding liability” but made no reference to future tax compliance. It should be said that was a novel argument, insofar as it had not been made in the High Court. Nonetheless, given the significance of what is at stake for the parties on this appeal, the court was satisfied that it should permit the argument to be advanced and its determination thereon is dealt with later in this judgment

27. Mr. Power submitted that outside of the agreement referred to at para. 7 of the defendant’s affidavit it was open to the trial judge to conclude, as he did, that his clients undertaking of 21st June 2011 and the Commissioners response thereto of 14th July 2011, could arguably constitute a binding agreement to which only one condition attached, namely his client’s obligation to pay his fee income from the nursing home litigation, to the Commissioner in part or complete discharge of his tax liabilities whenever that litigation concluded. That promise, he submitted, provided the necessary consideration for the Commissioner’s forbearance.

Decision:
28. The within appeal must be considered by reference to the approach to be taken by a trial judge on an application for summary judgment. In this regard, both parties are agreed that assistance is to be found in the decisions, amongst others, of the Court in Aer Rianta v. Ryanair [2001] 4IOR607, Harrisrange Limited v. Duncan [2003] 4IR, McGrath v. O’Driscoll [2006] IEHC195 and Allied Irish Banks v. Farrell [2014] IEHC395.

29. In Aer Rianta Hardiman J. advised that the question that the court had to resolve on an application for summary judgement was:-

“Is it very clear that the defendant does not have a defence? Is there no issue to be tried or only issues which are simply and easily determined? Do the defendants affidavits fail to disclose even an arguable defence?”

30. In Harrisrange Limited v. Duncan McKechnie J. advised that the power to grant summary judgment should be exercised with discernable caution and he advised that a defendant should be considered to have a bona fide defence if he demonstrated “a fair or reasonable probability of having a real or bona fide defence.”

31. In McGrath v. O’Driscoll the High Court laid out the basic test as to whether a legal dispute should be decided on summary proceedings or not:-

“So far as questions of law and construction are concerned the court can, on a motion for summary judgment, resolve such questions (including, where appropriate, questions of the construction of documents), but should only do so were the issues which arise are relatively straightforward and were there is no real risk of an injustice being done by determining those questions within the somewhat limited framework of a motion for summary judgment.”

New Argument
32. Before proceeding to consider how the trial judge applied the aforementioned principles to the evidence before him, it is important to digress momentarily to consider the argument which Mr Power raised for the first time in the course of this appeal and to which the court has already briefly referred.

33. The court rejects the submission that the defendant could credibly advance a bona fide defence to this claim based on an argument that the true construction of the obligation as set out at para.7 (a) of Mr. Swaine’s affidavit was one directed solely to his obligations in respect of his historic tax liabilities and was not one that required him to keep his future tax affairs up to date. The court is satisfied that such an interpretation is entirely at odds with Mr Swaine’s own evidence as to his understanding of the terms of the agreement. This is apparent from the manner in which he responded to a number of the averments made in the affidavits sworn on behalf of the Commissioners, as I will now try to demonstrate.

34. Ms. Scanlon, on The Commissioners behalf, in her affidavit of 16th April 2013 at para. 6 stated as follows:

“I say and have also been advised that Revenue advised the defendant that any undertaking and/or agreement would be based on the strict proviso that all future returns would be filed by their due dates with the appropriate payment outstanding if any was declared on foot of the return. . . . In breach of this fundamental condition of the agreement between the parties, the defendant failed in his obligations pursuant to the agreement and pursuant to Statute in that he did not file all future returns by their due date with the appropriate payment. I say that the inclusion of this vital condition in the agreement appears to be accepted by the defendant at para. 7(a) of his affidavit where he stated ‘I would arrange my affairs so that my tax liabilities (that had been agreed with the Revenue Commissioners) would cease to increase.”

35. In his replying affidavit sworn on the 8th April, 2013, Mr. Swaine did not contest his obligations as advised by Ms. Scanlon. He accepted those obligations and went on to contend that he had filed all his returns, made all of his payments and that he was up to date. At no stage did he seek to assert that he was not obliged to keep his returns and payments up to date. Indeed, at para. 7 of his affidavit sworn on 8th April 2013 he stated, “I have filed all returns and made payments and I am up to date”.

