1. These
proceedings arise out of an agreement entered into on the 13th October, 1994 at
a sitting of the High Court hearing appeals from the Circuit Court in the City
of Galway. It was an agreement between the parties hereto (the Plaintiff, John
Anthony Griffin, acting by his son and attorney, James A. Griffin) and the
Defendant’s estranged husband, Brendan Madden. It is, I think, of some
significance that the Plaintiff and the Defendant are siblings.
2. The
said agreement of the 13th October, 1994 was negotiated by the parties thereto
with a view to compromising all legal proceedings then in being between them
and, indeed, all legal proceedings then in being involving the Plaintiff and
the Defendant and the said James A. Griffin, son of the Plaintiff. In this
regard, I am satisfied by the evidence which I heard that it was an agreement
which was arrived at after prolonged negotiations involving the signatories
thereto and their respective legal representatives, who witnessed those
signatures.
3. Essentially,
the proceedings herein involve an assertion by the Plaintiff that the Defendant
has failed and neglected or has refused to implement the terms of the said
agreement and he seeks an order for specific performance thereof together with
damages for breach of contract and ancillary injunctive relief. While the
Defendant was originally represented by a firm of solicitors, who looked after
her interests insofar as the conduct of these proceedings were concerned up to
the time upon which a date was fixed for the hearing of the case, they have
ceased to represent her interests since that time and she conducted the trial
of the action on her own behalf. In that regard, she gave sworn testimony that
she can no longer afford legal representation.
4. While,
in her defence delivered herein, the Defendant challenges the Plaintiff’s
claim on a variety of grounds, including
(inter
alia)
allegations that no cause of action is disclosed by the Plaintiff, that the
Court does not have jurisdiction to adjudicate upon the Plaintiff’s claim
and that the claim is frivolous, vexatious and an abuse of process, nowhere in
the defence delivered on her behalf is there a challenge to the validity of the
said agreement. However, by a letter dated the 24th January, 2001 addressed by
the Defendant’s then solicitors, Messrs. Martin J. Kearns and Company, to
the Plaintiff’s solicitors, Messrs. Creavin and Company, the
Plaintiff’s said solicitors were requested to consent to the delivery of
an amended defence on behalf of the Defendant, a draft of which accompanied the
said letter. The Plaintiff’s solicitors refused to accede to that
request; indicating that, if the Defendant wished to amend her defence, an
appropriate application in that behalf should be made to the Court. In fact,
no such application was ever made although, in the course of the hearing, I was
furnished with a copy of a draft amended defence which purports to challenge
the validity of the said agreement on a variety of grounds, including an
allegation that the Defendant was induced to execute the said agreement by
duress and fraud on the part of the Plaintiff. Moreover, in the course of her
sworn testimony before me, the Defendant challenged the validity of the said
agreement on the following grounds, namely; (a) that, contrary to what is
stated therein, there was no map annexed to the said agreement at the time that
she executed it, (b) that, while conceding that she executed the agreement on
the advise of her counsel, Mr. Bernard Madden (no relation) and with her
“eyes open” in the sense that she understood what she was doing, it
was not until after she had executed it that she was made aware, firstly, that
her brother, the Plaintiff, would not have been available to give evidence, had
the case not been compromised and, secondly, that the agreement for settlement
was to be signed on the Plaintiff’s behalf by his son, James A. Griffin
under a power of attorney. The Defendant maintained that the failure to advise
her of those two facts before she executed the said agreement amounted to a
misrepresentation on the part of the Plaintiff and his advisors which vitiated
the agreement so far as she was concerned, (c) that she was wrongfully coerced
into participating in the negotiations which led to the said agreement by the
refusal of the Plaintiff and his advisors to consent to an application by her
estranged husband, Brendan Madden, for an adjournment of the proceedings which
were then pending before the High Court on appeal coupled with a threat that,
in the event that the said Brendan Madden had been granted an adjournment, he
would be fixed with the costs thereof which, in the view of the Defendant,
would have been prohibitive, (d) that, as a result of the prolonged
negotiations which preceded its execution, she was exhausted by the time that
she signed the said agreement and would have signed anything to escape from the
Courthouse on that day and, for that reason, she said that the agreement should
not be enforced against her and (e) that she was never told that the said
agreement of the 13th October, 1994 was a new agreement and not, as she
believed, an agreement which was supplemental to an agreement previously
entered into by herself and the Plaintiff on the 3rd November, 1989.
