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THE HIGH COURT
[2025] IEHC 126
[Record No. 2023/1988P]
BETWEEN
PHOENIX ROCK ENTERPRISES
T/A FRANK PRATT & SONS
PLAINTIFF
AND
GEORGE R. HUGHES
DEFENDANT
JUDGMENT of Mr Justice Liam Kennedy delivered on 26 March 2025
Background
1. The plaintiff, a multi-million euro sand and gravel company with 45 employees ("the Plaintiff"), seeks specific performance of an alleged oral agreement by the defendant, a 76 year old farmer ("the Defendant"), to sell a property to the Plaintiff and to hold the Defendant to his alleged earlier, related, commitment to negotiate exclusively with the Plaintiff in relation to its disposal. The Defendant denies that any such agreement was concluded and also denies the alleged commitment. This judgment concerns his application to strike out the proceedings.
Conclusion
2. My previous judgment and that of the Court of Appeal on the Plaintiff's interlocutory injunction application identified challenges facing the claim. The Plaintiff has availed of the opportunity to advance amendments but such changes fail to cure its infirmities. For the reasons detailed below, I have concluded that I should strike out the proceedings pursuant to Order 19 rule 28, I do not need to invoke the Court's inherent jurisdiction. In short:
a. The pleadings do not establish an arguable basis that the parties concluded an agreement for the sale of the land. There was no agreement as to the period for securing planning permission (or the arrangements for the payment of a deposit).
b. Even if there had been such an agreement, it was not evidenced in writing as required by s.51 of the Land and Conveyancing Law Act 2009 ("the 2009 Act").
c. There is no basis to invoke the doctrine of part performance or to seek specific performance because
i. There is no concluded agreement.
ii. Even if there had been a concluded agreement, the Plaintiff
1. is not entitled to rely on alleged detriment predating the alleged contract;
2. it has failed to advance sufficient particulars or credible evidence to support its mere assertion that a planning consultant was retained and "some expense" incurred following its acceptance of the "offer";
3. Even if the Plaintiff had incurred an "economic cost" retaining a planning consultant during the brief contractual window, this would still not be a "substantial act of part performance" sufficient to justify depriving the Plaintiff of his entitlements under the s.51 because: (a) the Defendant did not induce the Plaintiff to retain the consultant or to incur such expenditure (and the controversial claims as to the Defendant allegedly inducing other detriment at other periods and in the context of other proposals are irrelevant in this regard), (b) the expenditure during the brief contractual window, if any, must have been insignificant or de minimis in the context of the proposed transaction, (c) it would not be unconscionable to permit the Defendant to avail of the statutory protection afforded to him by modern legislation which dates back to the Statute of Frauds.
d. Even if the factual narrative as to exclusivity and forbearance was as alleged by the Plaintiff, it would not give rise to a binding legal commitment. No such commitment it would be open-ended - it would be terminable on reasonable notice which would, in my view be 1 to 3 months' notice, more likely the former, if, indeed, any notice at all was required, which I doubt.
e. In any event, claims cannot be advanced against non-parties, on the basis of agency, estoppel or otherwise. Nor can reliefs be claimed against them. The Plaintiff's allegations as to representations concerning the Defendant's ownership of the property or as to his willingness and ability to sell to the Plaintiff cannot constitute a proprietary claim against the Property. Such allegations could only be pursued by way of a damages claim against the Defendant, rendering unstatable most reliefs sought in the Indorsement of Claim.
f. Even if the Defendant misrepresented the position on various issues as alleged on the basis of the amended pleadings and the Plaintiff's affidavits, the Plaintiff has not suffered any legally cognisable loss as a result of any such misrepresentation.
Accordingly, I am satisfied that the (amended) pleadings disclose no reasonable cause of action and that the (amended) claim amounts to an abuse of the process of the Court, is bound to fail, has no reasonable chance of succeeding, and is frivolous and/ or vexatious.
The interlocutory injunction application
3. On 29 April 2024 I rejected the Plaintiff's application for interlocutory orders preventing the property's sale pending trial. Costello P delivered the Court of Appeal's judgment, agreeing that the Plaintiff had not established an arguable case. The Plaintiff then sought to amend and the Defendant sought the dismissal of the Claim in whole or part or its remission to the Circuit or District Court. The Defendant no longer opposes the proposed amendments so this judgment focuses on the dismissal motion and largely proceeds on foot of the (draft) amended pleadings and the affidavits exchanged in the proceedings in respect of both motions and on earlier motions, including the applications for injunctive relief, admission to the Commercial List and discovery. (Rule 28 (3) specifically empowers the Court to have regard to affidavits exchanged in respect of the particular application but I consider that the Court may also have regard to evidence previously tendered).
4. The Notice of Motion seeks:
"1. An Order pursuant to Order 19 rule 28(1) ... and/ or the inherent jurisdiction of the Court striking out the Plaintiff's claim (and all or any parts thereof) on the grounds that it:
i. discloses no reasonable cause of action, and/ or
ii. amounts to an abuse of the process of the Court, and/ or
iii. is bound to fail, and/ or
iv. has no reasonable chance of succeeding, and/ or
v. is frivolous and/ or vexatious.
2. An order pursuant to Order 19 rule 28(2) ... dismissing the Plaintiff's action herein or such parts thereof as have been struck out as aforesaid.
3. If necessary and appropriate, an Order pursuant to the provisions, inter alia, of Order 49; rule 7 ... remitting the above proceedings (or such portion thereof that has not otherwise been dismissed or struck out ...) to either (a) the Circuit Court ...; or (b) District Court".
5. Although it also relies on other grounds, including the breach of an alleged exclusivity commitment, the Plaintiff's primary claim depends on its contention that the Defendant offered to sell the property in a 11 April 2023 telephone call and the Plaintiff accepted that offer (by letter from its solicitor dated 20 April 2023, received 25 April 2023). It seeks to amend its Claim to assert that there is a note or memorandum which meets the requirements of s.51 of the 2009 Act, but in any event claims to be entitled to invoke the doctrine of part performance to enforce the "agreement".
The Contract
6. Throughout these proceedings, the Plaintiff has confused and conflated events and communications from different periods and it also confuses and conflates points relied upon in respect of the alleged exclusivity commitment with those which are pertinent to its contractual claim. However, in terms of the assertion that a contract was actually concluded, the Plaintiff has consistently alleged that, in the course of the 11 April 2023 telephone call, the defendant offered to sell the property for €1.2 million subject to planning permission and that the Plaintiff accepted the offer in a letter from its solicitors to the Defendant which was dated 20 April 2023 and was received by the Defendant on 24 April 2023. The Plaintiff has consistently described the "agreement" in these terms in its various pleadings, replies to notices for particulars and in affidavits sworn on its behalf throughout the proceedings [1]. For example, paras. 5, 18 and 19 of the Original Statement of Claim set out the Plaintiff's case on this key issue, alleging:
"5....an agreement entered into between the Plaintiff and the Defendant for the Plaintiff to purchase the property for €1,200,000.00, which followed an offer from the Defendant to the Plaintiff on 11th April 2023 to purchase the property for €1.2million subject to planning permission. The offer was accepted on 20th April 2023 and resiled on by the Defendant on 25th April 2023 who stated to Ivan Pratt that he was instead putting the property to tender...
18. ... by telephone call on or about 11th April 2023 the Defendant called Ivan Pratt and offered to sell the property for €1,200,000.00 subject to planning permission.
19. By letter dated 20 April 2023 the solicitors for the Plaintiff accepted the Defendant's aforementioned offer of 11 April 2023. The letter states:-
'Our clients wishes to accept your recent offer of 11 April 2023 whereby our client will pay €1.2 million to you for the freehold estate in the lands subject to planning permission and good clear marketable title.
Our clients have accordingly arranged a planning consultant to apply for the requisite planning permission and our clients has funds in place and is ready, willing and able to complete the said purchase via this office...'"
The Plaintiff's managing director's 4 May 2023 affidavit grounding the injunction application was in the same terms [2].
7. There are additional nuances concerning the alleged contract. Firstly, I consider (and reject) below an argument advanced in the amended Statement of Claim that, although concluded in 2023, the "agreement" was evidenced in writing by inconclusive intersolicitor correspondence six years earlier. Secondly, the Plaintiff relies on negotiations over the years to argue that it would be unconscionable for the Defendant to resile either from the alleged April 2023 agreement or from the alleged exclusivity commitment. In particular, it relies on alleged forbearance and expenditure by the Plaintiff over the years in the expectation of ultimately securing a deal. However, both previous judgements concluded that the Plaintiff could not rely on events predating the "agreement" as acts of part performance.
8. It follows that the only acts of part performance upon which the Plaintiff can rely are those which occurred in the narrow window between the "acceptance" of the "offer" and its "repudiation" on 25 April 2023. That contractual window is confined either to 24/25 April 2023 or to Thursday 20 - Tuesday 25 April 2023, depending on whether the contract was concluded when the acceptance letter was sent by registered post on the Thursday [3] or when it was received on the following Monday. Accordingly, it is important to determine when the "agreement" was concluded.
When did the April 2023 "agreement" come into existence?
9. Before considering when a contract based on the registered letter would come into existence, it is necessary to examine the peculiar way in which the Plaintiff "accepted" the "offer" which it said that the Defendant made in a telephone call with its managing director. A quick telephone call to the Defendant to impart the glad tidings that it was accepting his offer would have been in keeping with the way the discussions had been proceeding but the Plaintiff chose a less obvious course. It consulted with its solicitor and instructed the latter to send a letter to the defendant - by registered post - informing him of the acceptance of the offer. Remarkably, the Plaintiff's solicitor's letter to the elderly farmer was not copied to the recipient's solicitor.
10. Paragraphs 68 -73 of my previous judgment observed:
"68. The plausibility of the Plaintiff's position is not enhanced by the curious way the arrangements were supposedly concluded. If the principals were engaging in direct one-on-one discussions with a view to reaching a legally binding agreement, then it is remarkable, to say the least, that the Plaintiff failed to complete the contract by accepting the offer in the same way it says that the offer had been communicated, by a telephone call. In the context of such oral negotiations, the natural thing to do would have been for the Plaintiff's Managing Director to have telephoned the Defendant to confirm the good news that the Plaintiff was accepting the Defendant's terms and they had a deal. The Plaintiff's evidence would be more compelling if it had made such a telephone call, thus evidencing a mutual understanding that all that was left was for the solicitors to document the agreed arrangements. In the course of such a call, the Plaintiff could have confirmed that its solicitor would be writing to the Defendant's solicitor (or to the Defendant directly if he was unrepresented, but clearly it would have been necessary for both parties to retain solicitors to complete the transaction).
69. If, for any reason, it was not possible for the Plaintiff to visit or telephone the Defendant with the message along these lines, then I would have expected to see an email or text message to the Defendant to similar effect. Such an approach would seem the natural way to accept if the Plaintiff genuinely believed that the parties were on the same page.
70. Of course, if the parties were not in fact agreed, then any such "acceptance" telephone call, email or text would have been likely to prompt an immediate rebuff from the Defendant, confirming that there was no deal. Sending the Registered Letter, rather than taking the simpler, faster and more natural expedient of calling the Defendant, could thus be seen as an artificial attempt to create a paper trail suggesting a binding agreement and avoiding the risk that a telephone call would have immediately exposed the lack of consensus.
71. The Plaintiff has not satisfactorily explained why it did not immediately telephone the Defendant to confirm acceptance of the latter's telephone offer. Nor did it instruct its solicitor to contact the Defendant's solicitor (by letter, telephone call, email or otherwise) to confirm the deal. It submitted that the Defendant had not emphasised this issue in his replying affidavits and endeavoured to explain its approach in submissions. This was unsatisfactory, not only because the submissions went beyond what can be tolerated in terms of evidence from the bar, but also because the proffered explanations were unsatisfactory in any event.
72. The despatch of the Registered Letter by the Plaintiff's solicitor to the Defendant directly (rather than via his solicitors in accordance with normal professional practice) was explained on the basis that it was believed that the Defendant may have been contemplating a change of solicitors. However, there was no affidavit evidence to that effect. Even if that had been the case, the Plaintiff's solicitor should have emphasised the need for the Defendant to obtain his own legal advice and in the absence of legal representation and, in view of the context, it would have been prudent to check that the Defendant actually did intend to make an offer capable of acceptance.
73. Indeed, even if such evidence was admissible, the suggestion that the Plaintiff thought that the Defendant might no longer be represented by his previous solicitor would have two consequences.
Firstly, it would be important for the Plaintiff and its lawyers not to take advantage of an unrepresented Defendant in a major property transaction, particularly when there were the interests of other beneficiaries to consider. Secondly, it would make it even more implausible that the Defendant would have intended to enter into an unconditional agreement without professional advice (particularly in the light of past dealings)."
The four affidavits sworn on the Plaintiffs behalf in support of the amendments and in opposition to the strikeout application do not engage with the points noted in that passage.
11. In any event, Costello P evidently considered that the date of receipt determined when the "agreement" was concluded. However, the plaintiff now submits that, under the "postal rule", a contract is concluded when the acceptance letter is sent rather than when it is received. This would mean that the "agreement" was concluded on Thursday 20 April, even though the Defendant only received the letter four days later, after the weekend (slightly extending the contractual window during which acts of part performance might have occurred).
12. I do not agree that acceptance would have occurred when the letter was posted in this instance. The postal rule is a limited exception to the well-established and highly sensible principle that an agreement is only concluded when acceptance is communicated to the offeror. The principle is helpfully discussed by McDermott & McDermott on Contract Law (2nd ed., 2017) ("McDermott") at paras. [2.120] to [2.1331] which confirm that the postal rule exception only applies if it is established that the parties intended any agreement to be concluded in that way. Paragraph [2.122] cites an Australian judgement, Nunin v Tullamaraine [1994] 1 VR 74 at 80, in which Hedigan J stated:
"it is fundamental to bear steadily in mind that the general rule is that the contract is not completed until acceptance of the offer is actually communicated to the offeror, and the finding that the contract is completed by the posting of a letter of acceptance cannot be justified unless it is to be inferred that the offerer contemplated and intended that his offer might be accepted by the doing of that act."
13. The facts of this case are very different to those of the cases in which the postal rule exception was applied. In those cases, the parties typically conducted negotiations by post, requesting catalogues and enquiring about stock and prices. Such postal correspondence (in an era before email or texts) clearly envisaged that any orders would be placed and contracts formed in the same manner. However, the present case is different in terms of how the parties dealt with each other. There is no evidence before the court to support an objective inference that, having conducted the discussions directly, the parties would have envisaged that an "offer" during one-on-one telephone discussions would be accepted by registered letter. That was not the way the principals had dealt with each other, nor would it be in keeping with normal practice nowadays when principals are engaged in direct oral discussions, nor is it likely that the parties would have agreed to such a procedure, particularly since the Defendant was represented by his own solicitors, rendering it unnecessary, inappropriate and unprofessional for the Plaintiff's solicitor to write directly to the Defendant in that way.
14. The 2017 correspondence does not provide a basis for an inference that a registered letter would have been the intended mode of acceptance six years later:
· Firstly, that correspondence was between solicitors. It was never the practice for one side's solicitor to write directly to the other's client nor would that have been in keeping with normal commercial or appropriate professional practice, nor would such correspondence have been permitted by the other firm.
· Secondly, the previous solicitors' correspondence on either side stipulated, in keeping with normal practice, that such correspondence would not give rise to a binding contract and a contract would only be made when signed contracts were exchanged and a deposit was paid.
15. There is a considerable volume of affidavit and documentary evidence before me as to the way the principal-to-principal discussions were conducted. There were meetings, telephone calls and text messages. However, the 20 April 2023 letter is the only example of a registered letter being sent to either party prior to the institution of these proceedings. Accordingly, there is no objective basis on which I could infer that the parties would have envisaged that the 11 April 2023 "offer" would be accepted in such a manner (or that the posting of a registered letter on a Thursday would lead to the instantaneous formation of a binding agreement even before its receipt days later). Accordingly, although I doubt that the issue will be pivotal in the litigation as a whole, I conclude that, even if all of the other factual and legal issues in these proceedings were decided in the Plaintiff's favour, the letter of acceptance could only be effective on receipt on 24 April 2023. Any acts of part performance must have occurred during a window of less than 48 hours on 24/25 April 2023.
Factual Disputes
The most significant factual controversy concerns what was said during the 11 April 2023 call and the discussions surrounding it but there are also disputes as to other points including the detail of prior dealings and whether: (i) all negotiations (including the 11 April call in particular) were "subject to contract"; (ii) the Defendant told the Plaintiff that he was the sole owner of the lands; (iii) the Defendant gave some form of commitment not to not deal with other parties; and (iv) the number of meetings and interactions between the parties. The Defendant conceded, rightly in my view, that such issues can only be resolved at trial. However, such points do not require determination here. For present purposes, I accept the Plaintiff's factual allegations at their height as to the parties' prior dealings, the discussions about dealing only with each other and as to what was said in the 11 April 2023 telephone call (although not necessarily the legal characterisation of the consequences of such interactions).
The Claim
16. Costello P summarised the parameters of the dispute:
"1...The appellant says it entered into an oral agreement with the respondent to purchase the land in April 2023, and, while there exists no note or memorandum which would satisfy the requirements of s.51 of the Land and Conveyancing Law Reform Act 2009, it has an arguable case that by reason of acts of part performance, at trial, it would obtain an order for specific performance of the agreement to sell the land. It submits that the respondent has acted unconscionably in his dealings with the appellant, such that it would be entitled to equitable relief...
Background
2. The facts may be briefly summarised. The land comprised in Folio MH7440 comprises approximately 27 acres and largely comprises farmland and a farmhouse (though part of it was licensed to a third party as a quarry). Sand and gravel are present on the land. The folio shows that James Hughes of Clondoogan, Summerhill, County Meath is the full owner. He died on 26 June 1996, and by his last Will and Testament, he bequeathed the lands to his neighbours, the respondent, the respondent's wife, and their four children in equal shares. While a grant of Probate was extracted on 6 October 2000, the land was not transferred into the names of the six members of the Hughes family until 5 May 2023. The appellant says that prior to receipt of the respondent's replying affidavit, sworn in these proceedings on 7 June 2023, it was unaware of the fact that the lands were beneficially owned by the six members of the Hughes family. It believed, and it says it was wrongly led to believe, that the respondent was the sole owner of the lands.
3. The appellant describes itself as being engaged in the sand and gravel business and was interested in exploiting the sand and gravel on the lands. It negotiated with the respondent between 2015 and 2017 to acquire an interest, either of part of the lands or all of the lands and whether by lease, and latterly, by purchase. Throughout the negotiations, both parties were represented by solicitors. The correspondence between the solicitors emanating from both sides expressly stated that no contract should be deemed to come into existence until such time as contracts had been signed by both parties, a deposit paid, and the contracts duly exchanged...It is accepted by both parties that the correspondence covered the exchanges and actions of the parties until the appellant's solicitor's last letter of 21 September 2017, when they wrote, stating that there were no further developments in the matter. That letter was headed 'Subject to Contract/Contract Denied' ...