36. Neither did the defendant take any exception to the same contractual obligation which was referred to at para. 5 of the affidavit of Mr. Dillon nor to his statement at para. 6 thereof wherein he referred to the defendant’s default in keeping his tax affairs up to date.

37. Accordingly, this court is satisfied that any submission which seeks to contend for an agreement between the parties which did not include an obligation on the part of the defendant to keep his ongoing tax affairs in order lacks credibility and is in any event unsupported by the evidence.

Substantive Argument
38. As to the substantive argument raised by the appellant on this appeal, this court accepts the submissions made on behalf of the Commissioners that the learned High Court Judge fell into error in concluding that the defendant had established the possibility of a bona fide defence based on an agreement which commenced with the defendants letter of undertaking dated the 21st June 2011.

39. Insofar as the trial judge concluded that the defendant’s letter of undertaking of the 21st June 2011 and the Commissioners reply of the 14th July might arguably be considered to be a new agreement whereby the defendant was not obliged to comply with the conditions set out at para 7 of his first affidavit, there was no evidential basis upon which he could have reached that conclusion.

40. The defendant had never sought to advance the case that he had entered into any agreement other than the repayment agreement referred to in his first affidavit. At all times he maintained that the agreement he had reached with the Commissioners on the 20th June 2011 was that they would forbear from issuing proceedings on condition that he complied with the conditions set out by him that affidavit.

41. The defendant’s defence as advanced on affidavit was based on his assertion that he had complied with all of the conditions of the agreement set out at para 7 of his affidavit and that he had acted to his detriment in so doing. This is evident from a number of paragraphs in his second replying affidavit of the 8th April 2013.

42. At para 7 of that affidavit the defendant states:

“Essentially Jackie Scanlon avers that I breached my undertaking to the Revenue Commissioners in that I failed to file future returns by their due date with the appropriate payment. I say and believe that I have filed all returns and made payments and I am up to date”.

43. Another example of the defendant’s belief as to the agreement that was binding upon the parties is to be found at para 11 of the same affidavit:-

“For the sake of completeness I say that I agreed to discharge the company liability of € 186,617 solely on the basis that the revenue Commissioners would not pursue me in respect of my liabilities pending the conclusion of the nursing home cases. There is and was no other advantage to me agreeing to this course of action. I say and believe that in the circumstances the Revenue Commissioners are estopped from bringing these proceedings”.

44. Even leaving aside Mr. Swaine’s own evidence as to the terms of the repayment agreement, his letter of undertaking of 21st June 2011 clearly references the meeting held between the parties the previous day. Further, the Commissioners in their response of 14th July 2011 also referred to the conditions attached to the repayment agreement and in particular the progress made by the defendant in complying with his obligation to operate the named public house through a limited liability company.

45. Nowhere in his affidavits did the defendant contend that there was some other agreement whereby, in consideration of his undertaking to pay to the Commissioners his fee income from the nursing home litigation they would agree not to sue him

46. Accordingly this court is satisfied that the defendant could not credibly, at a plenary hearing, contend for a concluded stand alone agreement, detached from the conditions contained in the repayment agreement, the terms whereof are to be found in his letter of undertaking of the 21st June 2011 and the Commissioners response of 14th July 2011.

47. Regrettably, the trial judge appears not to have canvassed with the parties whether it was open to him on the facts and/or as a matter of law to conclude that the defendant had established the possibility of an arguable defence based on the correspondence dated 21st June 2011 and 14th July 2011. The appellant accordingly had no opportunity to draw his attention to the fact that the defendant’s own evidence could not support such an agreement. For the same reason, the appellant was not in a position to argue that even if the defendant had contended for a new agreement stemming from his undertaking of the 21st June 2011 and the Commissioners reply of the 14th July 2011, that as a matter of law that agreement was not enforceable as it was unsupported by consideration, a submission with which this court is in agreement.