5. While,
as I have indicated, prior to the hearing no application was ever made to the
Court to amend the defence herein delivered on behalf of the Defendant and,
accordingly, strictly speaking, the validity of the said agreement of the 13th
October, 1994 was not an issue which I was required to determine, the fact of
the matter is that, in the course of the hearing before me, the Defendant made
application to me to permit an amendment of her defence to allow her to
challenge the validity of the said agreement; an application which was opposed
by Counsel for the Plaintiff, and, while I never formally adjudicated upon that
application, I did hear evidence which satisfied me on the balance of
probability that the grounds upon which the Defendant challenged the validity
of the said agreement were without foundation. In this regard, while senior
counsel, Mr. George Brady, who negotiated the said agreement of the 13th
October, 1994 on behalf of the Plaintiff, could not say whether or not the map
therein referred to was actually annexed to the agreement at the time that it
was executed by the parties, he was adamant that that map was referred to in
detail throughout the negotiations which led to the said agreement to the
extent that all of the parties thereto, including the Defendant, were fully
aware of the contents thereof. Moreover, while he could not say that the map
was actually attached to the said agreement at the time that it was executed by
the parties, the Plaintiff’s solicitor, Mr. Bernard Creavin, was
satisfied that the map was with the agreement, when it was executed. In the
light of the evidence of Messrs. Brady and Creavin, which I accept, and given
that, while she maintained that the map was not present when she executed the
agreement, the Defendant conceded that she was familiar with the map and with
all the terms of the agreement when she executed it, I am not persuaded that
the agreement can be avoided because of the absence of a map at the material
time (if it be so). Neither am I persuaded that, even if it is a fact that, at
the time that she executed the said agreement, the Defendant was unaware that,
had the appeal which was then pending before the High Court been proceeded
with, the Plaintiff would not have been available to give evidence and/or that
the agreement would be executed on behalf of the Plaintiff by his son under a
power of attorney that that would amount to misrepresentation which would
entitle her to avoid the agreement; particularly, as I was assured by Mr.
George Brady and accept that the Plaintiff was not a necessary witness at the
hearing of the appeal and that he (Mr. Brady) had specific authority from the
Plaintiff to negotiate the agreement on his behalf. In this regard, also, I do
not consider that the refusal of the Plaintiffs advisors (if it be do) to
consent to an adjournment of the appeal which was then pending before the High
Court could possibly amount to duress which wrongfully induced the Defendant to
execute the said agreement, and neither am I persuaded that the
Defendant’s alleged exhaustion at the time that she executed the said
agreement or the suggestion that she did not then appreciate that it was a new
agreement that she was entering into, vitiated the agreement. In that
connection, given that she was advised by Counsel at the time, I have no doubt
but that he would have explained to her that the agreement was a different one
to that which she had signed in November, 1989 and I am quite sure that, if
Mrs. Madden had indicated to her Counsel that she was exhausted or manifested
signs of exhaustion, he would not have permitted her to sign the agreement. In
the light of the foregoing, while, as I have indicated, it was not, strictly
speaking, an issue which I was required to determine, I do not think that there
are any grounds upon which the validity of the said agreement could be
impugned. And I might add that in arriving at that conclusion I was very much
influenced by the fact that, not only did the Defendant execute the said
agreement, but she initialled seven different amendments thereto which had been
made after the original draft had been typed up by the Solicitor who was
representing her at the time.