4. While there is some dispute as to the degree of contact between the parties thereafter, it is not necessary to explore this in detail. Senior counsel for the appellant accepted that his client's case is that a contract was concluded in April 2023, which the respondent then purported to resile from, so that what went before was of little relevance and could not be relied upon by his client.
The Asserted Contract
5. The appellant asserts that during a telephone call on 11 April 2023 with the appellant's Mr. Ivan Pratt, the respondent offered to sell the land to the appellant "for the sum of €1.2 million subject to planning permission". In Mr. Pratt's second affidavit, sworn on 6 July 2023, Mr. Pratt addressed what was meant by the phrase "subject to planning permission". He averred: "I say that the [respondent] is aware the 11th April 2023 agreement by the [respondent] to sell the lands to the [appellant] was subject to planning permission and the [respondent] knows what that involves and the [respondent] is aware the [appellant] knows what planning permission involves as we previously discussed it."
6. Mr. Pratt is inconsistent in his evidence as to whether the contract was entered into on 11 April 2023, or whether there was a "binding offer", or simply an offer, made on 11 April 2023, which the appellant subsequently accepted by a letter written on its behalf by its solicitors on 20 April 2023. The letter was addressed to the respondent (not his solicitor) and was sent by registered post. It is appropriate to quote the letter in full:
"Re: Our Client: Ivan Pratt property at MH7440, Clondoogan Summerhill Vo [sic] Meath Dear Mr Hughes, We are instructed by our above-named client in respect of the purchase by our client of the lands at Clondoogan, Summerhill, Co Meath from you. Our clients wishes to accept your recent offer of 11 April 2023, whereby our client will pay €1.2 million to you for the freehold estate in the lands subject to planning permission and good clear marketable title. Our clients have accordingly arranged a planning consultant to apply for the requisite planning permission and our client has funds in place and is ready, willing and able to complete the said purchase via this office. - 5 - We look forward to receiving the relevant contract documentation within 10 days of the date of this letter." I shall return to the details of the letter later in this judgment.
7. It is accepted that the letter was received by the respondent on 24 April 2023.
On 25 April 2023, Mr. Pratt and the respondent spoke on the telephone. The respondent said (on his case, reiterated, but for the purposes of this judgment, I will set out the appellant's case at its height) that he was going to sell the lands by tender, and thereafter, denied that he had agreed to sell the lands to the appellant on the terms set out in the letter of 20 April 2023. The dispute between the parties quickly escalated".
The claim as originally pleaded
17. Costello P summarised the Plaintiff's original case by reference to the indorsement of claim (which, remarkably, the Plaintiff does not seek to amend [4]):
"8. ...The General Indorsement of Claim claims: "1. A Declaration that the [respondent] is estopped from denying the [appellant] has a beneficial interest in the property situate at Clondoogan, Summerhill, Co. Meath, as described in Folio MH7440. 2. An Injunction prohibiting the [respondent] from entering into a tender process to sell or market the property described in paragraph 1 herein. 3. A Declaration that the [respondent] is estopped form (sic) negotiating the sale of the property described in paragraph 1) herein, whether directly or indirectly, with any company, person or entity other than the [appellant]. 4. An Injunction to restrain the [respondent] from selling or marketing the property described in paragraph 1 herein to any other company, person or entity other than the [appellant]. 5. 6. 7. All necessary accounts and enquiries. Damages for loss of opportunity. Damages for loss of bargain. 8. - 6 - Damages for breach of contract. 9. Further and if necessary, an Order granting the [appellant] specific performance of the contract between the [appellant] and the [respondent] to sell the property described in paragraph 1 herein to the [appellant]." ...
On 3 July 2023, the appellant delivered a Statement of Claim. The plea in relation to the asserted contract is as follows:
"18. Subsequently, by telephone call, on or about 11th April 2023 the [respondent] called Ivan Pratt and offered to sell the property for €1,200,000.00 subject to planning permission.
19. By letter dated 20 April 2023 the solicitors for the [appellant] accepted the [respondent]'s aforementioned offer of 11 April 2023. ...
20. By way of telephone call, on or about 25th April 2023 the [respondent] called Ivan Pratt and told him that he had changed his mind. The [respondent] stated that rather than sell the property to the [appellant] directly and honour the contract for sale on the property he had made with the [appellant] on 11 April 2023 and which said offer was accepted by the [appellant] on 20 April 2023, the [respondent] instead said that he was going to put the property up for tender." The reliefs sought in the Statement of Claim did not quite reproduce those in the Plenary Summons. The primary relief now sought was specific performance of an alleged exclusive dealing agreement and specific performance of the contract for the sale of the lands in April 2023."
Failure to show that there was an arguable claim in the interlocutory application
18. The Court of Appeal summarised why the Plaintiff had not shown an arguable case:
"27. ... the appellant has not established an arguable case that a concluded contract for the sale of lands was entered into in April 2023. Five of the six co-owners are not party to the alleged agreement, nor are they party to the proceedings, and they do not benefit from the appellant's undertaking as to damages. The alleged contract is incomplete, in that an essential term, and one which was recognised by the parties to be essential i.e. the obtaining of planning permission, is uncertain because no time limit for the obtaining of planning permission was agreed. There is no note or memorandum which satisfies the requirements of s.51 of the Act of 2009. The appellant's attempt to rely on the doctrine of part performance does not amount to an arguable case, as there is no evidence of any act of part performance after the conclusion of the alleged contract, and the letter written by the appellant's solicitors purporting to accept the offer for the sale of the land makes clear that the act relied upon occurred before the contract arose".
Key Court of Appeal Findings
19. Although the application to amend was issued before the Court of Appeal judgment, the Plaintiff could have sought to further modify the draft amendments but did not do so. The findings that most directly bear upon the dismissal motion were that; (a) there is no note or memorandum which met the s.51 requirements; (b) the absence of agreement as to the period for planning permission, a material term, meant there was no concluded agreement and no basis for part or specific performance; (c) in any event, the Plaintiff was not entitled to the reliefs sought because the Defendant was only one of six co-owners and the others were not parties. Costello P concluded that:
"23. Any one of these reasons leads to the conclusion that the appellant has no arguable case or fair question to be tried that it has an enforceable contract for the sale of land, and therefore, a property right in the land, which should be protected by an injunction pending trial."
The explanation for the proposed amendments to the Statement of Claim
20. The Plaintiff's solicitor's 20 May 2024 affidavit grounding the amendment application summarised key proposed amendments to the reliefs sought:
a. "A declaration that the expense of hiring a Planning consultant pursuant to the April 2023 contract constitutes consideration of economic value;
b. A declaration that the Plaintiff retained at an economic cost a Planning Consultant pursuant to the April 2023 contract upon the reliance of a clear and unambiguous representation made by the Defendant to the Plaintiff;
c. A declaration that Proprietary Estoppel arises in favour of the Plaintiff on account of clear and unambiguous representations made from the Defendant that any sale of the Property would be exclusively to the Plaintiff;
d. A declaration that the written document issued inter alia 20 April 2023 to the Defendant constitutes a Memorandum of a Contract for Purchase of the sale of the Property for the purposes of the Statute of Frauds Act 1965 and/or Land and Conveyancing Law Reform Act 2009 (As amended)."
Points assumed (solely for this application) in the Plaintiff's Favour
21. I take the Plaintiff's factual contentions at their height on the basis of the amended pleadings and the affidavits. I assume, without deciding, that the Plaintiff is correct in its contentions that:
a. there were extensive discussions between the parties over the years, particularly between 2014 and 2017, about the possibility of the Defendant selling or leasing the property to the Plaintiff ("the Previous Discussions");
b. in 2017 the parties failed to reach agreement, but new negotiations began from 2018 between the parties directly, without solicitor involvement. During these direct negotiations the parties discussed exclusivity. The Defendant led the Plaintiff to believe that he would not deal with any other party in respect of the property, and that he was the sole owner, and he repeatedly sought the Plaintiff's "forbearance" over the years, for personal and commercial reasons. As a result, the Plaintiff incurred expense and forwent alternative opportunities in the expectation of an eventual deal;
c. no agreement was concluded in the course of the Previous Discussions, but the parties remained in occasional and exclusive contact thereafter and active (and exclusive) engagement resumed in late 2022 and early 2023;
d. In the course of his 11 April 2009 telephone call with the managing director of the Plaintiff, the Defendant offered to sell the property the Plaintiff for €1.2 million, conditional on planning permission. The Plaintiff's solicitor's letter to the Defendant dated 20 April 2023, received on 24 April 2023, confirmed the Plaintiff's "acceptance" of the 11 April "offer" but on 25 April 2023 the Defendant told the Plaintiff that he would not proceed on that basis and that the land would be sold by tender.
Many other points canvassed at length in the affidavits, such as the numbers and substance of discussions at particular points, are disputed but are not material to this application.
The Plaintiff's Admissions
22. The Plaintiff accepts that it is bound by its Senior Counsel's admissions in the injunction proceedings (and noted by Costello P) but submitted that those admissions reflected the then pleadings and some may have been superseded by the amendments. I will assume, without deciding, that the Plaintiff is entitled in appropriate circumstances to propose amendments (providing they are factually based) which would counter admissions and concessions tendered in the interlocutory pleadings on the basis of the original pleadings.
23. The admissions in the Court of Appeal included the following:
a. "A contract was concluded in April 2023, which the respondent then purported to resile from, so that what went before was of little relevance and could not be relied upon by (the Plaintiff's) client". (Costello P, para. 4)
b. "A time limit in which planning permission must be obtained is essential: otherwise, the agreement is entirely open-ended". (Costello P, para. 16)
c. "There is no note or memorandum sufficient to satisfy the provisions of s.51 of the Act of 2009". (Costello P, para. 17)
d. "The respondent is not the owner of the lands: he is one of six tenants in common". (Costello P, para. 13
e. "The sole act of part performance now relied upon by the appellant, was the engagement of an unidentified planning consultant. (Costello P, para. 20)
f. "The Defendant's family were 'innocent' parties in this saga, and implicitly, that the appellant had no case against them". (Costello P, para. 13)
The Issues on the Strike Out Application
24. Although the injunction judgments highlight issues which arise on this application, those issues must be reassessed in the light of the amendments. The key issues are whether the Plaintiff can either show an agreement evidenced in writing for the purposes of s.51 or invoke the doctrine of part performance. In the latter scenario, it must show that the parties concluded an agreement which would have been effective but for the failure to comply with s.51. The key issues (for present purposes) are:
a. Whether the 11 April 2023 discussions were "subject to contract"?
b. Whether there is a note or memorandum which satisfies the s.51 requirements?
c. Whether the "agreement" is void for uncertainty, due to the failure to resolve essential terms (the period for planning permission and the deposit arrangements)?
d. Whether the Plaintiff's claim to have retained a planning consultant constitutes "part performance"?
e. The implications of the co-owners' interest in the property?
f. Whether the Defendant is bound to deal exclusively with the Plaintiff?
g. Is the claim bound to fail in its entirety?
There is an issue as to whether the 11 April 2023 telephone call must be seen in the light of 2017 correspondence between the parties' solicitors, and this impacts issues (a) to (c) above.
The Amendments
25. It is necessary to consider the extent to which the amendments address infirmities identified in the injunction judgments. The Plaintiff's solicitor's grounding affidavit noted at para 7 that the affidavit was intended to support the amendment application and to resist the anticipated strike-out motion and that the amendments related to the following issues:
"(i) Date of consideration alleged for the April 2023 Agreement going to enforceability;
(ii) Nature of consideration/part-performance the April 2023 Agreement after the date of the pleaded 20 April 2023 Date of Acceptance;
(iii) Extent to which ownership of the Lands was disclosed by existence of names of the children of the Defendant upon a proposed Defendant Lease and/or Sub-Lease;
(iv) Extent to which the Defendant is Owner and/or Agent for the Sale of the Lands with Authority to Bind an Implied and/or Secret and/or Disclosed Principal;
(v) Assertions by the Defendant in Interlocutory Injunction Proceedings regarding a tender for sale process being underway by the Defendant Solicitor in April 2023 without correspondence to that effect from the Defendant Solicitor in the relevant period;
(vi) And (partly) effect of "subject to contract" qualifiers upon predecessor Terms of Agreement and the effect of Secret Principal Doctrine on the within proceedings; ...
10. The Amendments made to the Plenary Summons and Statement of Claim are necessary to be made to avoid strike out of the within proceedings for lack of a stateable/arguable head of relief.
11. In particular, they are necessary to be made in order to engage inter alia:
Doctrine of Part Performance;
Doctrine of Consideration;
Doctrine of Misrepresentation by Silence and/or Omission per the Supreme Court in O'Donnell v. Truck & Machinery;
Proprietary Estoppel against reliance of the Defendants upon any alleged lack of authority of the Defendant to deal in the Lands;
and to seek necessary Declaration and Orders which flow from the said Pleadings".
Some of these points are matters of evidence or legal submission rather than pleading points.
The Amendment's reliance on "28 July 2019" Heads of Agreement
26. Before considering the individual issues, it is necessary to consider a letter from the Defendant's solicitors which the amendments relied upon and which is relevant to the "subject to contract", s.51, and "essential terms" issues. The amendments variously described the document on four occasions in the amended Statement of Claim as the "2019 Agreement" and the "28 July 2019 terms of agreement" and the "July 2019 Agreement (as amended and incorporated April 2023)".
27. These four references, out of the blue, to a 2019 agreement provoked (justified) protests from the Defendant in his replying affidavits and submissions. His consternation was understandable because the Plaintiff had never asserted such a 2019 agreement or terms of agreement in its voluminous and detailed affidavits, exhibits and submissions in the injunction proceedings. Prior to the delivery of the amended Statement of Claim, there had been few references in the proceedings to alleged contacts between the parties in 2019 and no suggestion of an agreement or heads of agreement at that time. Accordingly, it was surprising that the Plaintiff should invoke a hitherto unmentioned 2019 "agreement" so late in the day and with no explanation. The Defendant's solicitor 31 May 2024 affidavit stated:
"9. More troubling, however, is the proposed amendments which ostensibly seek to introduce a new, and previously unmentioned, alleged contract into the proceedings dated 28 July 2019 (see, for example, paragraphs 34 and 36 of the draft amended Statement of Claim, and amended paragraphs 1 and 3 of the amended Prayer for Relief to the draft amended Statement of Claim). This is quite extraordinary, not only because these references to a newly asserted contract from July 2019 are wholly inconsistent with the Plaintiff's claim as otherwise pleaded in the Statement of Claim and in the balance of the draft amended Statement of Claim (which appears to plead and rely upon an alleged oral contract from April 2013) but these amendments arc proposed in the face of proceedings where Mr Ivan Pratt on behalf of the Plaintiff and the Plaintiff's Solicitor himself have collectively delivered four affidavits which don't mention any July 2019 contract whatsoever but confidently aver repeatedly to the alleged April 2023 contract.
10. In those circumstances, once would expect detailed clarificatory affidavits from both Mr Ivan Pratt and from the Plaintiff's Solicitor as to precisely how they are now proposing to amend the Statement of Claim in a manner which wholly contradicts multiple affidavits which they have already sworn in the above proceedings to date. Instead, the Grounding Affidavit merely mentions this obliquely, at paragraph 7 (vi) which summarises the proposed amendments as including, inter alia, '[a]nd 'partly] effect of 'subject to contract' qualifiers upon predecessor Terms of Agreement and effect of Secret Principal Doctrine on the within proceedings'. Aside from the fact that it is not at all clear what this sentence is intended to mean, I believe that it is entirely unsatisfactory that this is the extent of the evidence which is adduced on behalf of the Plaintiff to explain a proposed amendment to introduce an entirely new alleged contract which (a) is inconsistent with the balance of the Plaintiff's pleaded case; and (b) is inconsistent with the Plaintiff's case as previously, repeatedly averred to by Mr Ivan Pratt and by the Plaintiff's Solicitor himself."
28. The Defendant's 24 May 2024 affidavit also noted at para. 42 that the amendments included:
"(internally inconsistent) references to an unknown 'July 2019 Agreement', which is totally at odds with the existing Statement of Claim, the balance of the draft Amended Statement of Claim, and everything which the Plaintiff has said on affidavit to date (and which was said on the Plaintiff's behalf by the Plaintiff's Solicitors in correspondence to date)."
29. The Defendant's written submissions reiterated the objection:
"the Plaintiff apparently seeks to introduce a brand new alleged contract (i.e., the "July 2019 Agreement"), without any specifics or explanation whatsoever. This is a bizarre issue for the Plaintiff to seek to introduce as: (i) the relevant amendment, if allowed, would result in the Plaintiff's prosecuting its case on an internally inconsistent amended Statement of Claim; (ii) no explanation or context is provided for this newly asserted contract; and (iii) most profoundly of all, both Mr Pratt and the Plaintiff's Solicitor have repeatedly sworn affidavits claiming that the alleged contract with the Defendant arose in April 2023. In the Amendment Motion, the Plaintiff's Solicitor makes no attempt to explain this new case, in particular how it is contradicted by prior averments his client and he himself made to the Court about the Plaintiff's claim. The Defendant has specifically taken issue with this in opposition to the Amendment Motion and in the affidavit grounding the Dismissal Motion and yet, in the replying affidavit to the Dismissal Motion (once again, sworn by the Plaintiff's Solicitor and not by Mr Pratt), the Plaintiff's Solicitor simply does not engage with the issue".
30. Affidavits sworn by the Plaintiff's solicitor and by its managing director and its written submissions ignored the Defendant's objections to the novel assertions. While preparing for the hearing, I reviewed all judgments, pleadings, submissions, affidavits and exhibits and vainly sought to identify the 2019 document which was repeatedly referenced in the amended Statement of Claim. My quest was fruitless as it was frustrating. The mystery was solved when, at the outset of the recent hearing, I sought clarification from the Plaintiff's counsel. At that point the Plaintiff confirmed that no 2019 agreement was alleged. There were no 28 July 2019 terms or heads of agreement. The four references in the draft amendments were wrong. The Plaintiff had meant to reference a 28 July 2017 letter from the Defendant's solicitor (which had been previously referenced in the proceedings, albeit not for the purposes for which it was now invoked).
31. It is unsatisfactory, to say the least, that a corporate litigant as sophisticated and well-resourced and represented as the Plaintiff should fail to ensure that such crucial details in its draft pleading were correct, particularly when seeking leave to amend proceedings and in the context of its efforts to persuade the court that the proceedings were not bound to fail. Apart from the Plaintiff's extraordinary error (which was repeated on so many occasions in the draft Statement of Claim), it is also disquieting that the solicitor's affidavit grounding the application failed to identify and rectify the issue at the outset. The Plaintiff's managing director's affidavit of verification was equally deficient.