48. As for the trial judges conclusion that there was arguably consideration for this new agreement, this court does not agree with the statement he made when referring to the letter of the 21st June 2011, that “The undertaking volunteered by Mr Swaine is not contended to have been gratuitous.” It is certainly the case that the defendant has at all times contended that the undertaking he gave on 21st June 2011 was not gratuitous because, as he stated on so many occasions in his affidavits, he was forced by the conditions of the agreement set out at para. 7 of his affidavit to perform a number of burdensome obligations. If, however, the undertaking is to be construed in isolation from the repayment agreement, the undertaking had to be gratuitous as there were no conditions over and above a promise to pay a sum he already accepted he owed.

49. It is also difficult to see how the learned high court judge came to the conclusion, as he did, that the “Revenue appear to have considered the undertaking as something above and beyond the repayment agreement” in circumstances where it gave them nothing in addition to the agreement referred to at para. 7 of Mr. Swaine’s affidavit.

50. The court accepts the submissions of Ms. Moorhead, based the decisions of the court in Truck and Machinery Sales v. Marubeni [1996]1IR12, Re Selectmove Limited [1995] 2 AE R 531 and The Barge Inn Limited v. Quinn Hospitality Ireland Operations 3 Limited [2013] IEHC387 that a promise to pay a sum or part of a sum which the debtor is already bound by law to pay to the promisee cannot afford the consideration necessary to render enforceable an agreement regarding the repayment of that debt.

51. The origin of this rule is to be found in Pinnel’s case [1602] 5CO REP 177a and its status in this jurisdiction has been considered in significant detail in a number of relatively recent decisions. All of these chart the acceptance of the principle by the Court of Appeal of England and Wales in Re Selectmove Limited [1995] 1WLR474. In that case the Inland Revenue made a statutory demand for payment of certain tax liabilities. It later presented a petition to wind up the debtor company. In response, the company sought to resist the making of the winding up order arguing that it had a bona fide dispute to raise regarding it’s liability for the sum claimed. The company sought to contend that the Inland Revenue had accepted an offer which it had made to pay its existing liabilities by way of instalments and thereafter to discharge its future liabilities as they fell due. Having considered the rule in Pinnel’s case and the decision of the House of Lords in Foakes v. Beer [1884] 9APP Cas 605, the Court of Appeal concluded that the company’s promise to pay its existing liabilities by instalments and its future debts as they fell due could not constitute consideration for the agreement advanced by the company, notwithstanding what the company submitted was the practical advantage to the Inland Revenue of such an agreement, given that it was likely to recover more from the company by adopting this approach than by putting the company into liquidation. Accordingly, even if the company’s offer had been accepted, the agreement was unenforceable for want of consideration.

52. The decision of the Court of Appeal in Re Selectmove was endorsed by Keane J. in Truck and Machinery Sales Limited v. Marubeni Komatsu [1996] 1IR12. In that case the plaintiff company issued proceedings seeking to restrain the defendant creditor from presenting a winding up petition. It maintained that it had a bona fide dispute to raise regarding its liability to pay the sum claimed. The plaintiff company wished to rely upon a fax which had been sent by the defendant company to its bankers advising that provided the plaintiff company made a prompt specified part payment of the monies outstanding that it would await payment of the balance until certain other specified events had occurred. The plaintiff sought to argue that by its actions the defendant had waived the balance of the debt or, alternatively, that it was estopped, by virtue on the facts of the case from presenting the petition.

53. In addressing the submission made on behalf of the defendant that there was no consideration to support the alleged agreement to waive the debt, Keane J. stated (at p. 28):-

“It has been settled law since the decision of The House of Lords in

Foakes v. Beer

that a promise to pay part of the debt is not good consideration in law. Its applicability in circumstances such as the present was considered by the English Court of Appeal in

Re Selectmove Limited

…where a company claimed that it had come to an arrangement with the Revenue as to the payment of arrears. The Court of Appeal unanimously held that it was bound by the decision in

Foakes v. Beer

to reject the argument that a promise to pay a sum, which the debtor was already bound by law to pay to the promise, could afford any consideration to support the contract”.