6. By
Order of the High Court dated the 14th October, 1994 made in proceedings
entitled The High Court, Western Circuit, County borough of Galway, record
number E13/1993 between Brendan Madden, Plaintiff, and John Anthony Griffin,
Defendant, the said agreement of the 13th October, 1994 was received and made a
rule of Court and, as I have indicated, it is my view that it is a valid
agreement. However, notwithstanding that it was executed over 6 years ago, it
has yet to be implemented and, in the light of the evidence which I heard, it
is clear that the failure to implement it is largely, if not entirely,
attributable to the fact that the provisions of Clause 4(c) thereof have not
been complied with, in that, the parties have failed to agree on a boundary
between the properties respectively coloured blue and yellow on the map annexed
to the said agreement. In that regard, Clause 4(c) provides that that boundary
is to be ascertained and agreed by the parties with their respective engineers
from
the title documents
(the emphasis is mine) and that, in default of agreement between the engineers,
an independent engineer would be nominated by the President of the Institute of
Engineers in Ireland to determine the location of the said boundary and that
determination would be final. Arising from the provisions of that clause, I
heard evidence from Mr. Joseph Curley B.E., an engineer then instructed on
behalf of the Plaintiff that, following the said agreement and later in the
month of October, 1994 he met Mr. Malachy Gallagher B.E., an engineer
instructed on behalf of the Defendant, for the purpose of trying to agree the
location of the said boundary. The said meeting took place in the yard at the
rear of the Plaintiff’s premises at 24 Middle Street, in the City of
Galway and Mr. Curley told me and I accept that, without the assistance of any
maps, he and Mr. Gallagher were able to agree the location of the said boundary
from an inspection of the
locus
in quo
.
Significantly, Mr. Curley also told me that the boundary so agreed between
himself and Mr. Gallagher was located in the self same position as that
indicated by the line A/B, coloured red, on a map dated the 17th December, 1998
(drawing number 991/01) prepared by Mr. Frank Harewood, who is also a
consulting engineer, and whose services has been engaged by the Plaintiff to
determine the location of the said boundary by reference to the title deeds to
the properties owned by the Plaintiff and by the Defendant at Middle Street in
the City of Galway. However, although Mr. Curley and Mr. Gallagher were able
to agree the probable location of the said boundary without the assistance of
any maps, Mr. Curley gave evidence that, following that agreement, Mr.
Gallagher produced an architects drawing which, apparently, had been prepared
by a Mr. R.G. Emerson, architect and surveyor, in or about the month of July,
1939 which purported to show a proposed reconstruction of the Defendant’s
premises at Middle Street, Galway and, in particular, purported to identify the
boundary aforesaid at a different location from that which Messrs. Curley and
Gallagher had agreed upon and, of course, at a different location from that
indicated by Mr. Harewood on his map, aforesaid. Mr. Curley gave evidence
that, when Mr. Gallagher produced that architects drawing, he told Mr. Curley
that the Defendant had indicated to him (Mr. Gallagher) that she would not
agree to any boundary other than that which was shown on that drawing.
Accordingly, as Mr. Curley was not prepared to advise the Plaintiff that the
boundary between the properties coloured blue and yellow on the map annexed to
the said agreement of the 13th October, 1994 was located at the place shown on
that architects drawing and the Defendant had indicated that she was not
prepared to agree to any other boundary, there could be no agreement between
Mr. Curley and Mr. Gallagher in that behalf. By way of addendum to his
evidence, Mr. Curley added that, in his view, the red line designated A/B on
the map prepared by Mr. Harewood was the “logical and reasonable
boundary” between the properties respectively coloured blue and yellow on
the said map annexed to the said agreement of the 13th October, 1994; a view
which was endorsed by Mr. James Roche, another consulting engineer, who was
called to give evidence on behalf of the Plaintiff, but who had previously
represented the Defendant’s interests between the years 1990 and 1993,
and who was emphatic in the view that the line A/B on Mr. Harewood’s map
indicated the “
normal
and natural boundary between the two properties
”.
I saw no reason to doubt the evidence of either Mr. Curley or Mr. Roche;
particularly, as their conclusions were not seriously challenged and Mr.
Gallagher was not called to give evidence.
7. As
I have already indicated, the services of Mr. Frank Harewood, a consulting
engineer, had been engaged on behalf of the Plaintiff to survey the area in
dispute and in the light of the maps annexed to the title documents thereto, to
advise on the location of the boundary between the properties respectively
coloured blue and yellow on the map annexed to the said agreement of the 13th
October, 1994. Mr. Harewood gave evidence that he carried out such a survey
and, while doing so, he referred to maps annexed to the documents of title to
the relevant premises of both the Plaintiff and the Defendant and their
respective predecessors in title. In particular, Mr. Harewood gave evidence
that he measured boundaries he could identify on the ground and checked those
measurements against measurements on the maps annexed to the several deeds. In
the course of so doing, he noted that the measurements of the boundaries on the
maps annexed to the title documents of the properties belonging to the
Plaintiff and the Defendant mirrored one another and, accordingly, he concluded
that, in the light of the evidence of the title documents, the proper boundary
between the properties respectively coloured blue and yellow in the map annexed
to the said agreement of the 13th October, 1994 was that denoted by the line
A/B outlined in red on a map (drawing number 991/01) dated the 17th December,
1998 which he had prepared and which he produced in evidence. Moreover, Mr.