32. It is incumbent upon a party to address such issues promptly to ensure that other parties and the Court are not misled. Unfortunately, and disturbingly, the Plaintiff failed to do so, despite the the issue being raised in the Defendant's solicitor's 31 May 2024 replying affidavit and in written submissions, each of which should have made it obvious to the Plaintiff and its legal advisors that the amendments were misleading. While the elementary error should have been avoided in the first place, I would also have expected the Plaintiff and its legal advisors to have identified and addressed the point once the Defendant's replying affidavit queried the reference to a 2019 agreement. They did not do so nor has any explanation been provided for these defaults. It is disturbing that the Plaintiff's solicitor and managing director each swore a second affidavit responding to the Defendant's affidavit (the managing director's affidavits were verifying the former's affidavits but the same principles and standards apply). In those further affidavits the solicitor and the managing director continued to ignore the flaw in the amended pleading. Neither corrected the misleading impression which they had created, compounding the serious oversight in the earlier affidavits which they had sworn in support of the misleading draft pleading. Such deficiencies scarcely enhance the Plaintiff's case. Its failure to address the issue (even when the Defendant queried the references) does not inspire confidence in the rigour with which its affidavits and pleadings have been prepared.
The "28 July 2017" Heads of Agreement
33. The Plaintiff's difficulties with its attempt to rely on the document persist even when the correct document is identified. The actual document, the Defendant's solicitor's "Subject to Contract/Contract Denied" 28 July 2017 letter, confirmed that:
"our client has now instructed us that the Terms of Agreement are as follows:-
1. Our client will sell (not lease) approximately 16 acres being the lands outlined in green on the attached map for a sale price of €600,000. Access to the lands will be by the way coloured yellow. The enclosed maps are for discussion purposes only and your client will be required to prepare and furnish suitable contract map.
2. The sale price is €600,000 and the deposit on signing to be paid in the sum of €60,000 (10%).
3. The sale is subject to planning permission issuing within an agreed period (we would propose 18 months) from the date of contract. If planning permission does not issue within the aforesaid period or such extension thereof as at their absolute discretion may be agreed by the parties, the contract shall be null and void.
4. ...
6. There will be a deferred closing date in relation to the area coloured blue and our client has obtained Accountant's advice with regard to deferred Capital Gains Tax. We will expand further on the mechanism for this plot and closing dates when we have been furnished with the accountancy advice. However, we understand that same will close at a later date on a phased basis.
7. Our client is retaining his dwelling house and yard...
8. The agreements and Deeds of Sale will contain an option by our client to purchase back the lands for a nominal value (€100 each) on completion of all quarrying works and reinstatement of the lands whenever same occurs.
We would be obliged if you could take instructions and revert to us as soon as possible. In particular, your client will need to prepare appropriate maps in relation to the acquisition including identifying each area.
Finally, please note that we do not act as agents on behalf of our client nor do we have any authority by this or subsequent correspondence to bind them in any way nor should this letter be used as a Note or Memorandum sufficient to satisfy the Statute of Frauds. Instead our client reserves the right to be bound only by their signature on a Contract for Sale, same having been signed by your client and our client, the contracts exchanged and the full deposit money paid".
34. Accordingly, key features of the 28 July 2017 letter include the following:
a. It was headed "Subject to Contract/Contract Denied";
b. The transaction then envisaged (which was never agreed) was fundamentally different to the April 2023 proposal. The 2017 proposal envisaged:
i. The sale of approximately 16 acres for €600,000 and a second transaction, involving the Defendant granting the Plaintiff an option to purchase approximately 11 acres, both subject to planning permission
ii. A 10% deposit (€60,000) was to be paid on signing.
iii. The Defendant would retain his dwelling house and yard.
iv. The Defendant would have an option to buy the lands (€100 each) on completion of quarrying works and their reinstatement.
d. Essential terms had not been agreed:
i. The amount of land to be transferred in each tranche was described on both occasions as "approximately" - the details were to be settled.
ii. the Plaintiff was to prepare and furnish a contract map (those enclosed were "for discussion purposes only").
iii. The period for planning permission was to be agreed - I have seen no evidence that the Plaintiff agreed to the Defendant's 2017 suggestion.
iv. Deferred closing provisions were to be agreed once the Defendant had obtained Capital Gains Tax advice and the corresponding mechanism was to be considered when that advice was forthcoming.
v. The Plaintiff's solicitors were to take instructions and their client was to prepare appropriate maps "identifying each area".
e. The letter's concluding paragraph confirmed the basis on which it was sent:
i. it could not be used to satisfy the requirements of s.51.
ii. The Defendant reserved the right:
"to be bound only by their signature on a Contract for Sale, same having been signed by your client and our client, the contracts exchanged and the full deposit money paid".
35. Accordingly, the 28 July 2017 letter was never an offer capable of acceptance, rendering untenable the amended Statement of Claim's attempts to argue that the 11 April 2011 should be interpreted in the light of that letter and that the 2017 letter constituted a note or memorandum for the purposes of s.51. Even leaving aside the foregoing issues, the amended pleading's reliance on the 28 July 2017 is untenable as it is selective, ignoring the context including that:
a. the Plaintiff's solicitors 4 August 2017 response had rejected those 28 July 2017 terms (while making clear that the Plaintiff would continue to negotiate). Presumably, unless it was a Freudian slip, the rejection letter should have used the term "contemporaneously" rather than "contemptuously" but in any event it rejected the letter of 28 July and advanced a counter offer. The counter offer proposed different terms and was not agreed.
b. The Plaintiff cannot rely on the letter as meeting the s.51 requirements since it rejected those terms and the Plaintiff's own letter superseded the 28 July letter. Nor could the Plaintiff's 4 August 2017 letter constitute a sufficient note or memorandum . The Plaintiff solicitor's 4 August letter, like other solicitors' correspondence, stipulated that no contract would exist until contracts were exchanged, a deposit paid and that the letter was not a note or memorandum in writing for the purposes of s. 51.
c. The 2017 correspondence ended with the Plaintiff's solicitor's 21 September letter to the defendant's solicitors noting the Plaintiff's instructions that there were no further developments. Accordingly, the ball remained in the Plaintiff's court when the correspondence ended in 2017. There were no concluded terms and the 21 September letter reiterated the "subject to contact/contract denied" caveat and the stipulation that no contract would exist until both parties exchanged contracts and a deposit was paid.
36. The 28 July 2017 letter will be considered further below. However, it has been seen that not only was it "subject to contract", it expressly stipulated that it could not be relied upon as meeting the s.51 requirements, that the letter did not constitute a concluded agreement and that numerous issues needed to be resolved and were recognised as requiring resolution before a contract could be concluded. Furthermore, the proposal discussed in April 2023 was fundamentally different to the embryonic 2017 proposals. Nor have I seen any evidence that the parties or their solicitors resolved the essential terms in 2017 or that the letter met the requirements of s.51.
37. The Plaintiff did not explain the apparent contradiction in its reliance on the 2017 correspondence, a dichotomy typified by examples (inter alia) from the affidavits sworn on its behalf:
a. its managing director stated at para. 10 of his 6 July 2023 affidavit that the 2017 correspondence
"was superseded by the defendant's agreement of April 2023 and the plaintiff's acceptance of the same"
b. Likewise, its solicitor's 20 June 2024 affidavit in response to the current application said at para. 11 that
"new negotiations began from 2018, and these negotiations took place between the plaintiff agents and the Defendant directly, with no solicitors involved. It was during these direct negotiations that the matters of exclusivity were discussed and agreed upon by the Defendant and this deponent and was when the Defendant ultimately offered and agreed to sell the property in April 2023". [5]
Likewise, para. 11 of the Plaintiff's Reply to the Defence responded to the Defendant's references to the 2017 correspondence (as establishing that the parties engagements were "subject to contract") by stating that that correspondence related:
"to a potential 2017 contract which it is denied came into existence or was a binding contract and it is denied that any 2017 agreement for a potential lease or sale existed and, if same existed (which is denied), then same expired in December 2017."
38. Paragraph 16 also referred to the prerequisites identified in 2017 correspondence as having lapsed, which seems inconsistent with its own reliance on that correspondence for other purposes.
The Legal Position
39. Order 19 Rule 28 RSC states that:
"(1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:
(i) discloses no reasonable cause of action, or
(ii) amounts to an abuse of the process of the Court, or
(iii) is bound to fail, or
(iv) has no reasonable chance of succeeding.
(2) The Court may, on an application by motion on notice, strike out any defence or part of a defence which:
(i) discloses no reasonable defence to the action, or
(ii) amounts to an abuse of the process of the Court, or
(iii) is bound to fail, or
(iv) has no reasonable chance of succeeding.
(3) The Court may, in considering an application under sub-rule (1) or (2), have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.
(4) Where the Court makes an order under sub-rule (1), it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly.
(5) Where the Court makes an order under sub-rule (2), it may make an order giving judgment in such terms as it considers just, and may make an order providing for the costs of the application and the proceedings accordingly."
40. I agree with the principles outlined by the Plaintiff in respect of the high bar for dismissing a Plaintiff's claim pursuant to Order 29 rule 28:
(a) As Clarke J noted in Moylist Construction Ltd v Doheny [2016] 2 IR 283, a party should only be deprived of a full trial
"when it is clear there is no real risk of injustice in adopting that course of action".
He noted that
"the default position in respect of any proceedings is that they should go to trial"
(b) As Morris J observed in Doe v Armour Pharmaceutical Inc [1997] IEHC 139, the Court should only strike out a claim if it is clear beyond doubt that a plaintiff could not succeed.
(c) Flanagan v Kelly [1999] IEHC 116 confirms that a pleading should not be struck out if the deficiency can be cured by an amendment.
(d) In Liam Grant v Roche Products (Ireland) Ltd & Ors [2008] IESC 35, Hardiman J. stated that the applicant bears a heavy onus in establishing an abuse of process.
(e) In Keohane v Hynes [2014] IESC 66 ("Keohane"), Clarke J stated:
"the jurisdiction is to be sparingly exercised and only adopted when it is
clear that the proceedings are bound to fail rather than where the plaintiff's
case is very weak or where it is sought to have an early determination on
some point of fact or law."
41. The current rule (combining the Barry v Buckley [1981] IR 306 jurisdiction with the original rule) invites an assessment of the credibility of the facts as asserted by the Plaintiff citing Clarke J's comments in Keohane (at para. 6.8):
"What the Court can analyse is whether a plaintiffs factual allegation amounts to no more than a mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward. Likewise, the Court can go into documents and facts where the relevant documents govern the legal relations between the parties or form the only possible evidential basis for the plaintiffs claim (as in Lopes). As Barron J. noted in Jodifern, a court can look at a contract and it may become clear beyond argument as to what that contract means. On that basis, it may follow that a plaintiffs claim may be bound to fail. But there may be cases where, notwithstanding the text of a contract, facts are asserted and backed up either by evidence or by the possibility that evidence might be found, which might lead to the contract being construed in some different way or the consequences for the wrong alleged in the proceedings being differently considered. In such cases, as Barron J. made clear, the case must go to trial."
a. while a plaintiff would not be expected to be in a position to specifically prove every fact in the context of resisting an application to dismiss, the Court can assess whether proceedings are bound to fail. This approach, with its limitations, was emphasised by Clarke J in Keohane (at 6.9):
"In cases where the legal rights and obligations of the parties are governed by documents, then the court can examine those documents to consider whether the plaintiffs claim is bound to fail and may, in that regard, have to ask the question as to whether there is any evidence outside of that documentary record which could realistically have a bearing on the rights and obligations concerned. Second, where the only evidence which could be put forward concerning essential factual allegations made on behalf of the plaintiff is documentary evidence, then the court can examine that evidence to see if there is any basis on which it could provide support for a plaintiffs allegations. Third, and finally, a court may examine an allegation to determine whether it is a mere assertion and, if so, to consider whether any credible basis has been put forward for suggesting that evidence might be available at trial to substantiate it. While there may be other unusual circumstances in which it would be appropriate for the court to engage with the facts, it does not seem to me that the proper determination of an application to dismiss as being bound to fail can, ordinarily, go beyond the limited form of factual analysis to which I have referred."
42. In Ryanair Ltd v Bravofly Ltd [2009] IEHC 224 Clarke J considered the plaintiff's application to strike out paragraphs of a defence and counterclaim, stating:
"A court should not lightly exclude matters from pleadings where there is at least some reasonable possibility that the material pleaded could be relevant. Matters should only be excluded where it is clear that such pleading is irrelevant."8
43. Courts are slow to strike out parts of pleadings. Collins J. noted the conflicting considerations in Ballymore Residential Ltd& Anor v Roadstone Ltd & Ors [2021] noting that it was: "highly undesirable" that the Court might (citing para. 24 the decision of Denham J, as she then was, in Aer Rianta v Ryanair Ltd [2004] 1 IR 506) routinely be asked to exercise such a "'blue pencil' jurisdiction which would be
"contrary to the policy of expeditious litigation. It would involve further costs and raise that consideration also. In addition it would involve motions which could be time consuming; as if part of a pleading is to be sought to be struck out, the probability is that at least one party will seek to have the issue analysed in the context of the whole pleading. Thus the entire pleading would be considered by the court. Indeed, there may be great difficulty in analysing a part of a pleading independent of the rest of the pleading."
44. Stack J in Christian v Symantec Ltd [2022] IEHC 397 ("Christian") agreed at para. 20 that
"the inherent jurisdiction of the court should only be exercised in relation to part of the proceedings in very rare and clear cases, where that part of the claim constitutes an abuse of process even though the remainder of the claim is properly brought, or where the defence of that particular aspect of the claim would prove oppressive for the defendant over and above any difficulties presented by the defence of the proceedings as a whole."
45. In Riordan v Ireland (No. 5) [2001] 4 IR 463 Ó Caoimh J referred with approval to the Canadian decision in Re Lang Michener and Fabian (1987) 37 DLR (4th) 685 identifying factors indicating that proceedings were vexatious, including:
"(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;
(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d)where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings."
46. In the absence of compliance with s.51, the Plaintiff must invoke the doctrine of part performance. The doctrine was explained at paras. 22 to 26 of my previous judgment and it appears from para. 17 of the judgment of Costello P that the Appellant agreed with that summary. Accordingly, I need not repeat it here save to briefly observe that:
· As Simon L.J. explained in Steadman v Steadman [1976] AC 536 ("Steadman"), the Courts of Equity would not allow the Statute of Frauds 'to be used as "an engine of fraud". But for the doctrine, even if a party to an oral contract for the sale of land had performed its side of the bargain, the other party could rely on the Statute of Frauds and disclaim liability because the contract was not in writing. The doctrine of part performance was developed to deal with such unconscionable behaviour:
"the 'part' performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract".
· In Holiday Inns v Broadhead (1974) 232 EG 951, at p. 1087, Goff J agreed that relief would be given to prevent a property owner taking unconscionable advantage
"of another by allowing or encouraging him to spend money, whether or not on the owner's property, in the belief, known to the owner, that the person expending the money will enjoy some right or benefit over the owner's property which the owner then denies him..."
· In Mackie v Wilde [1998] 2 IR 578 ("Mackie"), the Supreme Court identified the requirements. It must be established that:
"(1) there was a concluded oral contract;
(2) that the plaintiff acted in such a way that showed an intention to perform that contract;
(3) that the defendant adduced such acts or stood by while they were being performed; and
(4) it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the Statute of Fraud to prevent performance of the contract."
· JLT Financial Services Limited v Gerard Gannon [2017] IESC 70 ("Gannon") is a prime example of part performance. The parties' agreed that the defendant would take over the plaintiff's lease of one property in return for the plaintiff leasing another from the defendant. The Supreme Court observed at para. 39 that:
"there was a concluded contract; the plaintiff had performed its contractual obligation; the defendant had not merely induced and acquiesced in but had actively participated in the plaintiff's performance by granting the Richview lease; and it would be unconscionable and in breach of good faith to allow the defendant to rely upon the terms of the Statute to avoid having to fulfil what remained of his contractual liability".
47. I note the observation in McDermott at [5.140] that preparatory acts, that being acts by which "the plaintiff puts himself in a position to perform the contract", cannot amount to part performance. In that same paragraph the authors state that:
"For example, putting oneself in funds is not an act in performance of a concluded contract, rather it is an act preparatory to a contract. Similarly, the carrying out of a survey will be regarded as a preparatory act. Consulting an estate agent is also no more than a preparatory act. [see for example Howling v Power (unreported, High Court, 5 May 1978)]"
48. Furthermore, I note the observation of McCracken J held in Jodifern v Fitzgerald (unreported, High Court, 28 July 1999):
"There is one further matter ... namely that there was part performance of the contract. This of course assumes that there was an oral contract. I am quite satisfied that nothing was done by or on behalf of the plaintiffs which could possibly be construed as part performance. They attempted to survey the land, and were prevented from doing so by the defendants, and subsequently acknowledged that they would not apply for planning permission without the defendants consent. They certainly applied for finance, but I do not accept that negotiating a loan with a bank could be construed as part performance of a contract for the sale of land any more than the payment of the deposit is part performance"
ACE Autobody
49. The Court of Appeal judgment in ACE Autobody Ltd v Motorpark Ltd & Ors [2024] IECA 6 is a comprehensive summary of the principles governing specific performance claims. It is worth examining that decision in detail as it summarises the authorities and demonstrates the correct approach to such claims, including how the Courts determine objectively whether an oral agreement has been concluded, the significance of "subject to contract" negotiations between solicitors and what is required to trigger the doctrine of part performance. The appellant contended that the parties had concluded a binding oral lease agreement, on foot of which there had been "substantial acts of part performance referable to the said concluded agreement". It went into occupation and possession and assumed substantial obligations, including payment of rent and the transfer of employees pursuant to European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) (TUPE). There had been "subject to lease" negotiations between solicitors, but Whelan J concluded at para 97 that the principals' direct negotiations "brought to an end the period of "subject to lease" negotiations". The Court of Appeal concluded that there had been substantial acts of part performance of a concluded oral agreement and. At para. 98 Whelan J referenced:
"the legal and equitable consequences of the (Respondent's) cumulative acts, representations by words and conduct of Mr. Michael Barry and his son Mr. Colin Barry, as well as Mr. Halloran towards ACE to induce it to go into possession of the unit and expend money and take on 4 employees as proven in this case. The trial judge appears to have misunderstood the legal significance of the acknowledgement by Mr. Halloran in cross-examination that the key terms had been agreed between the parties in August/September 2016. ... He erred in considering as vague the repeated representations by the Barrys and Mr. Halloran that a lease would be forthcoming. He erred in not finding that the conduct of Mr. Michael Barry - including on 17th January, 2017 in standing back and allowing ACE to incur what the judge described as "substantial" expenditure was so unconscionable when considered against his solicitor's own evidence that he had stated his intention circa 15 December 2016 that the lease to ACE "might not proceed at all" was so unconscionable as to give rise to an estoppel".