54. The aforementioned statement of the law was reinforced most recently in this jurisdiction by Laffoy J. in The Barge Inn Limited v. Quinn Hospitality Ireland Operations 3 Limited [2003] IEHC387 in which she reviewed a significant number of authorities going back as far as Pinnel's case itself.

55. Having regard to the submissions made by Mr. Power on this point and to which I will later refer, it is worthwhile noting that part of Laffoy’s J. decision which deals with the judgement of Lafroy C.J.in Corporation of Drogheda v. Fairtlough 8IRCLR98 were he recited the Common Law principle as follows.

56. At para. 58 of her judgment Laffoy J refers to the following relevant extracts from that judgment:-

“Lefroy C.J. in his judgment delivered in 1855 outlined the Common Law principle as follows (at p. 110):

“The principle of the Common Law, which is, that payment merely of a less sum, when it is what we may call a parol payment or payment in fact, and not a payment in pursuant of a contract by deed, cannot, by the Common Law, be deemed to be any satisfaction whatsoever of a greater liquidated sum; but the law will allow the payment of a smaller sum to be a satisfaction of the greater liquidated sum, if there be, along with the payment of the smaller sum, any collateral advantage, however small, attending the transaction.”

Counsel for the plaintiff emphasised the reference there to “any collateral advantage, however small”. Later (at p. 114), elaborating on the concept of collateral advantage, Lefroy C.J. referred to:

“Some further advantage accompanying the payment and that advantage must be a reasonable one, and must appear on the face of the agreement.”

57. At para. 62 of her judgment Laffoy J. concluded as follows:

“It is beyond question that the rule

in Pinnel’s

case still represents the law in Ireland and this court is bound by it, although the introduction of a new element into the relationship of the debtor and creditor, such as the collateral advantage to the creditor, may remove the relationship from the scope of the rule.”

58. Mr. Power sought to argue that the undertaking given by Mr Swaine in his letter of the 21st June 2011 to discharge his liabilities from the fees received from the nursing home litigation gave the Commisioners such a collateral advantage. He submitted that the undertaking gave them a better chance than they would otherwise have had of recovering the debt. He relied upon the principle in Pinnell’s case to the effect that while payment of a lesser sum in satisfaction of a greater outstanding sum could not provide any satisfaction for the whole debt, the gift of a horse, hawk or robe etc. might provide such satisfaction given that any one of those might be more beneficial to a plaintiff than the money outstanding.

59. Looking at the content of the letter of 21st June 2011 this court is satisfied firstly, there is nothing on the face of the undertaking evidencing any such collateral advantage as Lefroy C.J. stated was required in Corporation of Drogheda v. Fairthlough . The Commissioners were entitled to payment of an agreed sum of money and Mr Swaine promised to pay that sum at a later date. Nothing different or potentially of greater benefit to the Commissioners than the outstanding sum was offered. He did not for example offer to transfer land, property, shares or anything that might be considered to equate with the horse, hawk or robe referred to in Pinnel’s case. There were no guarantees from third parties accompanying the undertaking. Nothing was promised beyond the payment at a later date of a liability which he already admitted was outstanding.

60. Applying the aforementioned principles to the facts of the present case this court is satisfied that it is not possible to argue that Mr. Swaine’s undertaking to discharge the audit liability and outstanding taxes from fees due to his firm from the nursing home litigation is supported by any consideration.

61. For the same evidential and legal reasons as relate to the courts conclusion that the defendant has no possibility of putting forward a credible bona fide defence in respect of any agreement separate to that claimed at para 7 of his first affidavit, he likewise can have no defence to advance grounded in the doctrine of promissory estoppel.

62. Finally, having regard to the plain language of the correspondence under consideration in these proceedings and the very clear evidence of the parties on affidavit, this is not a case were the court believes that oral evidence might impact on the construction those documents. Accordingly the court is satisfied that there is no risk of any injustice being done by determining the legal consequences of the said documents on this appeal.

63. For all of the aforementioned reasons the court will allow the appeal.

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