Harewood said that he had seen no other map or no other document which was
inconsistent with his findings other than the architects drawing made in the
year 1939 to which I have already referred. Under cross examination, it was
suggested to Mr. Harewood that the dimensions on the enlargement maps annexed
to some of the documents of title did not appear to be reflected when similar
measurements were taken from the extract from the ordinance survey map which
was also annexed to those documents and, while Mr. Harewood agreed that that is
so, he said that the variation was due to the fact that it was extremely
difficult to obtain precise measurements from a tracing of an ordinance survey
map but that it did not impugn the accuracy of the measurements on the
enlargement map. This was a view with which Mr. Curley was in total agreement.
8. In
the light of the evidence of Mr. Harewood and, in particular, his conclusion
that the boundary between the properties respectively coloured blue and yellow
on the map annexed to the said agreement of the 13th October, 1994 is that
denoted by the line A/B outlined in red on the map prepared and introduced into
evidence by Mr. Harewood and given that that conclusion was fully endorsed by
Messrs. Curley and Roche, I have no doubt at all but that that is the true
boundary between those two properties. Moreover, in the light of the evidence
of Mr. Curley and, indeed, that which was given by the Defendant herself, I
have no doubt but that the failure to reach agreement with regard to the
location of the said boundary as envisaged by Clause 4(c) of the said agreement
of the 13th October, 1994 was the Defendant’s refusal to accept any
boundary other than that indicated in the architects drawing of 1939. In that
regard, while it would appear that that architect’s drawing was prepared
in the year 1939, it seems that the construction works therein provided for
were never actually carried out; at least, not in their entirety, although I
understood from the evidence of the Defendant that she was responsible for
having some of the works indicated on that drawing carried out. That is at it
may be, it was clear from the Defendant’s evidence that, insofar as she
was concerned, the importance of that drawing is that, on the back of it, there
are two manuscript notes each signed by a Margaret Griffin who the Defendant
maintains was her mother. In that regard, in the course of the evidence which
he gave on commission, the Plaintiff was asked whether or not the handwriting
on the back of the said architect’s drawing and the three signatures
thereon which purported to be that of Margaret Griffin where, in fact, the
handwriting and the signatures of his mother but, as I interpreted his
evidence, he was not sufficiently familiar with his mother’s handwriting
to enable him to identify it. In those circumstances, given that Mrs. Madden
was emphatic that the handwriting and the signatures on the back of that
architect’s drawing were, in fact, that of her mother and that she also
produced samples of what she said was her mother’s handwriting which, in
my view, were a carbon copy of the handwriting on the back of the said
architect’s drawing, I have no doubt at all but that the handwriting and
the signatures on the back of the said drawing was that of the late Margaret
Griffin, mother of the Plaintiff and of the Defendant. In that regard, it is
clear from what was written by the late Margaret Griffin on the back of the
said architect’s drawing that she thereby purported to grant to the
Defendant the property described on the front of the drawing. Moreover, the
Defendant left me in no doubt but that she considered that that
architect’s drawing, together with her mother’s handwriting and her
mother’s signatures on the back of it, amounted to a document of title
which recognised her entitlement to the boundary for which she contended and it
was in the light of that belief that she was not prepared, by her engineer, or
otherwise, to accept a boundary at any other location, thereby frustrating
implementation of the said agreement of the 13th October, 1994.