50. Whelan J summarised the relevant principles from para. 159 onwards:
"159. Clarke L.J. in RTS Flexible Systems (supra) observes:
'45. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to
create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.'
160.In the instant case it is necessary to ascertain whether the parties agreed on all the terms which they objectively regarded or the law required as essential for the formation of legally binding agreement...
161.The UK Supreme Court in RTS Flexible analysed in significant detail various permutations where the existence of a contract is disputed including where the parties have reached agreement subject to contract but the issue is whether they have in truth waived the subject to contract stipulation in the course of their dealings. Lord Clarke in RTS Flexible indicated that where a contract has been performed on terms which were agreed to be subject to contract, that may nevertheless, depending on the relevant circumstances, constitute evidence of an intention to enter into a binding agreement. He also considered circumstances where agreement in principle has been achieved but all terms have not yet been agreed and the court has then to determine, based on an objective assessment of the relevant evidence, whether the parties actually intended to enter into a binding contract...
167. It is evident that there was a concluded agreement in place from the point in September where the principals on each side shook hands. All the essential terms of the lease were agreed between the parties..."
"...from 16 December the parties "stepped down" their engagement with their respective solicitors whose involvement thereupon ceased and proceeded to engage directly leading to a series of events which culminated on 16th January, 2017 in ACE going into possession at the behest of Motorpark and with its knowledge and consent. The "subject to contract" formula on the solicitors' communications had no impact on the terms of the agreement already concluded or subsequently agreed directly between the parties... Neither could it thereafter preclude direct negotiation, emails, representations and acts of the parties from and after 16th December, 2016 from being constituted or operating to evidence essential terms or act of part performance of a concluded agreement for the grant of the lease".
52. Whelan J summarised the principles with regard to the doctrine of part performance noting at para. 184 that the acts relied on should be performed in pursuance of the alleged agreement and, at para. 185 quoted Farrell, Irish Law on Specific Performance (Butterworths, 1994) , as observing:
"A party who has permitted another to perform acts on the faith of an agreement is not allowed to insist that the agreement is bad and that he is entitled to treat those acts as if the agreement never existed. So where the party seeking relief has taken some step in pursuance of his contract which has left him in such a position that it would amount to a fraud or be inequitable for the other party to rely on the fact that there was no sufficient memorandum of the contra, the case is taken out of the Statute of Frauds and the courts will enforce the contract.
185. Citing the decision of McWilliams J. in Howlin v. Thomas F Power (Dublin) Limited
(Unreported, High Court, 5th May 1978), Farrell observes at 6.01:
'If in reliance on a contract a plaintiff conveys land to a third party, enters into occupation of premises agreed to be let or sold to him, ejects tenants at the request of the other part or begins to carry on business in partnership he may rely on part performance. If he has taken some 'conclusive', 'irrevocable' or 'prejudicial' step in pursuance of the contract that step is likely to be a sufficient act of part performance. The doctrine is applicable in any case in which a court of equity would decree specific performance.'
He cites Palles CB in Crowley v. O'Sullivan [1900] 2 IR 478 at 489 - 492 in that regard. ...
186. Citing Andrews L.J. in Lowry v. Reid [1927] NI LR 142 at 154/5, Farrell observes: 'The question in each case is whether the plaintiff has an equity arising from part performance which is so 'affixed to the conscience' of the defendant that it would amount to fraud on his part to take advantage of the absence of writing. The equity arises from a plaintiff's part performance of the contract. The acts of part performance relied upon must be referable to a contract. Keane J. in Silver Wraith Ltd. observed that the acts which the plaintiff rely upon should be 'unequivocally referable to the type of contract alleged.'
187. Neil Maddox in Land and Conveyancing Law Reform Acts: A Commentary (Round Hall, 2009) observes in regard to part performance and s.51(2) of the 2009 Act at p. 278:
'...The acts of part performance must be referable to the oral contract which is the subject of the enforcement proceedings. That formulation represents the traditional view in this jurisdiction and is somewhat narrower than the views of the majority of the English House of Lords in Steadman v. Steadman 1976 A.C. 564 ...'"
53. The Court of Appeal emphasised:
"the distinct acts of part performance undertaken by ACE at the active instigation and urging of Motorpark and with its knowledge and consent, including taking possession of the unit on 16 January, 2017, paying the yearly rent when invoiced, discharging service charges/rates/outgoings, assuming full legal obligations for the transfer of four workers under TUPE and the corresponding acts of part performance by Motorpark in putting ACE into possession, invoicing for and accepting rent, service charges, transferring all legal obligations for four workers. Those acts were wholly consistent with the lease contended for by ACE".
54. Whelan J concluded that the trial judge had
"erred in disregarding the "substantial" expenditures by ACE on the unit and the evidence that same were induced by Motorpark and carried out with its encouragement and knowledge. Same constituted further acts of part performance of the agreement. Further, the conduct of Michael Barry, Colin Barry and, to a lesser extent, Gerry Halloran was such that in equity it would be unconscionable and a breach of good faith to permit the respondents to escape performance of the contract on any ground advanced".
55. Whelan J noted the evidence that the respondents had induced the appellants to go into possession on the basis of the "repeated assurances and representations that the agreed lease would be forthcoming" and, at para. 204 summed up the position:
"the elements of proprietary estoppel were established; the evidence as to the quality and strength of the assurances repeatedly expressly made by Motorpark that it would grant at ten-year lease of the unit was significant. The essential terms were established at the latest as of 22 December, 2016 when the commencement date was definitively agreed. The silence of Motorpark and its solicitor at ACE's rejection of the renunciation was conscious and rendered any assertion that it could be a term of the agreement unconscionable. The evidence of ACE's reliance on the strength of the assurances given was overwhelming. The judge accepted the evidence of Mr. Sutton and Mr. Plunkett that the issue of the lease was continuously raised, including by Mr. Plunkett directly with Mr. Michael Barry on 17 January, 2017, and that repeated assurances were given that the lease was forthcoming. No impediment to the grant of the agreed lease were ever divulged. The judge found the expenditures incurred by ACE were 'significant'.
188. Looking at all the evidence in the round, in light of the authorities...the extent and quality of Motorpark's assurances are such as to render it unconscionable that it should escape from its agreement with ACE for the grant of the agreed 10 year lease. Thus, on the evidence ACE is also entitled to specific performance on the alternative basis of proprietary estoppel in addition to the primary ground of part performance".
Triatic
56. In view of the Plaintiff's reliance on the alleged exclusivity commitment it is also instructive to note a decision cited by the Defendant which concerned a similar claim, Triatic Limited v County Council of the County of Cork [2011] IEHC 111, [2007] 3 IR 57("Triatic"). The Council agreed in writing that the plaintiff would have an exclusive right to submit a comprehensive development proposal for a property within a particular period. The period was extended but the defendant ultimately rejected the plaintiff's proposal and readvertised the property. The plaintiff sought to invoke the doctrine of legitimate expectation or to assert a contractual commitment by the Council to deal exclusively with it. Laffoy J dismissed the claim, noting that even if she had determined that the defendant was bound by an exclusive dealing commitment it would not avail the Plaintiff as the court could not require parties to agree the terms of a complex transaction. It was an agreement to continue negotiations until they resulted in a contract, but any such agreement was unenforceable for lack of certainty. She endorsed the House of Lords decision in Walford v Myles [1992] 2 AC 128 ("Walford") in which the vendor of a business agreed to deal exclusively with the plaintiff and to terminate negotiations with a rival bidder if the plaintiff furnished a letter of comfort confirming funding within three days (which was duly done). The vendor did end the discussions with the alternative bidder but, days later, decided not to continue negotiations with the plaintiff. It reopened negotiations with (and eventually sold to) the rival. Laffoy J noted Lord Ackner's conclusion at p.138 that: -
"The reason why an agreement to negotiate, like an agreement to agree, is unenforceable, is simply because it lacks the necessary certainty. ... [Counsel for Walford], of course, accepts that the agreement upon which he relies does not contain a duty to complete the negotiations. ... In my judgment, while negotiations are in existence either party is entitled to withdraw from those negotiations, at any time and for any reason. There can thus be no obligation to continue to negotiate until there is a 'proper reason' to withdraw. Accordingly a bare agreement to negotiate has no legal content."
57. Laffoy J, at para. 68, also cited Lord Ackner's observation in Walford that any such exclusivity agreement was, at most, a temporary lockout agreement and observed that the Vendor,
"by agreeing not to negotiate for a fixed period of time with a third party, locks him out of such negotiations. He has in no sense locked himself into negotiation with what A has achieved as an exclusive opportunity, for a fixed period, to try and come to terms with B, an opportunity for which he has, unless he makes his agreement under seal, to give good consideration. I therefore cannot accept [Walford's counsel's] proposition,...that without a positive obligation on B to negotiate with A, the lockout agreement would be futile."
58. Laffoy J's conclusion was summarised at para. 85 of her decision:-
"85. The letter of 10 March 1995, undoubtedly contained a promise by the defendant that the plaintiff would have the exclusive right to submit a comprehensive development proposal for Fort Camden within the stipulated period, and that period was extended from time to time... The defendant accepted, and considered, the development proposal submitted by the plaintiff. Neither the letter of 10 March 1995, nor any other representation made by, or conducted on the part of, the defendant is open to the interpretation that the defendant was promising that it would continue to deal with the plaintiff beyond the stipulated exclusivity period irrespective of the defendant's assessment of the development period submitted. ... On the evidence, the submission made by the plaintiff within the exclusively period was not to its satisfaction. Notwithstanding that, it renewed its dealings with the plaintiff in February 1997. However, in my view, there was no representation made or promise given, by the defendant at that stage that we continue to deal exclusively with the plaintiff until both sides came to an agreement.
86. It is instructive to consider whether... the plaintiff would be entitled to an order of mandamus or mandatory injunction to compel the defendant to bring the dealings between the parties to a point which would be permissible in law, namely to agree on terms, subject to planning permission, for recommendation to the elected members. It seems to me that the very same problems which prevent giving recognition to the existence of an enforceable contract between the parties would prevent the court from making an order of mandamus or mandatory injunction, particularly the lack of certainty."
59. At para. 87 Laffoy J accepted the defendant's submissions that there are strong policy reasons why the court should not extend the law of legitimate expectations to the conduct of negotiations in that it would interfere with the free flow of negotiations and lead to lack of predictability. She added: -
"87. But it seems to me that the most problematic outcome would be the virtual impossibility and the futility of the court's position. If the plaintiff had pursued its claim for injunctive relief and the court were to order that the defendant could not withdraw from its dealings with the plaintiff, what would that achieve? I think the answer is nothing. In reality a court cannot effectively order litigants or negotiating parties to agree the terms of a complex property development and acquisition transaction.
88. In my view, there is a large grain of truth in the suggestion made on behalf of the defendant that in this case the plaintiff is seeking to extend the notion of legitimate expectation to insulate it from the ordinary commercial risks which are inherent in negotiations."
Issue (a) - Was the 11 April 2023 telephone call subject to contract?
60. The parties' solicitors followed standard professional practice on their clients' behalf in 2017, repeatedly confirming "subject to contract" terms of engagement. If, as the Defendant contends, those arrangements covered the April 2023 discussions, the 11 April call could not give rise to a binding agreement or support a claim for specific performance - the doctrine of part performance would have no application. There would be no intention to commit to contractual relations until signed contracts were exchanged and a deposit paid.
61. There is no suggestion in the numerous affidavits sworn on the Plaintiff's behalf throughout these proceedings that the parties or their solicitors ever actually discussed the matter and expressly agreed to change the "rules of engagement" to depart from the subject to contract basis specified in their solicitors' letter. However, the Plaintiff asserts that those standard stipulations did not apply to the April 2023 discussions but only to the lapsed 2017 discussions and there was no intention that the subsequent discussions should be on the same basis as the earlier negotiations. It is important to note the terms of the particular stipulation which consistently graced both side's correspondence. For example. the Plaintiff's solicitors' 21 September 2017 letter stated:
"No Contract shall be deemed to be in existence until such time as Contracts have been exchanged between both parties, deposit paid and one part of the Contract duly exchanged. Please further note that this letter is not intended to be a note or memorandum in writing for the purposes of satisfying the Statute of Frauds as amended by section 51 of the Land and Conveyancing Law Reform Act, 2009".
The next letter from the Plaintiff's solicitor seems to have been the 2023 "acceptance" letter.
62. Although, for brevity, this has been referred to as a "subject to contract" stipulation, there were several elements to such "rules of engagement". No contract would be concluded unless and until: (a) Contracts were exchanged by both parties and (b) an agreed deposit was paid (and the Defendant did the same). Both parties also expressly stipulated that the correspondence was not a note or memorandum in writing for the purposes of s.51. Neither pre-condition was met in 2023.
63. The Plaintiff's grounding affidavit did not address this issue but, after the Defendant raised the issue, its Managing Director's affidavit dated 6 July 2023 stated at para. 5 that his solicitor's 2017 letter was dealing with a previous possible deal which did not proceed and:
"... the Defendant renegotiated a new contract with the Plaintiff and made a different binding offer on 11th April 2023 which superseded the 2017 possible deal which is distinct from the 2023 agreement and this offer was accepted by our solicitors on 20th April 2023".
64. My judgment discussed the "subject to contract" issue from paras 33 - 35, concluding that:
"58. ... The question is whether, when engagement resumed in early 2023, it was on the same basis or whether the parties envisaged that the agreed ground rules should be dispensed with. In the extensive but fruitless engagement between the principals and their representatives during the Prior Period, both sides repeatedly stipulated that there would be no binding agreement unless and until formal legal documents were negotiated, executed and exchanged.
59. The Plaintiff contends that these established negotiating parameters no longer applied when negotiations resumed in 2023. However, I have seen no objective evidence to suggest that the Plaintiff and the 76-year-old farmer wished or agreed to change the basis for their engagement. Accordingly, the evidence currently available suggests that the April 2023 discussions were also "subject to contract". If that is so, then the 11 April telephone call could not have been intended to give rise to a concluded legal agreement because that was not the basis on which the parties were engaging".
65. The amended Statement of Claim now argues that, even if the discussions remained without prejudice, that would not necessarily preclude the claim and that, in any event, the 2017 arrangements had lapsed and therefore did not extend to the April 2023 telephone call. I will consider both points.
66. The Plaintiff's solicitor's first affidavit seeking leave to amend said that the amendments were needed, inter alia, to deal with the
"effect of 'subject to contract' qualifiers upon predecessor Terms of Agreement".
Furthermore, although a matter for submission, the amended Statement of Claim states that:
"40. The Plaintiff argues that a subject to contract designation on an agreement text is not dispositive of whether an enforceable contract arises thereon and relies upon inter alia O'Connor v. P Elliott and Company [2010] IEHC 167 in that regard.
41. The Plaintiff argues that in the case of an assurance or leading by the Defendant of the Plaintiff to believe that the Plaintiff Company would have a right or benefit over the Sale Property which had been relied on and the other party has suffered detriment (financial or otherwise) the usual protections afforded by a "subject to contract" marker on terms of agreement can be avoided".
67. O'Connor v. P Elliott and Company [2010] IEHC 167 may not advance the Plaintiff's claim. That case concerned a disagreement which broke out about four months after both sides' solicitors had acknowledged in open correspondence their clients' agreement of the essential terms. The Court held that the use – after the conclusion of the agreement - of the rubric "subject to contract/contract denied" could not avail the Defendant as the deal had been done, and evidenced in writing, months before. The judgment gives a detailed chronology, also noting at para 6 that, while earlier discussions about a previous issue had also been subject to contract, as far as the particular issues were concerned the parties had reached an open agreement in writing by 18 July 2007 and the retrospective emergence of "subject to contract" language could not avail the Defendant. At page 23 Murphy J noted:
"That (July 2007) open correspondence (albeit in part made "without prejudice") removed the "subject to contract" element.
The Court recognises the general rule that there is no concluded agreement until such time as written contracts have been exchanged (see McDermott; Contract Law, Butterworths (2001) at 81 and Winn v. Bull (1877) 7 Ch. D 29). The exception to that general rule is where there is already a concluded oral agreement of which there is an adequate note or memorandum to satisfy the Statute of Frauds (Ireland) 1695 or where there are sufficient acts of performance. (McDermott, Op cit., Kelly v. Park Hall School Ltd. [1979] I.R. 340; Mulhall v. Haren [1981] I.R. 364; and Boyle v. Lee [1992] 1 I.R. 555.)"
68. The significance of the fact that the "subject to contract" rubric appeared too late in that case (unlike this case) is demonstrated by Murphy J.'s citation of Keane J's observation at para. 328 of Jodifern Ltd. v. Patrick Fitzgerald and Margaret Fitzgerald [2000] 3 IR 321 ("Jodifern (SC)") that
"Keane J. concluded by remarking that the claim and submissions rested unequivocally on the two agreements for sale and not on subsequent correspondence protected as it was by the use of the formula 'subject to contract/contract denied'."
69. Returning to whether "subject to contract" and related stipulations covered the 11 April 2023 call, paras. 62-79 my previous judgment noted concerns about aspects of the Plaintiff's case as to how the "agreement" was supposedly entered into. Such concerns raise questions as to the basis for the claims to relief either in law or in equity. Those concerns are not assuaged by the amendments but are not matters for determination on this application.
70. As my previous judgment also noted, authorities such as Boyle v Lee [1992] 1 IR 555, Embourg Limited v Tyler Group Limited [1996] 3 IR 480, Eccles v Bryant & Pollack [1948] Ch 93 and Greenband Investments v Bruton [2009] IEHC 67 present significant obstacles to the Plaintiff's attempt to assert that a contract was concluded in April 2022 without the "subject to contract" safeguards which the parties' solicitors previously agreed. In Embourg the Supreme Court approved Lord Greene MR's observations at para 99 of Eccles:
"When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties express or implied. In such a contract as this, there is a well-known, common and customary method of dealing; namely, by exchange, and anyone who contemplates that method of dealing cannot contemplate the coming into existence of a binding contract before the exchange takes place." (emphasis added)
71. Clarke J's comments were similar in Greenband Investments v Bruton & Ors [2009] IEHC 67:
"5.2 ...Parties may enter into discussions for the purposes of identifying the terms on which they might be prepared to contract but may expressly, or by implication, do so on the basis that no contractual relations will be entered into until such time as formal written contracts have been executed by all of the parties. In such circumstances no oral agreement can be said to come into existence which amounts to a binding contract, for the parties do not have in their contemplation that their oral discussions will lead to contractual relations.
5.3 In those circumstances it is only if the process leading to the finalisation of a written agreement reaches the stage where it can be said that that written agreement amounts to 19 binding contractual arrangements between the parties, that there can be said to be any contract in existence...
5.4 However, parties may also enter into oral discussions which cannot be properly characterised as involving either an express or an implied intention that the discussions concerned should not, if successful, to [sic] give rise to a contract between the parties. In such circumstances, provided all of the relevant prerequisites for a binding contract are in place, then there is no reason why a court should not conclude that there is an oral agreement between the parties which amounts to a contract. It will, of course, be the case that any such oral agreement will not be enforceable unless and until there comes into existence a note or memorandum "sufficient to satisfy the Statute of Frauds or a sufficient act of part performance to render it inequitable to allow a party resisting enforcement of the contract to rely on the absence of such a note or memorandum."
72. However, although this issue presents a serious challenge for the Plaintiff, I am not inclined to strike out the claim at this stage on this ground. There are countervailing authorities. For example, as O'Connor v. Elliott noted, Hardiman J. held in Supermac at 281 that:
"it is plainly arguable that the use of this (subject to contract) rubric by the solicitors does not preclude the existence of a 'done deal' between the parties themselves, which the plaintiffs contend for. Insofar as it is contended that the plaintiffs are estopped by the use of the rubric from asserting a completed and enforceable agreement, this seems to be plainly a matter for evidence at the trial."
73. Likewise, in Attorney General of Hong Kong v Humphrey's Estate (Queen's Gardens) Ltd. [1987] AC 114 ("Humphrey's Estate") the Privy Council observed (in relation to a scenario similar to the present case) that, where negotiations had been stipulated to be "subject to contract", it was unlikely that the court would be satisfied that the parties subsequently agreed to convert their ongoing negotiations into a contract without such formalities or that an estoppel arose. The Privy Council concluded at pp. 127-128 that:
"It is possible but unlikely that in the circumstances at present unforeseeable a party to negotiations set out in a document expressed to be 'subject to contract' would be able to satisfy the court that the parties had subsequently agreed to convert the document into a contract or that some form of estoppel had arisen to prevent both parties from refusing to proceed with the transactions envisaged by the document".
In the light of Humphreys Estate's description of such a position as "possible but unlikely" and also in the light of Supermac and O'Connor v. P Elliott and Company (which considered that a "subject to contract" designation in relation to a previous development agreement did not apply to the subsequent negotiations which gave rise to that litigation) and also in the light of the Court of Appeal's decision in Ace Autobody, it would be going too far at this point to say that the claim is bound to fail because the discussions were "subject to contract". It is possible - particularly in view of the timelag between 2017 and the 2023 telephone call - that the Plaintiff might establish at trial that the subsequent discussions were not subject to such "subject to contract" stipulations. That proposition may seem unlikely in the light of the parties' past dealings. However, the Plaintiff should not be precluded from making such a case. That said, the amended Statement of Claim's attempt to rely on the 2017 correspondence for other purposes reinforces the Defendant's position that the same correspondence rendered the April 2023 discussions "Subject to Contract". The Plaintiff has not resolved this inconsistency.
(b) Was there is a note or memorandum which satisfies the requirements of s.51 of the 2009 Act? (the s.51 requirements)
74. Section 51, which replaced s. 2 of the Statute of Frauds (Ireland) 1695, provides:
"(1) Subject to subsection (2), no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and signed by the person against whom the action is brought or that person's authorised agent.
(2) Subsection (1) does not affect the law relating to part performance or other equitable doctrines.
(3) For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit in money or money's worth is not necessary for an enforceable contract." (emphasis added)
75. In terms of the rationale for this ancient requirement, para 21 of my previous judgment referenced McDermott at [5.44] that:
"Many legal systems have formal requirements for the sale of land. For many persons a sale or purchase of land will be the most important financial transaction of their life. It has been said that:
'The significant cost of land, the fact that it is a permanent and limited commodity and the fact that land transactions tend to be carefully planned, are all said to justify a requirement of written evidence. Also the fact that the law allows for a multiplicity of simultaneous interests in a single piece of land creates a need for extra clarity where a particular interest is being disposed of.'
Thus there is a need to protect such persons and to ensure that they understand the enormity of what they are undertaking."
76. Costello P noted at para. 17 of her judgment in this case that:
"The appellant accepts that there is no note or memorandum sufficient to satisfy the provisions of s.51 of the Act of 2009. Instead, it relies upon the doctrine of part performance".
77. The Plaintiff's replies to particulars dated 27 July 2023 confirmed that it was not alleging that there was a note or memorandum of the "agreement". (reply 5(h)). However, the amendments resile from the Plaintiff's position on this issue and also undermine its position on the "subject to contract" issue. The amended Statement of Claim now alleges that there was a note or memorandum sufficient to meet the s.51 requirements. Paragraph 36 states:
"36. ... the Defendant argues that that terms of the April 2023 Agreement are those as communicated 20 April 2023 in writing and/ or those as communicated 20 April 2023 in writing and incorporate together with and amending the 28 July [2017] terms of agreement) confers enforceabilitv upon the April 2023 Agreement." (sic)
78. The amended reliefs sought by the Plaintiff include:
"11. ... a Declaration that the Written Document a Contract for Purchase of the Sale Lands for the purposes of the Statute of Frauds Act 1695 and/ or Land and Conveyancing Law Reform Act 2009 (as amended)..."(sic)
79. Accordingly, the Plaintiff relies on the letter from the Defendant's solicitors dated 28 July 2017 and also invokes the Plaintiff's solicitor's 20 April 2023 "acceptance" letter as meeting the s.51 requirements (but there is no basis for the latter contention as s.51 stipulates that the "note or memorandum" must be "signed by the person against whom the action is brought or that person's authorised agent"). The 28 July 2017 Defendant's solicitor's letter was in the terms set out above, stating that the letter should not be used
"as a Note or Memorandum sufficient to satisfy the Statute of Frauds".
It does not support the Plaintiff's plea and does not meet the s.51 requirements. As Murphy J noted in O'Connor v. Elliott that Keane J (as he then was) held in Jodifern (SC) at 328:
"...[P]rovided a document exists which is capable of constituting a note for memorandum sufficient to satisfy the Statute of Frauds and which does not contain the words 'subject to contract' the principles laid down by this court in Boyle v. Lee [1992] 1 I.R. 555 do not apply, as was made clear by the judgment of O'Flaherty J. in the latter case." (emphasis added)
80. The Plaintiff's reliance on the 28 July 2017 letter to meet s. 51 requirements (and, as we shall see, for the planning permission term) also contradicts its position (in response to the "subject to contract" point) that those discussions had no bearing on the April 2023. Either:
· the stipulations in the 28 July 2017 letter and related correspondence (much of it emanating from the Plaintiff's solicitor) did apply to the 11 April 2023 telephone call - in which case there was no concluded agreement or
· those stipulations did not apply, in which case the s.51 requirements were not met and there was also no concluded agreement because of the uncertainty as to the planning permission requirement.
81. In my view, any contention that the 28 July 2017 letter constitutes a note or memorandum sufficient to satisfy s.51 requirements must fail because: (i) the letter disavowed any such intention; (ii) its terms were too uncertain in any event; and (iii) its terms were also very different to those allegedly agreed in 2023; and (iv) the 28 July 2017 terms were never agreed by the Plaintiff; and (v) those terms were superseded by other correspondence, including letters from the Plaintiff's solicitor which made clear that there was no agreement.
Issue (c) Was there a complete agreement, or were essential terms (planning permission and deposit arrangements) uncertain, rendering the "agreement" void for uncertainty?
82. The Plaintiff's position in its original Statement of Claim and in its affidavits and submissions throughout the injunction proceedings was that the "offer" was conditional on the Plaintiff obtaining planning permission, but no period was agreed for doing so. The Plaintiff's responses to requests for particulars did not advance matters. For example, when asked for particulars of the planning permission to which the alleged sale was subject "and, in particular, what timeframe (if any) was allegedly to be imposed for the obtaining of said planning permission" the plaintiff simply replied
"subject to planning permission for the continuation of the sandpit and associated works".
83. As the Court of Appeal observed,
"5. The appellant asserts that during a telephone call on 11 April 2023 with the appellant's Mr. Ivan Pratt, the respondent offered to sell the land to the appellant "for the sum of €1.2 million subject to planning permission". In Mr. Pratt's second affidavit, sworn on 6 July 2023, Mr. Pratt addressed what was meant by the phrase "subject to planning permission". He averred: "I say that the [respondent] is aware the 11th April 2023 agreement by the [respondent] to sell the lands to the [appellant] was subject to planning permission and the [respondent] knows what that involves and the [respondent] is aware the [appellant] knows what planning permission involves as we previously discussed it."
84. This was a key reason for the failure of the injunction application. The lacuna rendered the entire "agreement" uncertain (and thus unenforceable). As Costello P put it:
"16. ... the contract alleged in the pleadings and on affidavit is incomplete and uncertain so that, in my judgment, there is no arguable case that there exists an enforceable agreement at all. ...A time limit in which planning permission must be obtained is essential: otherwise, the agreement is entirely open-ended. This was conceded by the appellant's senior counsel so this Court must determine the appeal on that basis, which precludes the possibility that at trial evidence to the contrary may be adduced. In effect, such a term in an alleged contract for the sale of land would amount to an option to purchase the lands at an indeterminate time in the future, not a concluded contract, as there would, in fact, be no obligation on the appellant to apply for planning permission at any particular point in time, or indeed, at all; while the respondent would remain bound and not free to dispose of the land elsewhere, or indeed, to exploit it himself. This underscores the fact that such a time limit is an absolutely critical term of any contract to sell the land. It is notable that in earlier negotiations, the time for obtaining planning permission was fixed. I am satisfied that the failure to agree such a time limit is fatal to the existence of a concluded enforceable contract".
85. The draft amendments are directed to this issue, inter alia:
"34. (Planning permission was a requirement of the [2017] Agreement and the amended and/ or successor and/ or April 2023 Agreement which benefited both Parties in supporting the agreed Sale Price and was an element of the Offer made to the Plaintiff by the Defendant and which was accepted by the Plaintiff.)
36. ... the Defendant argues that that terms of the April 2023 Agreement are those as communicated 20 April 2023 in writing and/ or those as communicated 20 April 2023 in writing and incorporate together with and amending the [28 Julv 2017] terms of agreement) confers enforceabilitv upon the April 2023 Agreement."
86. The invocation of the 28 July 2017 letter to define the parties' intentions as to planning permission is flawed for the reasons noted above. However, even leaving aside those objections, the letter does not show that the parties agreed the period for obtaining planning permission. It said that:
"The sale is subject to planning permission issuing within an agreed period (we would propose 18 months) from the date of contract....We would be obliged if you could take instructions and revert to us as soon as possible".
87. There is no evidence that the Plaintiff accepted the suggested period for planning permission, whether in 2017 or thereafter. The Plaintiff's solicitor's letter of 4 August was to the opposite effect. Accordingly, the 28 July 2017 agreement does not assist the Plaintiff, and the claim is bound to fail on this ground alone.
88. For completeness, I should note the similar argument that no agreement was concluded in the absence of payment of an agreed deposit. My earlier judgment reviewed the authorities, including Supermac in which Geoghegan J observed at pp 286-287, that:
"If the evidence is that there is going to be a deposit but that the amount of it is still to be negotiated, there cannot be a concluded agreement".
89. Para 89 of my judgment noted that it was unlikely that the parties intended to commit to a €1.2 million deal on 11 April without payment of an agreed deposit and without agreement as to how long the Plaintiff would have to secure planning permission. The Court of Appeal judgment also noted the stipulations in respect of the issue in the 2017 solicitors' correspondence. If the Plaintiff seeks to rely on the 28 July 2017 letter to meet the requirements of s.51 and to determine the period within which planning permission must be secured, then it must also be bound by the same letter's stipulation that a 10% deposit was payable on signing. No such deposit was ever paid. While it is clear that the Defendant and his solicitors envisaged in 2017 that an agreed deposit would be paid before any agreement was entered into - in accordance with normal practice - there is no suggestion that that point was ever resolved, further reinforcing the conclusion that no agreement was concluded.
Issue (d) - Are there Sufficient Acts of Part Performance?
90. In view of my conclusion that there was no note or memorandum meeting the requirements of s.51 the Plaintiff needs to invoke the doctrine of part performance in order to be able to seek to enforce the April 2023 "Agreement".
Plaintiff's original position on Part Performance
91. Paragraphs 24 to 26 of the original Statement of Claim alleged that the Plaintiff suffered loss, inconvenience and expense as a result of its reliance on the Defendant's representations:
"in respect of surveys carried out on the property and in foregoing other business opportunities costing the Plaintiff approximately €15,500,000. It is inequitable for the Defendant to resile from his obligations to the Plaintiff by stating on 28th April 2023 that he would be putting the property to tender".
92. These allegations are disputed by the Defendant but it is not necessary to resolve that issue. Leaving aside the controversies as to what transpired on the 11 and 25 April 2023 calls, the conflation and confusion of events and timelines in the pleadings [6] and the amendments cannot disguise the fact that the alleged expenditure and missed opportunities largely predated the formation of the "contract" and therefore could not constitute part performance of that "contract". As appears from the evidence throughout the proceedings, all such expenditure and foregoing of opportunities (with one possible exception which is considered below), took place prior to the formation of the April 2023 "contract" and therefore could not constitute part performance thereof.
93. The Court of Appeal noted that the "acceptance" letter made clear that the acts relied upon by the Plaintiff predated the alleged contract and observed:
" 19.... one of the essential requirements of the application of the doctrine is that one party to a concluded contract performs part of its obligations under the contract in question. The appellant pointed to actions predating the contract which were said to amount to acts of part performance of the contract yet to be concluded and which it sought to be specifically performed. In my judgement, this is both illogical and legally unsound. No authority for this startling proposition was advanced and it is contrary to the judgment of the Supreme Court in Mackie. I have no hesitation in saying that the appellant has no arguable case on this point.
20. It follows, therefore, that the only acts of part performance which the appellant could, as a matter of law, rely upon on the facts of this case, are those acts it asserts it took to perform its obligations under the asserted contract between 24 April 2023 (when the registered letter notifying the respondent of the appellant's acceptance of his alleged offer to sell was received), and 25 April 2023, when the respondent informed Mr. Pratt that he was not going to sell the lands to the appellant, but he was going to sell them by tender."
94. In view of the Court of Appeal's ruling that it was "both illogical and legally unsound" for the Plaintiff to rely upon acts of alleged forbearance or expenditure which predated the "contract", it is remarkable that the Plaintiff's amendments failed to excise those pleas from the draft amended pleading to focus on any acts of part performance which occurred during the relevant period. The retention of those pleas does not enhance the claim.
95. In the injunction proceedings, the Defendant repeatedly challenged the Plaintiff's failure to particularise its claim of part performance and challenged the assertion that there had been any such part performance following "acceptance", The solitary example of alleged detriment which may have occurred during the relevant window is referenced in the statement by the Plaintiff's solicitor in his 20 June 2024 Affidavit, that, as a result of the 11 April 2023 "offer" that:
"... in appointing the said planning consultant and incurring the said cost, the Plaintiff... has suffered detriments on account of the Defendant's attempts to repudiate the said contract"
While the appeal was pending, the proceedings continued and the Defendant unsuccessfully sought particulars and discovery of the alleged acts of part performance, probing the very matters now in issue. The High Court and Court of Appeal judgments also focussed on this issue as did the Defendant's discovery application. For example:
a. Paragraph 16 of the defence stated that
"16. ... the Plaintiff has not pleaded any act(s) of part performance whatsoever in the Statement of Claim in respect of the alleged contract in respect of which the Plaintiff seeks specific performance. Without prejudice to the generality of the foregoing, it is denied that any acts capable of amounting to part performance occurred, and the Plaintiff is not entitled to specific performance as a consequence".
b. The Defendant sought voluntary discovery from the plaintiff and, in the absence of a satisfactory response, issued an application. Category 2 (d) concerned
"all documents which record and/or evidence and/or refer to and/or relate to...any detriment, loss, damage, inconvenience and expense which the plaintiff claims to have suffered as a result of the matters pleaded in the Statement of Claim".
The Plaintiff's solicitor's 22 May 2024 replying affidavit on the discovery application confirmed to the Court that the Plaintiff's managing director was collating the category 2 (d) documentation. In the event failed to do so or to respond within 28 days as promised. The Plaintiff never furnished the discovery.
c. The Defendant's solicitor's 1 May 2024 letter to the Plaintiff's solicitor, following my decision and warning of the proposed strike out application, emphasised that:
"no evidence to support such a claim for part performance has been adduced to date, despite the volume of affidavit evidence adduced on your client's behalf, beyond the bare assertion that a planning consultant was allegedly appointed...
Our client has repeatedly called upon your client to properly deliver particulars and vouching of ... any alleged part performance by your client, but your client has consistently refused, failed, and/or neglected to provide anything meaningful ...".
96. One of the grounds in the Plaintiff's Notice of Appeal was that a fair issue arose to be tried in relation to the appointment of a planning consultant as to:
"whether consideration had post-dated the Plaintiff written acceptance of the offer and passed from the Plaintiff, particularly having regard to the rule of law that consideration need not be adequate per the rule expressed in the House of Lords case of Chappell & Co & Nestle Co Ltd [1958] UKHL 1 that a peppercorn can have adequate economic value to be good consideration (a fortiori when a Planning Consultant can have higher economic value than a peppercorn) and that consideration need not be adequate". p.413
97. The Court of Appeal noted the Plaintiff's senior counsel's acceptance that the engagement of "an unidentified planning consultant" was the only act of part performance relied upon by the Plaintiff during the contractual period but the Court concluded on the facts that this did not amount to an even stateable argument that the appellant had part performed the alleged contract, (while also noting that, in any event, the acceptance letter suggested that the consultant had been retained before the alleged contract was concluded).
98. Paragraphs 20-21 of the Court of Appeal judgment gave short shrift to the contention that the Plaintiff's alleged retention of a planning consultant sufficed to trigger the doctrine:
"In response to questions from the court, senior counsel for the appellant confirmed that the sole act of part performance now relied upon by the appellant, was the engagement of an unidentified planning consultant. I am quite satisfied that on the facts of this case, this does not amount to an even stateable argument that the appellant part performed the alleged contract.
21. In the first place, the appointment of a planning consultant was a matter for the appellant; but it was not an obligation under the contract i.e. in appointing a planning consultant, the appellant was not performing the contract for sale of the lands. Secondly, the evidence suggests that the planning consultant was appointed before the alleged contract was concluded, and thus, could not amount to an act of part performance. The appellant's solicitor's letter of 20 April 2023, states "[o]ur clients have accordingly arranged a planning consultant to apply for the requisite Planning Permission ..." [Emphasis added]. Whenever the planning consultant was instructed, it was on or before 20 April 2023, and thus cannot have occurred in the narrow window between 24 and 25 April 2023. Therefore, even assuming that such was an obligation of the appellant under the contract, it cannot amount to an act of part performance of the contract. - 14 - 22. Further, while not decisive, the Statement of Claim does not even plead a case in part performance".