9. I
can understand why, being a person without any legal training, Mrs. Madden
could easily be persuaded that the said architects drawing, together with the
text signed by her mother which was on the back of it, constituted a legal
document whereby her title to the property comprised in that drawing was
confirmed and I sympathise with her on that account. The reality, however, is
that it is not a document of title and it confers no rights; good, bad or
indifferent on Mrs. Madden and, therefore, the contents of the architects
drawing cannot be taken into account when trying to determine the boundary
between the properties coloured blue and yellow on the map annexed to the said
agreement of the 13th October, 1994 because, of course, that agreement
specifically provides that the location of the boundary is to be determined by
reference to the title documents of the parties thereto. In any event, I think
that the Mr. Emerson, who prepared that architects drawing, got it wrong
insofar as the drawing purports to indicate the location of the disputed
boundary because, as I have already indicated, I am persuaded by the evidence
of Mr. Harewood, supported by that of Messrs. Curley and Roche, that that
boundary is located along the line A/B which is designated in red on Mr.
Harewood’s map.
10. Arising
from the foregoing and given that I am satisfied that it was because of Mrs.
Madden’s insistence that she would accept no other boundary than that
reflected in the architects drawing of 1939 which was largely, if not totally,
responsible for frustrating the implementation of the said agreement of the
13th October, 1994, I think that the Plaintiff’s claim herein is well
founded. In this regard, and in the light of the evidence on commission which
he, himself, gave, I am persuaded that the Plaintiff has always been prepared
to implement the terms of the said agreement for his part and, indeed, rightly
or wrongly, I have the impression that he would have been prepared to
compromise on the location of the disputed boundary had there been any
indication from the Defendant that she would be prepared to accept a boundary
other than that indicated in the architects drawing of 1939. In this regard,
however, the Defendant appears to have been totally intransigent and, hence,
the necessity for these proceedings. However, allowing that I heard evidence
in the course of the hearing which satisfied me that the area of the disputed
property was only about 41 sq. feet, it seems to me that, even accepting that,
as Mrs. Madden assured me, property values in Galway city are very high, it
makes little sense for a brother and a sister to go to the trouble and expense
of a hearing in the High Court to resolve the question of ownership for such a
relatively small piece of property. That as it may be, however, I am satisfied
that, having regard to the Defendant’s intransigence, the Plaintiff was
left with no alternative but to institute these proceedings and, as I have
already indicated, I am satisfied that his claim herein is well founded and,
accordingly, that he is entitled to an Order for specific performance of the
said agreement of the 13th day of October, 1994 and I so order. However, in
the light of the evidence which I heard, notwithstanding the provisions of
clause 4(c) of the said agreement, it has been established to my satisfaction
that the boundary between the properties respectively coloured blue and yellow
on the map annexed to the said agreement is that denoted by the red line
designated A/B on a map (drawing No. 991/01) dated the 17th of December, 1998
prepared by Mr. Frank Harewood B.E., and I so declare. Furthermore, I am
satisfied that the Defendant was not entitled to erect, or to cause to be
erected the 225 mm block wall, 1.6 meters high and 3.08 meters long which is
presently located in the yard at the rear of the Plaintiff’s premises at
No. 24 Middle Street, Galway, having been erected therein by or at the behest
of the Defendants’ and I declare that the Plaintiff is entitled to
demolish and remove the said block wall at the Defendants’ expense.
11. While
the Plaintiff is claiming damages for the loss , damage and expense which he
maintains that he has suffered and incurred as a result of the
Defendants’ wrongdoing, I have been requested to defer consideration of
that aspect of the Plaintiff’s claim and the assessment of any damages to
which he may be entitled to a later date and I am satisfied to grant that
request. In that regard, however, in the course of the evidence which she gave
before me, the Defendant maintained that she was entitled to an income out of
the Plaintiff’s bakery at Shop Street, Galway, but that, despite the fact
that she had made requests in that behalf to the Plaintiff, she had received
nothing. She also complained that she had been subjected to regular harassment
by the Plaintiff and by his son, James A. Griffin. Apart from the
Defendant’s say so, I heard no evidence to justify either of those claims
and, therefore, I am in no position to adjudicate upon them. However, if there
is any reality to either of those claims; reality to the extent that the
Defendant may be entitled to peruse claims through the court in respect of
them, I would respectfully suggest that it is probably in the better interests
of all concerned that the Plaintiff and the Defendant should resolve all of
their differences (the amount of the Plaintiff’s claim for damages in
these proceedings and the value of any claims which the Defendant feels that
she may have against the Plaintiff and his son, James A. Griffin,) without
further recourse to the court.