99. The Plaintiff's current position on part performance was summarised by its solicitor's 20th June affidavit in response to this application at para 19 which noted that the 20 April 2023 "acceptance letter" had informed the Defendant that:
"that the Plaintiff had 'arranged a planning consultant to apply for the requisite planning permission' in accordance with the terms of the offer discussed on 11 April 2023. I say and believe and am so advised that in appointing the said planning consultant and incurring the said cost, that the Plaintiff part performed the terms of the said contract and has suffered detriment on account of the Defendant's attempts to repudiate the said contract".
100. The affidavit grounding the application to amend and the opposition to the current application stated that the proposed amendments related to, inter alia, the nature of the part-performance of the April 2023 Agreement "after the date of the pleaded 20 April 2023 Date of Acceptance". The draft amended Statement of Claim advances additional pleas:
"30. (Part performance of the April 2023 Agreement (reflected in writing in final form on 20 April 2023) occurred by wav of inter alia the retention at expense by the Plaintiff of the Planning Consultant and the expense thereof and which were paid and/or became due and owing as a result thereof and became incurred and/or so due and owing prior to the date of the Defendant attempting unlawfully to repudiate the contract made April 2023 and accepted in writing 20 April 2023.)...
32. (The Plaintiff retained at an economic cost a Planning Consultant in order to part-execute the Agreement for Sale ... and this retention cost and/ or the requirement to pay it was incurred prior to the 25 April 2023 date of attempt by the Defendant to purport to withdraw from the Agreement ... and expenses in relation to same accrued both before and after the 20 April 2023 date of Registered Letter of Acceptance).
33. ... that single crucial element of consideration and/ or part performance confers enforceability upon the April 2023 Agreement and succeeded in doing so before the Defendant sought to withdraw from the Contract for Sale of the Lands.
34. (Planning permission was a requirement of the 2019 Agreement and the amended and/ or successor and/ or April 2023 Agreement which benefited both Parties in supporting the agreed Sale Price and was an element of the Offer made to the Plaintiff by the Defendant and which was accepted by the Plaintiff.)
35. The Plaintiff argues that Defendant was too late in seeking to withdraw ... in that part-performance and/ or detriment and/or consideration had already been tendered after the date of Offer and Acceptance and prior to 25 April 2023 date of attempted withdrawal from the Agreement (attempted by the Defendant).)"
101. Although the Plaintiff did not seek to amend the indorsement of claim, the amended Statement of Claim sought amended reliefs including:
"1. (A Declaration that the expense of the hiring a Planning Consultant for preparation of planning permission works for use by both the Plaintiff and the Defendant in the April 2023 Agreement, works undertaken within days of the 11 April 2023 Agreement and undertaken prior to the 25/27 April 2023 date of purported withdrawal from Contract for Purchase of the Sale Lands) constitute consideration of economic value rendering the offer made 11 April 2023 and accepted in writing 20 April 2023 (and/or the Offer made in writing 28 Julv 2019 as amended and/ or made 11 April 2023 and accepted in writing on 20 April 2023) an enforceable contract;)
2. (A Declaration that said Planning Consultant retention cost was incurred and/ or increased after the 20 April 2023 date of Registered Letter of Acceptance) and prior to date of alleged repudiation;
3. (Further and/ or a Declaration that the retention by the Plaintiff of a Planning Consultant as notified in writing on 20 Aril 2023 to meet the planning requirement of the 28 Julv [2017] Terms of Agreement (as amended 11 April 2023) and/or the 11 April 2023 Agreement (and reduced to writing on 11 April 2023 and/or a memorandum of same made 11 April 2023) (together and each the "April 2023 Agreement" and/ or ("July [2017] Agreement as amended and incorporated April 2023") constitutes valuable consideration and/ or consideration of economic value which was received by the Defendant in that it went to the benefit of the Defendant in obtaining planning permission for the lands the subject of agreement, thus rendering the April 2023 Agreement enforceable;)
...
5. A Declaration that the Plaintiff retained at an economic cost a Planning Consultant in order to part-execute the Agreement for Sale offered by the Defendant and accepted bv the Plaintiff.) and that this retention cost occurred prior to the 25 April 2023 date of attempt by the Defendant to purport to withdraw from the Agreement to Sell the Lands the subject of the within dispute to the Plaintiff.
6. A Declaration that the Plaintiff retained at an economic cost a Planning Consultant in reliance upon the clear unambiguous representation made by the Defendant that the Lands would be sold to the Plaintiff at the indicated price and that no sale or negotiations for sale would be made with a third party.
7. (Further and/or in the alterative), a declaration that a Proprietary Estoppel arises in favour the Plaintiff (sic) over the ands the subject of the within dispute in that the Defendant made a clear, unambiguous representation that a sale would take place exclusively to the Plaintiff and/or the offers for sale would exclusively be made to the Plaintiff and in reliance upon said representation the Plaintiff suffered extreme detriment including inter alia in foregoing a circa €10 million profit and similarly substantial sums from [2017] onwards in alternative transactions;)...
12. (Further and/or in the alternative, a Declaration that in relation to the April 2023 Agreement part performance has occurred, rendering the April 2023 Agreement enforcible) (sic);
102. According to its submissions, the Plaintiff claims part performance of the April 2023 contract in relation to Planning Consultancy expenses
"incurred as a consequence of the Defendant's misrepresentations, and prior to the Defendant's attempted repudiation of the said sale contract";(emphasis added)
The lack of specificity of this plea is remarkable. It appears that the Plaintiff is not asserting that the expenses were incurred prior to the "acceptance" of the "offer". However, any expenses allegedly made over the years in consequence of the alleged misrepresentations are not a basis to invoke the doctrine of part performance. The expenses would have had to be incurred in reliance on the alleged April 2023 contract. Any claims based on the earlier alleged misrepresentations referenced in the submissions and the pleadings and the affidavits are irrelevant.
103. The Plaintiff's submissions went on to state that:
" the Defendant is too late to withdraw from the April 2023 contract on account of the Plaintiff's part performance".
a. "A summary of certain key proposed amendments to the reliefs sought are:
A declaration that the expense of hiring a Planning consultant pursuant to the April 2023 contract constitutes consideration of economic value;
A declaration that the Plaintiff retained at an economic cost a Planning Consultant pursuant to the April 2023 contract upon the reliance of a clear and unambiguous representation made by the Defendant to the Plaintiff".
Defendant's response to Amended Case in respect of Part Performance
104. The Defendant's 24 May 2024 affidavit noted the draft Amended Statement of Claim's "cryptically pleaded" references to such expenses (retaining a planning consultant) as having been incurred both before and after the 20 April 2023 acceptance letter, adding at paras. 40 - 41 that
"40. ... no detail is offered as to: (a) precisely when this engagement actually took place; (b) what work the planning consultant actually carried out during the material days; or (c) what the alleged cost to the Plaintiff actually was. I also note that 22 and 23 April 2023 were a Saturday and a Sunday respectively.
41. I further believe and am advised that it is material that the Plaintiff is not alleging that: (a) it took up possession of the Inherited Lands; (b) paid any purchase monies or a deposit (c) expended any money on the Inherited Lands; or (d) commenced any form of conveyancing step in respect of the acquisition of the Inherited Lands".
105. The Defendant's 1 July 2024 affidavit also highlighted the paucity of the Plaintiff's evidence:
"Plaintiff's Failure to Produce Evidence Necessary for Claim
9. The Grounding Affidavit ... noted that, nowhere within that narrative or the Plaintiff's case as pleaded, have any material facts been alleged which, I am advised, could ground the Plaintiff's claim... the Plaintiff can be in no doubt that I am specifically raising the absence of any evidential basis for its claim.
10. In response, Mr Mooney, in the Plaintiff's Solicitor's Replying Affidavit, has simply stated, at paragraph 14, that producing any support or documentation for his claim is a matter for evidence at trial yet goes on, at paragraph 25 to say that the "Plaintiff has committed to the alleged project on the Inherited Lands and that the Plaintiff incurred expenditure in line [with same]" and goes on to make allude (sic) to "invoiceable work and/ or bills" which were "billed to the Plaintiff'. I believe that it is extraordinary that the Plaintiff - in the face of a motion to have its claim dismissed - has still declined to put any detail or, indeed, evidence before this Honourable Court as to whether it has any theoretical case as against your Deponent.
11.Neither the Plaintiff or anyone on its behalf ever mentioned the engagement of a planning consultant or anything of the kind either, save in the letter from Mr Mooney dated the 20 April 2023 (and received 5 days later). It is extraordinary that, on being specifically challenged on this, Mr Mooney (on behalf of the Plaintiff) simultaneously refuses to produce any evidence or exhibit same yet avers cryptically to its existence and seeks to place weight upon it in order to oppose my application.
12. Similarly, at paragraph 40 of the Grounding Affidavit, I noted the failure of the Plaintiff to particularise or evince (sic) the (newly) pleaded, alleged part-performance in April 2023 which seems to be supported by vague reference to the engagement of a "Planning Consultant". In response, Mr Mooney in the Plaintiff's Solicitor's Replying Affidavit has simply chosen not to address paragraph 40 of the Grounding Affidavit or provide any further detail, let alone exhibited evidence, of same.
13. I reiterate my advice and belief that it is material that the Plaintiff is not alleging that: (a) it took up possession of the Inherited Lands; (b) paid any purchase monies or a deposit (c) expended any money on the Inherited Lands; or (d) commenced any form of conveyancing step in respect of the acquisition of the Inherited Lands. Indeed, the letter from the Plaintiff's Solicitor dated 20 April 2023, purporting to "accept" an alleged contractual offer, states incongruously that he "look[s] fonvard to receiving the relevant contractual documentation within 10 days of the date of this letter". As such, I believe and am advised that, even if it is true (and this is not admitted absent any proper particularisation and evidential basis) that the Plaintiff actually expended money on a planning consultant during the handful of relevant working days, legal submissions will be advanced on my behalf to the effect that this cannot amount to part performance of a contract for the sale of land.
14. I note, moreover generally, that the Plaintiff's Solicitor's Replying Affidavit fails to exhibit any supporting documents for the Plaintiff's claim at all, having exhibited solely the Notice of Appeal and a Letter of Accounts and Credit stating the Plaintiff's retained earnings at the end of 2022. No documentary evidence has thus been advanced in respect of any alleged loss incurred by the Plaintiff (without prejudice to the Defendant's position, which would be advanced in legal submissions, that same could not entitle the Plaintiff to the relief it seeks) and no detail has been given of same.
15. In the Grounding Affidavit, moreover, I exhibited evidence as to hourly rates for professional planning consultants (in the event that this Honourable Court concludes that it is possible that some residual claim for damages for misrepresentation might remain if the claim concerning an enforceable contract for sale of the Inherited Lands or associated equitable claim to the Inherited Lands is otherwise dismissed) in order to show the very limited extent of the Plaintiff's claim, at its absolute height can only be (if the Plaintiff actually produces evidence of work during the relevant handful of days). The Plaintiff's solicitor in the Plaintiff's Solicitor's Replying Affidavit has not disputed same or otherwise engaged with the proposed quantum advanced by your Deponent of the (alleged, unparticularised) expense".
Discussion - Part Performance
106. I do not accept that the retention of the planning consultant can be regarded as an element of consideration as being for the benefit of both parties. The vendor's sole interest in this contract was securing the purchase price. Of course, if any element of any transaction is conditional then both parties have an interest in its fulfilment to clear the way for the transaction to proceed. However, that does not make the satisfaction of the condition an element of consideration nor does it mean that it benefits the vendor except indirectly by clearing the path for to the deal. The planning permission condition was for the purchaser's benefit and protection. It did not want to pay €1.2 million for the property unless it could use it for its intended purpose. Apart from reflecting normal conveyancing practice in such contexts and the commercial logic of the transaction, the fact that the condition was for the purchaser's benefit (rather than the vendor's) is demonstrated by the fact that the 28 July 2017 letter suggested 18 months to secure planning permission subject to extensions to be granted by the vendors [7]. Such a condition for the benefit of only one party could of course be waived by that party.
107. My previous judgment noted that many factual and legal issues could only be finally determined at trial after oral evidence and cross examination, concluding that:
"Testimony would also be required at trial from the planning consultants as to when they were retained, on what basis, and as to what expense had actually been incurred by the Plaintiff prior to the Defendant's confirmation that the sale by tender was proceeding".
If the Plaintiff had pleaded a case with any meaningful particulars which identified arguable acts of part performance referable to the alleged contract which would suffice to invoke the doctrine, then the merits of any such plea would need to be determined at plenary action. However, the Plaintiff has not done so. It has not provided particulars in respect of the points noted in the above passage. The amended pleadings and the affidavits still fail to explain what planning consultancy costs were incurred and when. This omission is surprising in view of:
· the Defendant's repeated reference to the issue in: (a) its requests for particulars of the original Statement of Claim; (b) its application for discovery; (c) submissions and affidavits in the course of the injunction application
· my previous judgment noting the lack of particulars in respect of the retention of the planning consultant.
· The Court of Appeal's findings on the issue.
· The Defendants' affidavits on this application repeatedly putting this matter in issue and highlighting the precise information which the Plaintiff had repeatedly failed to, provide.
I am entitled to draw inferences from the Plaintiff's reluctance to furnish relevant evidence or particulars (which contrasts with the prolixity of its evidence and pleadings on issues which, as the Court of Appeal has noted, are clearly not relevant).
108. Although para. 12 of the Plaintiff's managing director's affidavit grounding the injunction application stated that as a result of the 11 April 2023 offer the Plaintiff "got a planning consultant and passed on other opportunities" the evidence on the various applications and the plaintiff's concessions in the Court of Appeal have not provided any support for the contention that there were any opportunities foregone during the period between acceptance of the alleged offer and its alleged repudiation or any detail regarding the retention of the consultant.
109. Moreover, it appears from the Plaintiff's solicitor's affidavit grounding the application to amend the Statement of Claim that the Plaintiff retained the planning consultant before it "accepted" the "offer" (which would be consistent with the solicitor's acceptance letter). However, as the Court of Appeal has noted, only acts which occurred after acceptance could be relied upon as acts of part performance. Past acts are irrelevant.
110. To the extent that the Plaintiff now asserts that a consultant was retained (and that significant costs were incurred) after "acceptance", then it seems to be contradicting what its solicitor said in the "acceptance" letter, the letter which underpins its claim that there was a concluded agreement. The affidavit grounding the application to amend should have explained the basis on which the Plaintiff now seems to contradict its solicitor's "acceptance" letter. The Plaintiff's solicitor's recent affidavits also ignored the apparent contradiction with his "acceptance" letter. Nor did the managing director address the point in his two affidavits of verification. If the Plaintiff wished the Court to credit such a change of position, the affidavits should have explained the inconsistency and, most importantly, the draft pleadings should have particularised the circumstances of the planning consultant's retention and explained the quantum of costs actually incurred. The Plaintiff's silence speaks volumes.
111. The amendments do not address the issues identified by Costello P and in my own previous judgment. No meaningful particulars have been advanced regarding acts of part performance during the relevant window. It is striking that the amendments repeatedly emphasise that particular alleged acts of part performance predated the "repudiation" but studiously avoid saying whether they post-dated the formation of the "agreement". There is no visibility as to what actually occurred, or when. There is no clarity as to whether such alleged acts occurred in the window after "acceptance". The amendments assert that the retention of the consultant predated "repudiation" while avoiding the key issue - whether they postdated "acceptance" of the "offer" and the creation of the alleged contract in the first place. Ambiguous temporal references to the alleged acts of part performance appear on several occasions in the amended pleadings. The Plaintiff is consistently cryptic as to when such acts allegedly occurred. For example, paras. 30 and 31 and para. 5 of the amended prayer for relief refer to acts of part performance and stress that they occurred prior to repudiation. Strangely, in view of the way the issue had been previously raised in submissions in the injunction application and in the notices for particulars and in the Court of Appeal judgment, none of those references explain whether the alleged acts occurred after the "offer" was "accepted". The closest the Plaintiff comes to addressing that issue is para. 32 which states:
"(The Plaintiff retained at an economic cost a Planning Consultant in order to part-execute the Agreement for Sale offered by the Defendant and accepted by the Plaintiff.) and this retention cost and/or the requirement to pay it was incurred prior to the 25 April 2023 date of attempt by the Defendant to purport to withdraw from the Agreement to Sell the Lands the subject of the within dispute to the Plaintiff and expenses in relation to same accrued both before and after the 20 April date of Registered Letter of Acceptance)"
The difficulty with that new formulation is that it again conflates acts which occurred before the alleged "agreement" with those allegedly occurring during the narrow contractual window, despite the Court of Appeal ruling that reliance on the former was "illogical and legally unsound". The reference to the latter is undermined by the absence of meaningful particulars - it appears that it must be a reference to the retention of the planning consultant but no details are proffered as to exactly when and on what basis and at what cost the consultant was retained. The Plaintiff is remarkably coy about such details. I am not inclined to place weight on that plea in view of the failure to provide particulars and the opacity of all the other references throughout the amendments .
112. The only plausible inference from the Plaintiff's failure to provide meaningful particulars is that such particulars would not assist its case. Certainly, there was no attempt by the Plaintiff in its four affidavits or in its oral or written submissions to identify any specifics of the alleged acts of part performance or to respond to the issues identified at para 80 of my previous judgment which concluded that the Plaintiff had not adduced meaningful evidence of part performance:
"The only act which the Plaintiff can claim to have taken in reliance after the supposed oral agreement was to appoint a planning consultant. There was no evidence of any material effort or expense in that regard. No letter of engagement or invoice was exhibited".
113. The amendments do not address the points identified in that passage or, indeed, the infirmities identified by Costello P. The following points emerge from the amendments:
a. They still seek to rely on acts of part performance predating the acceptance despite the finding that this is "both illogical and legally unsound".
b. Despite the obfuscation in the pleadings, the retention of a planning consultant remains the only alleged act of part performance identified by the Plaintiff which might have postdated the acceptance of the 11 April 2023 "offer" - but even there the Plaintiff's position is undermined by the acceptance letter's confirmation that the consultant had already been retained.
c. The amendments allege that the Plaintiff retained the Planning Consultant "at expense" and that the expense which was "paid and/or became due and owing ... and became incurred" prior to the Defendant's "repudiation". It portrays the retention of the consultant as "an economic cost" and says that:
"that single crucial element of consideration and/ or part performance confers enforceability upon the April 2023 Agreement and succeeded in doing so before the Defendant sought to withdraw from the Contract ...".
d. In support of this proposition, the amendments contend that planning permission was a requirement of the [2017] Agreement and the April 2023 Agreement
"which benefited both Parties in supporting the agreed Sale Price and was an element of the Offer made to the Plaintiff by the Defendant and which was accepted by the Plaintiff.").
e. The amended prayer for reliefs assert facts which go beyond the amended pleadings, seeking declarations that the cost of the consultant "was incurred and/ or increased" after the letter of acceptance and that:
"the expense of the hiring the Planning Consultant for preparation of planning permission works for use by both the Plaintiff and the Defendant in the April 2023 Agreement, works undertaken within days of the 11 April 2023 Agreement and undertaken prior to the 25/27 April 2023 date of purported withdrawal from Contract for Purchase of the Sale Lands) constitute consideration of economic value rendering the offer made 11 April 2023 and accepted in writing 20 April 2023 (and/or the Offer made in writing 28 Julv 2019 as amended and/ or made 11 April 2023 and accepted in writing on 20 April 2023) an enforceable contract;"
f. Other reliefs were in similar terms, seeking declarations that the consultant's retention:
"to meet the planning requirement of the 28 Julv [2017] Terms of Agreement (as amended 11 April 2023) and/or the 11 April 2023 Agreement ... constitutes valuable consideration and/ or consideration of economic value which was received by the Defendant in that it went to the benefit of the Defendant in obtaining planning permission for the lands the subject of agreement, thus rendering the April 2023 Agreement enforceable;)
...
5. A Declaration that the Plaintiff retained at an economic cost a Planning Consultant in order to part-execute the Agreement ...
6. A Declaration that the Plaintiff retained at an economic cost a Planning Consultant in reliance upon the clear unambiguous representation made by the Defendant that the Lands would be sold to the Plaintiff at the indicated price ..."
114. Despite the issue having been repeatedly canvassed in affidavits, submissions, applications for discovery and in notices for particulars and, indeed, in both judgments, the amended pleadings still fail to disclose meaningful details of any act of part performance within the contract "window":
a. The Plaintiff says that a consultant was retained at an "economic cost" but fails to disclose the figure.
b. Although Costello P described the consultant as "unidentified", the Plaintiff has still not identified the anonymous consultant.
c. Nor is there an affidavit from the planning consultant confirming when they were retained and what work was done or costs incurred during the brief window in issue in these proceedings.
d. Nor have any emails or other communications with any such consultant have been disclosed, nor any letters of engagement, estimates or invoices.
e. The Defendant had exhibited details of the cost of retaining the services of planning consultants and the Plaintiff had not disputed those figures which suggested that the hourly rates range from €70 for an assistant planner, €90 for a senior planner or €110 for an associate director and €160 for a managing director. Accordingly, given the narrowness of the window [8] between "acceptance" and "repudiation" it is difficult to see how any cost could have been incurred by the plaintiff which could be regarded as material in the context of an alleged agreement to sell property worth €1.2 million according to the Plaintiff.
115. The paucity of the pleading is particularly concerning as a result of the Plaintiff's persistent failure to engage with the Defendant's previous enquiries in respect of the issue through notices for particulars and discovery requests, not to mention the direct challenge posed in respect of the issue in both of the Defendant's recent affidavits, challenges to which the Plaintiff did not effectively respond other than by saying that these were matters for trial. Its omerta is striking since it should have had the information to hand given that its solicitor's 22 May 2024 affidavit on the Defendant's discovery application confirmed to the Court that it was being collated. However, and contrary to its solicitor's commitment to do so by that date, the Plaintiff has still not been discovered such documents.
116. The Plaintiff's reticence appears all the more stark in view of the specificity and effusiveness of its pleading on irrelevant issues such as alleged expenditure years before any alleged agreement. It is striking that the voluminous exhibits IP3 and IP4 to the affidavit grounding the injunction application comprised 65 pages of documentation evidencing alleged reports which the plaintiff had commissioned, presumably at some expense, on the basis of the historic discussion rather than the 2023 discussions. Those documents predate even the 2017 discussions having been produced in 2015 and 2016. Accordingly, the plaintiff has exhibited 65 pages of documentation in respect of historic expenditure which was clearly not on foot of any concluded agreement, evidence which was, to quote Costello P, "illogical and legally unsound", but it has not produced a single document evidencing actual expenditure or detriment contemporaneous with the narrow window between "acceptance" and "repudiation". The absence of such documentation on discovery, or in replies to particulars, or on any of the applications in which this issue has been repeatedly ventilated means that the Plaintiff has failed to advance any case in respect of this issue other than vague and inadequate assertions.
117. In submissions, the Plaintiff suggested that the Defendant could have sought particulars of the part performance issue and could still do so. This raises several issues:
a. Firstly, I am surprised at the suggestion that the Defendant should have been expected to serve a notice for particulars in respect of a draft pleading.
b. Secondly, the Plaintiff did not furnish meaningful responses to previous requests for particulars of this issue so the utility of a further request is not obvious.
c. Thirdly, the Plaintiff is not only seeking to amend, but also to rely on the amendments to stave off a dismissal application. It is incumbent on any party in that position to volunteer all necessary particulars to demonstrate the factual basis for a plea. Only one party bears responsibility for the failure to place such information before the Court and it is not the Defendant.
118. I do not consider that the amendments improve the Plaintiff's position because of: (a) the unexplained inconsistency between the acceptance letter and the amendments; (b) the failure to provide meaningful particulars in respect of the issues identified in the previous judgments and the Defendant's notices for particulars; and (c) the failure of the four recent affidavits sworn by the Plaintiff's solicitor and managing director to explain the contradiction and to provide particulars. Any claim based on part performance is bound to fail in the circumstances, with or without the amendments.
119. I am entitled to draw an inference from the Plaintiff's failure to respond to the defendant's repeated challenged in relation to the lack of detail with regard to the alleged engagement of the planning consultant (such as their name, the date and terms of the engagement, the specific tasks they was asked to perform on particular dates, and the cost (if any) incurred by the Plaintiff during the relevant period. No document was exhibited, and no detail was provided. In the absence of such detail the Plaintiff's plea is no more than an assertion, as in Keohane.
120. The Plaintiff's persistent failure to disclose the factual basis for its claim to have suffered detriment in respect of the retention of a planning consultant, notwithstanding the issue being repeatedly raised on affidavit and in submissions and in the High Court and Court of Appeal decisions means that there is no reasonable basis to contend that it has suffered any significant detriment during the relevant period. If any such expense had actually been incurred during the very short window on which the Plaintiff may be entitled to rely, then full particulars would doubtless have been disclosed. Given the narrowness of the window between "acceptance" and "repudiation" and the paucity of the Plaintiff's pleadings and averments together with the terms of its own solicitor's "acceptance" letter, I am not convinced that the Plaintiff can possibly have been put to material expense or to any material expense in reliance on the alleged April 2023 agreement.
121. Although, fundamentally, I consider that the Plaintiff's central premise that it acted to its detriment in reliance on the alleged April 2023 agreement is bound to fail, I will address some additional points in respect of this issue for the sake of completeness:
a. The amended pleadings conflate and confuse consideration and part performance. These are separate concepts, one a creature of law, the other of equity. Consideration may or may not suffice to constitute an act of part performance. For contractual purposes, consideration is an essential prerequisite to a binding contract at common law but there is no necessity that it be significant, proportionate or meaningful - the proverbial "peppercorn rental" is sufficient. However, different considerations arise when the court is asked to exercise its equitable jurisdiction, particularly if the effect of such relief would be to deprive the defendant of ancient statutory protections upon which he was otherwise entitled to rely. In such cases, a peppercorn would not render it unconscionable for a defendant to withdraw from a bargain. Accordingly, it is not enough for the plaintiff to refer vaguely to "an economic cost". I do not agree with the submissions by Counsel for the Plaintiff that, although any expenditure on the planning consultant was likely to have been de minimis, such de minimis expenditure would suffice. It seems to me that even if the Defendant had unconscionably induced de minimis expenditure, the appropriate remedy would be a claim reimbursement of the costs incurred during the contractual window (which would be a District Court Claim) but a Court would be unlikely to order specific performance of the "agreement" on the basis of de minimis acts. In the cases cited to me specific performance was not awarded on the basis of de minimis expenditure or detriment.
b. I consider that, as a matter of principle, the detriment suffered by the Plaintiff would need to be significant to give rise to an estoppel. An estoppel arises if it would be unconscionable for the Defendant to resile from the "agreement" when the Plaintiff has acted to its detriment. This necessarily requires both a qualitative and quantitative assessment. Any genuine factual dispute in that regard would have required plenary hearing. However, the plaintiff has consistently failed to disclose any cost incurred during the crucial window. Beyond generalised references, such as to "economic costs", the amended pleading does not advance matters. The absence of such evidence on this application and the plaintiff's cryptic responses to notices for particulars and its failure to make discovery as promised satisfies me that Costello P's conclusions on this issue are not affected by the amendments. The Plaintiff has not contested the Defendant's cost evidence. I do not accept that the Plaintiff suffered any material detriment during the post acceptance period which could constitute an arguable act of part performance. At most it can only have involved de minimis (to use the phrase volunteered by its counsel in submissions) inconvenience or expense which must be deemed inconsequential in the context of the proposed transaction and the interests involved (unlike the facts of the cases where the doctrine has been applied). Accordingly, I do not accept that the engagement of a planning consultant for a few days would have been a sufficiently substantial economic cost or that it could amount to unconscionable conduct to overcome s.51. The claim for specific performance must fail on that ground alone.
c. While, as Murphy J observed in McCarron v McCarron (unreported, Supreme Court, 13 February 1997) at p 10, each case must be examined on its own facts, the circumstances deemed to constitute sufficient acts of part performance in reported cases are quantitively and qualitatively different to the present case. For example:
i. The entry upon and demolition of the Defendant's premises was 'an unequivocal act of part performance which takes the case out of the statute' in Starling Securities v Woods (unreported, 24 May 1977), HC.
ii. Likewise, the Purchaser's moving into possession for a prolonged period and incurring expense mproving the building, with the vendor's consent, sufficed in WP McCarter & Co v Roughan [1986] ILRM 447.
iii. Taking possession and paying rent for a prolonged period was also deemed part performance of a contract in Lanyon v Martin (1884) 13 LR Ir 297
iv. Entering into possession with the Defendant's agreement or acquiescence also sufficed in Stevens' Hospital v Dyas (1864) 15 Ir Ch R 40
v. In Ace Autobody, going into occupation and possession and furthermore, taking on the obligations of a tenant and accepting the transfer of the employees on the premises were sufficient acts of part performance.
d. I accept the Defendant's submission that the facts of this case are very different to the cases where specific performance was granted on the basis of identifiable and recognised acts of part performance, such as Gannon, where the plaintiff entered into a lease of a property, actually performing on foot of the inchoate contact, and in circumstances where
"the defendant not merely induced and acquiesced in but actively participated in the performance of the aspect of the contract by the plaintiff which the plaintiff performed"
e. The facts also contrast with those of Ace Autobody where the Plaintiff went into occupation and also took on the obligations of a tenant and effected the transfer of staff on the premises pursuant to the European Communities (Protection of Employees on Transfer Undertakings) Regulations.
f. Applying Mackie:
i. There is no basis to contend that the Plaintiff acted in such a way as to perform the alleged contract after it was made.
ii. Furthermore, I also accept the Defendant's submission that the (alleged) engagement of a planning consultant for days (if at all) was a unilateral act by the Plaintiff and- even on the Plaintiff's own pleaded and evidential case - does not "relate to and affect land" as described in Mackie;
iii. I also agree even on the Plaintiff's case, the Defendant cannot be said to have induced or acquiesced in the engagement of the planning consultant since, on the Plaintiff's own case, the Plaintiff's communication of the engagement was only contained in the acceptance letter, received by the Defendant on 24 April 2023 which led to the telephone call (to "renege") on 25 April 2023.
122. The essence of the Plaintiff's estoppel claim seemed to be rooted on the alleged past expenditure rather than the retention of the planning consultant which was the only potential detriment which appeared even potentially relevant. Once that became the focus of the enquiry it was clear that, even if the Plaintiff did retain a planning consultant for a very brief period following "acceptance" and before "repudiation" there was no reason to suggest that any material costs would have been occurred. For the Defendant to rely on s.51 in those circumstances could not be described as unconscionable. He would not be using the statute as an engine of fraud.
123. I also accept the Defendant's submissions that :
a. there is no allegation or evidence that the plaintiff expended money on the property in reliance on the alleged 11 April 2023 assurance. As explained by Lord Kingsdown in Ramsden v. Dyson (1866) LR 1 HL 129 at pp. 170 to 171, the party relying upon the verbal representation must "lay out money upon the land", which the Plaintiff did not.
b. the alleged engagement of a planning consultant was an act personal to the Plaintiff; and, in the absence of expenditure on the property requested or encouraged by the Defendant at the relevant time the Plaintiff has no sustainable claim for an interest in the Property pursuant to an estoppel (see: Haughan v. Rutledge [1988] IR 295).
124. This case is fundamentally different to those in which the doctrine of part performance has been applied. In those cases, the plaintiff had generally taken possession for an extended period or undertaken other significant acts to its detriment with the defendant's permission, generally over an extended period. None of those factors are present in this case. The period involved was minimal, the acts insignificant - "de minimis" was the characterisation volunteered by the Plaintiff's counsel in oral submissions. Furthermore, there is no evidence that, during or following the conclusion of the "contract", the defendant acquiesced in the plaintiff immediately retaining a planning consultant. He did not learn about it until after the consultant had been retained because the acceptance letter (referring to the consultant as having already been retained) was only received on 24 April 2023, the day before the "agreement" was "repudiated". The (controversial) evidence as to the defendant having acquiesced in previous alleged expenditure by the plaintiff over the years is irrelevant in this regard. The crucial point is whether, when the parties allegedly concluded a contract in April 2023, they mutually envisaged that a planning consultant would be immediately retained and would immediately start work. The pleadings and affidavits do not support such a contention.
125. For the avoidance of doubt, while any determination in this regard would be a matter for trial, if the retention of the planning consultant was strategic, to ground a plea of part performance and lock the Defendant into his oral agreement, then that would not in my view constitute a valid act of part performance. Such a strategic act would not entitle the Plaintiff to seek the Court's invocation of its equitable jurisdiction because it would not be unconscionable for the Defendant to decline to proceed in the circumstances. Equity is not intended to be used to create a technical trap to deprive parties of an statutory protections and to allow such tactics would be to incentivise the very mischiefs which the Statute of Frauds was intended to prevent.
126. In any event, the retention of the consultant, even if it happened during the contractual window, is too ephemeral and insubstantial. The pleadings and evidence do not suggest it was done with the defendant's knowledge or consent. The plaintiff never entered into possession. The retention of the planning consultant for less than 48 hours could not conceivably make it unconscionable for the defendant to decline to proceed with the sale of a valuable property.
Issue (e) - the implications of the co-owners' interest
127. As I have noted, although the issue is disputed, I will assume that the Defendant wrongly represented to the Plaintiff that he was the sole owner. Paragraph 3 of the amended Statement of Claim identifies the property and states that the defendant inherited it some time ago. This plea has not been updated to reflect facts confirmed (and conceded) in the injunction application. Although the Plaintiff may originally have been under a misapprehension, it has been established that the Defendant is only one of six co-owners so it is surprising that the pleadings do not reflect that fact.
128. The co-owners are still not co-defendants. Nearly two years ago, the Plaintiff's solicitors declared their client's intention of joining them as co-defendants. Its solicitors wrote to the Defendant's solicitors in July 2023 confirming that the Plaintiff had instructed them to join the co-owners as co-defendants and seeking the Defendant's and the Co-Owners' consent and asking if the solicitors would be representing the latter as well as the Defendant. The Defendant replied by letter dated 10 July 2023, refuting the Plaintiff's contentions and insisting that the Plaintiff knew of the co-owners' interests in the land. The Defendant's solicitors requested a copy of the motion and grounding affidavit to enable them to take instructions. It is not evident from the documents before me that the Plaintiff's solicitors ever responded to this reasonable request. In any event, although the Plaintiff's counsel acknowledged at the hearing of this application that papers were drafted with a view to joining the co-owners, the application was not pursued by the Plaintiff. This creates difficulties for the amended pleas.
129. In response to the original plea, Costello P concluded that:
"13. It is accepted by the appellant that the respondent is not the owner of the lands: he is one of six tenants in common. The appellant has not sued the other co-owners. While it has threatened to join them as parties to the proceedings for the purpose of obtaining an order for specific performance against them, 18 months after commencing this action it has failed to do so. In the course of oral submissions, senior counsel for the appellant accepted that they were "innocent" parties in this saga, and implicitly, that the appellant had no case against them. Specifically, it was never suggested that they gave the respondent authority to conclude a contract on their behalf. In effect, the appellant is seeking an order for specific performance for the sale of the entire of the land against a party who is a one-sixth owner, while accepting that it has no case against the owners of the remaining five-sixths of the property.
14. In those circumstances, I cannot accept that at trial the appellant could obtain an order for specific performance against the respondent. He would be unable to transfer the land to the appellant unless the other co-owners joined in. I can see no basis upon which a court would order non-parties against whom no wrongdoing was alleged to convey their interests in those circumstances: in effect, it would amount to an order of compulsory purchase against the five individual co-owners of land in favour of the appellant. It follows, in my judgement, that the appellant has not made out an arguable case that it would obtain a permanent injunction at trial. Any such order would unjustifiably interfere with the property rights of the five individual co-owners who are not parties to these proceedings and whom the appellant accepts are "innocent" in the events the subject of these proceedings. ... In my judgement, this alone suffices to dispose of this appeal. Second, the contract between the appellant and the respondent (assuming that it will be established at trial) is, even on the appellant's case, unenforceable. The respondent is one of six co-owners. It follows that the respondent, alone, cannot sell the lands, and it was never suggested that he had the authority of the co-owners to sell their interests also. Accordingly, whatever remedy may be available to the appellant if it succeeds at trial, it cannot include an order for specific performance..."
130. In response to those findings, the amended Statement of Claim pleads as follows:
"37. The Defendant was plainly acting in the Sale for his own property (the whole or part of "the Sale Lands") and/or as authorised Agent for the Sale Lands (in whole and/ or in part) and the Plaintiff is entitled to rely on his Agency for an Admitted and/ or Secret Principal. The Plaintiff reserves his right to elect to enforce a contract for sale over any part of the Sale Lands not owned by the Defendant by virtue of the Doctrine of Agency and brings these proceeding to enforce a Contract for Sale over the Sale Lands owned by the Defendant.
131. The relevant amended reliefs sought by the Plaintiff were as follows
"8. ... a Declaration that the Owners ...made an enforceable agreement over the Sale Lands, including by virtue of the doctrine of Representation by Omission and/or Secret Principal of an Agent, particularly in circumstances where the Owner of the Lands attended a Meeting in and about 2016 and represented and/ or did not differ from the view expressed at that Meeting that the Defendant had authority to deal in the Sale Land.)
9. The Plaintiff argues that is normal for an elderly member of a family to be accompanied by a junior family member to a business meeting: and that it does not in any fashion follow that such attendance indicates or discloses ownership by a third-party family member or family members of any part of the Sale Lands. The Plaintiff argues that is that is normal for an Irish family to pay attention to what happens with lands of their farmer father and that very commonly it happens that land owned exclusively and fully by a parent is leased to a child and then sub-leased at a commercial rate by the child or by the child jointly with the parent (for various tax and income gifting reasons) and that presence of children's names on a tendered lease is no way indicative or dispositive that the superior fee-simply titleholder is not exclusively their farmer father.
10. The Plaintiff argues that in a million-euro-scale transaction someone is the owner of land they should say so and would normally say so and that in any case where children of the Defendant are owner and/ or trustee of any part of the Sale Lands then the Defendant is Agent for the Secret Principal(s) and is capable of binding the Secret Principal(s) on disclosure of his Agencv status in negotiations prior to Offer. If any case of any part of the Sale Lands are held on trust for a Third Party Child of the Defendant and/ or owned by a child of the Defendant, the Defendant and/ or the Defendant and his children have materially misrepresented by silence in permitting to issue solicitor correspondence (subject to contract or otherwise in the Defendant's name only) and the Defendant is accordingly estopped from denying authority to deal in the lands the subject of the within dispute."
132. Although the amendments assert that the Defendant was the co-owners' agent and that he (or they) might be estopped from denying his authority, there is still no basis for the Plaintiff to advance a cause of action against the co-owners or to seek reliefs against them since they are not party to the proceedings. The impossibility of seeking reliefs against non-parties was referenced in the previous judgments. The amendments do not change the position since the co-owners are still not parties. Accordingly, many amended pleas and reliefs in respect of this issue remain unsustainable.
133. Taking the claim against the Defendant at its height, if the Plaintiff succeeded in showing that the Defendant had resiled from a contract, having represented himself as the sole owner, such a result could not affect the co-owners' majority interest in the land. Even if it succeeded, the Plaintiff's claim would in practice only sound in damages against the Defendant. Accordingly, most of the Plaintiff's pleas and prayers for relief in respect of this issue are bound to fail. However, it is theoretically possible that the Plaintiff could recover damages against the Defendant if he had concluded an enforceable contract by falsely representing (by words or conduct) to the Plaintiff that he was the owner or that he had the owners' authority.
134. However, there is no suggestion in the evidence that the Plaintiff would have withdrawn from the negotiations if it had understood the true position as to the ownership and it seems implausible that it would have done so. In the circumstances, even if the Plaintiff was misled, I cannot see that it would have suffered a loss in the absence of a legally enforceable contract having been concluded on the basis of such a misrepresentation. On the basis of all the pleadings and affidavits in the proceedings, I do not see that the Plaintiff would have any damages claim against the Defendant even if he had falsely held himself out as the owner of the land unless he entered into a contract for the sale of the land which would otherwise have been enforceable (i.e. it was sufficiently certain and duly evidenced in writing or the doctrine of part performance had been engaged). If no such enforceable contract had been entered into, then the Plaintiff would have suffered no loss whether the Plaintiff was the sole owner or not.
135. But for my conclusions on other issues, some of the Plaintiff's pleas on this issue could need to be resolved at plenary hearing insofar as they concerned a damages claim against the Defendant (although large parts of the indorsement of claim and the amended Statement of Claim would still need to be struck out). However, my conclusions in respect of: (a) s.51, (b) the absence of a concluded agreement; and (c) the absence a sufficient act of part performance mean that there is no enforceable agreement in any event and the Plaintiff has suffered no loss, so this aspect of the claim is also bound to fail.
Issue (f) Alleged Commitment to Exclusivity
136. As its submissions note, the Plaintiff seeks:
"A declaration that Proprietary Estoppel arises in favour of the Plaintiff on account of clear and unambiguous representations made from the Defendant that any sale of the Property would be exclusively to the Plaintiff".
137. The Defendant correctly argued that the Plaintiff was conflating the claim to an interest in the property based on an enforceable oral contract with the Defendant's alleged past representations constituting an open-ended "exclusive dealing" arrangement between the parties. Features of the latter arrangement as alleged by the Plaintiff included: (a) no time limits; (b) no consideration received the Defendant; (c) no price; (d) no mechanism for determining price; (e) no mechanism for agreeing commercial or conditional terms; (f) no guarantee that a formal agreement would ever emerge.
138. As far as this aspect of the claim was concerned, the Plaintiff alleged that the Defendant was in breach of a repeated commitment to deal exclusively with it in respect of the sale of the land. It says that over the years (and again in 2022/2023) the Defendant committed to negotiate exclusively with the Plaintiff, but the Defendant denies doing so and says that he made clear during his 2023 engagement with the Plaintiff that he intended to sell by tender. The Defendant conceded that the true factual position in that regard could only be resolved at hearing but submitted that there was no suggestion of any consideration for the alleged exclusivity nor any legally binding commitment.
139. The original and amended Statement of Claim and the Plaintiff's affidavits throughout these proceedings, contain many verbose, confused and conflated assertions. Their gist was that over the years and again in 2022/2023: (a) the Defendant repeatedly indicated to the Plaintiff that he would not negotiate with other parties and he encouraged the Plaintiff to continue the negotiations notwithstanding delays on the Defendant's part for various legal, property and family reasons and (b) the Plaintiff did continue to engage and spent substantial sums and forbore to pursue alternative opportunities all in reliance on such assurances. However, there is no suggestion that any agreement was concluded that the Plaintiff would sell at a particular price (other than by virtue of the alleged acceptance of the alleged 11 April 2023 offer). There is nothing which could form the basis for a concluded agreement. To the contrary, it is clear that the parties continued to negotiate over the years as to: (a) what lands might be included; (b) whether they would be leased or sold; (c) whether the farmhouse would be sold; (d) the price; (e) arrangements for a deposit and planning permission.
140. The position in respect of some of these issues was changing right up to April 2023. Even if the Defendant did give the Plaintiff assurances as alleged, I cannot see any legal consequence in the absence of a concluded agreement. There is no suggestion that the Defendant ever agreed to grant an option to purchase the entire property. The Plaintiff's own case appears to be that the arrangement was open-ended and there is no suggestion of a clear commitment to conclude an agreement
141. By contrast, it is striking that at one point the possibility of an option to purchase was on the table. The proposal did not go anywhere but it appears that if it had progressed it would have involved a formal, clearly defined option with suitable consideration. This can be seen from the 28 July 2027 letter, in which the Defendant's solicitors discussed the possibility of an option to purchase in respect of part of the property. That letter seems to have envisaged the execution of a formal option in line with normal conveyancing practice:
"There is a second element to the transaction, the lands outlined in blue comprise approximately 11 acres which your client will be granted an Option to purchase same for a further €600,000. Again, this is subject to planning permission...".
142. The Plaintiff rejected this proposal. Such an option was never agreed (nor would it have been required if existing exclusivity assurances had been regarded as constituting a binding commitment in respect of the property as a whole). The crucial terms, including as to consideration, which would be required to conclude a legally binding exclusivity agreement were never agreed. Nor was any such agreement documented in accordance with s.51.
143. The current attempt to rely upon an exclusivity agreement is similar to the claim dismissed by Laffoy J in Triatic on the basis that the court could not require parties to agree the terms of a transaction, an observation which would apply with equal force here. The pleadings, affidavits, exhibits and submissions do not establish any legal or factual basis upon which it could be asserted that the defendant was permanently committed to deal exclusively with the defendant or vice versa. Accordingly, in the absence of an express provision to the contrary, even if the defendant had indicated to the plaintiff that he would deal exclusively with it, he was entitled to change his mind.
144. The lengthy amendments to the Statement of Claim do not move the dial on the conclusion reached in respect of this issue in the two previous judgments. No binding exclusivity contract has been alleged nor do the pleadings or affidavits disclose a basis for such a plea. Nor is there any stateable basis for a promissory estoppel on the basis of the amended pleadings. In the absence of a concluded agreement as to exclusivity or otherwise or an option to purchase, the Plaintiff has not advanced a stateable basis for relief even if he did incur expenditure and forgo other opportunities over the years on the basis of an expectation, encouraged by the Defendant, that the Defendant would ultimately sell the property to him. Even if the Defendant did lead the Plaintiff to believe that he would deal exclusively with it, there was no legally enforceable agreement and no obstacle, in law or equity, to the Defendant changing his mind. The amendments do not change that analysis.
145. The Plaintiff presents itself as a substantial and sophisticated corporation. It was legally represented. It was presumably advised by its solicitor over the years that if it wanted to lock the Defendant into dealing with it, it would need to negotiate an option to purchase. It did not do so. Accordingly, the Defendant remained free to deal with other parties. Even on the basis of the facts asserted by the Plaintiff, the Defendant could not have been locked for all time into a commitment to deal exclusively with the Plaintiff since they it had not agreed the parameters of the property which were to be sold, or the price, or other conditions.
146. Even if, contrary to my conclusion above, there had been a binding commitment, any such commitment could not be open ended. There is no obvious basis to expect that reasonable notice in such circumstances would exceed three months - I suspect that one month's notice would be regarded as adequate if notice was required at all. However, my own view is that no notice was required. The plaintiff's poorly particularised claims of forbearance and expenditure do not alter that conclusion. In particular, the Plaintiff's claim on this point must fail by virtue of the reasons identified by Laffoy J in Triatic - the agreement alleged was essentially an agreement to continue negotiations but that any such agreement was unenforceable for lack of certainty.
147. Furthermore, there is no allegation in this case that the defendant committed to exclusivity either on a permanent basis or for a fixed period. Accordingly, it was always open to the defendant to notify the plaintiff at any time (or certainly on reasonable notice) that it was no longer dealing with it exclusively or at all. Nor is there any basis to contend that the Plaintiff suffered any loss in the absence of such notice. I do not see any basis upon which the plaintiff can contend that it has suffered any loss as a result of the defendant's actions because, as Lord Ackner observed in Walford, such an exclusivity commitment would not give rise to an obligation to sell to the plaintiff.
148. Furthermore, it was open to the plaintiff to participate in any tender process. In fact, the tender process has not yet proceeded, a further reason the plaintiff has not suffered any loss even if, contrary to the view which I have reached, it should have been given notice of the development.
149. In summary, even if the defendant did indeed tell the plaintiff he would negotiate solely with it, it was always open to him to change his mind unless and until there was concluded agreement or a binding option to purchase or similar document with certainty of terms and consideration. None of those elements are met. The situation is similar to Triatic and I agree with Laffoy J's conclusions, particularly those at paras 85 & 86. Even if the Defendant promised that the Plaintiff would have the exclusive right to negotiate the purchase of the land for a period and even if that period was ill defined or was extended from time to time, such commitments are not open to the interpretation that the defendant was promising that it would continue to deal with the plaintiff indefinitely irrespective of the defendant's assessment of any offer made by the Plaintiff. On the evidence, the Defendant and his co-owners apparently concluded that they would get a better price selling by tender. There is no basis to suggest that any representation was made, or promise given, by the defendant that he would continue to deal exclusively with the plaintiff until both sides came to an agreement. Such a commitment would make no sense. Nor will the Courts enforce an agreement to agree.
150. In Triatic the emphasis was on the fact that the case was with a public body and therefore the plaintiff was seeking to establish the case based on legitimate expectation. In this case, the plaintiff relies on the principles of equity and promissory estoppel to essentially make the same arguments, but the reasoning of Laffoy J remains equally applicable. The claims advanced on foot of the alleged exclusivity commitment are bound to fail.
Issue (g) - is claim bound to fail in its entirety?
151. My conclusions that there was no concluded agreement in April 2023, nor a note or memorandum as required by s. 51, nor any act of part performance, nor any enforceable exclusivity agreement strike at the central premises for the claim. However, I have reflected on whether any parts of the claim might succeed, in which event it would be necessary for me to determine whether they should be remitted to the District or Circuit Courts. It seems to me that the only aspect of the claim articulated in the amended pleadings which might survive my conclusions above is the claim that the Defendant misrepresented himself to be the sole owner. I summarised the legal principles applicable to a claim based on misrepresentation or estoppel at paras. 27 and 28 of my previous judgment and the Plaintiff did not take issue with that analysis, which I accordingly need not repeat here.
152. While such a claim is stateable in principle, it is difficult to see what loss the Plaintiff could allege as a result of the alleged misrepresentations. It would presumably have been just as keen to acquire the land irrespective of the position as to its sole or joint ownership. The complication as to ownership impacted the reliefs that the Plaintiff could seek in this litigation but there is no suggestion that the Plaintiff acted differently as a result of its allegedly being misled as to the ownership position. Furthermore, and crucially, the failure of the Plaintiff's attempt to acquire the land was ultimately not due to the co-ownership position but to the absence of a concluded agreement, the absence of a note or memorandum which would satisfy the requirements of s.51 and the absence of any act of part performance in reliance on any concluded agreement. Accordingly, I can not identify any basis in the pleadings to conclude that the Plaintiff sustained any loss arising from the alleged misrepresentation even if the Defendant did mislead the Plaintiff as to the ownership position.
Amendments
153. I asked counsel whether I should offer the Plaintiff a further opportunity to amend its case and whether any such amendments could be advanced. Without advancing specific proposals, and emphasising that he had no instructions, he suggested that perhaps the Plaintiff could put a time on the exclusivity agreement, would need to particularise the loss from breach of missed opportunities, the details of the retention of the planning consultant. They were the only changes he envisaged, but, at his solicitor's suggestion he also suggested that the Plaintiff would need to join the other members of the family (and counsel noted that such a motion had been drafted but it wasn't pursued).
154. However, all those issues have been flagged for a considerable period and I agree with the Defendant's submission that the Plaintiff has had multiple opportunities to make a coherent case in respect of past performance and other issues if the facts afforded it a basis to do so. All the information was in Plaintiff's knowledge, and it persistently and apparently deliberately withheld it. It is not entitled to resile from such a deliberate choice without good reason. There is no basis to grant it further indulgence when it has already had ample opportunity to mend its hand. It was incumbent upon the Plaintiff to fully plead the nature, extent, amount and timing of the detriment allegedly suffered in reliance on the defendant. It has spurned opportunities to do so.
155. I also note that in considering any request for amendments the Court is entitled to some explanation for the need for such amendments. No meaningful explanation was offered in this case for the failure to advance the current amendments. While I would have disregarded that omission in view of the Defendant's consent to the particular amendments if I had thought that they could save the claim, I would still consider that a satisfactory explanation would be required to justify any further changes and I am not aware of the basis for any such application or explanation, particularly in view of the Plaintiff's failure to respond in respect of these crucial issues in the proceedings to date.
Observations on the plaintiffs amended Statement of Claim and affidavits
156. While it is not my function to undertake a "blue pencil" exercise to correct the Plaintiffs pleadings, the Defendant's submissions justifiably criticised the Plaintiff's Statement of Claim and amended Statement of Claim including the failure of the amended Statement of Claim to correct errors in the original pleading such as the irregular numbering and the non-chronological presentation of pleas. They noted that the amended Statement of Claim did not appear to have been settled by either senior or junior counsel, unlike the original Statement of Claim which appeared to have been settled by junior counsel at least (senior counsel's name being shown in parentheses only on the original Statement of Claim, which might suggest that it was envisaged that he would settle the pleading but that he may not have done so). Counsel noted the significance [9] of the omission of Counsel settling pleadings in view of the requirements of Order 19 rule 3 RSC and the judgement of Charleton J in National Asset Loan Management Limited v. Barden [2013] 2 IR 28.
157. The Defendant also submitted that:
" (a) certain of the proposed, additional pleas are more in the form of legal argument (purporting to summarise legal argument on behalf of the Defendant in places) or submission as opposed to traditional pleas (see: paragraphs 35, 36, 38, 39, 40, 41, and 42). Indeed, paragraph 40 of the draft amended Statement of Claim includes a reference to caselaw on which the Plaintiff relies; and
(b) the amended Prayer for Relief to the draft amended Statement of Claim curiously includes narrative pleas (as opposed to pleas for relief) at paragraphs 9 and 10. These narrative pleas are, additionally, I believe, forms of irregular pleaded legal argument; and
(c) many of the additional pleas are, frankly, difficult to decipher."
158. I agree. The serious issues with the pleading and draft pleading include:
a. the idiosyncratic numbering "system" in the original Statement of Claim, a system which would not be understood by any student of ordinary level mathematics. The amendments did not correct the defective numbering.
b. Passages in the original Statement of Claim were included twice in identical terms. Once would have been enough. The Plaintiff ignored the Defendant's queries about the duplicated text in its notices for particulars. The duplication was not cured in the amended Statement of Claim.
c. The length of each document was greatly increased by the gratuitous inclusion of irrelevant matters, matters of legal submission and matters of evidence.
d. The Plaintiff's affidavits and pleadings repeatedly conflated events in different time periods in an apparent attempt to bolster the Plaintiff's case as to whether a deal was ever reached and as to acts of forbearance, expenditure, part performance and detriment. Many lengthy and largely irrelevant pleas (which ignored the Plaintiff's admissions as noted at para. 22) confused the issue as to whether there had been any act of part performance of the agreement allegedly based on the 11 April 2023 call. Obfuscation does not enhance a party's case.
e. Paragraphs 6 to 16 of the Statement of Claim comprise a prolix summary of evidence in respect of alleged Previous Discussions referenced at para. 20 above which did not result in a concluded agreement. In view of the admission referenced at para. 22 above, there was no need for these paragraphs in the original Statement of Claim and they should certainly have been largely excised from the amended Statement of Claim. It is unnecessary for a Statement of Claim to regurgitate detailed evidence (whether from an injunction application or otherwise). It should confine itself to relevant facts. Any truly salient points about the Previous Discussion could have been encapsulated in a single, concise, paragraph, shortening the amended Statement of Claim by pages. The inclusion of such verbose paragraphs ignores the obligation on those responsible for drafting pleadings to concisely set out the facts - and only the facts - on which the plaintiff relies, not the underlying evidence. As O'Donnell J observed in Quinn Insurance v PricewaterhouseCoopers [2021] 2 IR 44 "pleadings should contain facts not evidence".
f. Parties who disregard the Rules of the Superior Courts by submitting unnecessarily prolix pleadings may find that such conduct is a factor in the ultimate award of costs of the proceedings in accordance with Sections 168 and 169 of the Legal Services Regulation Act 2015 but that is an issue for another day.
g. The amended Statement of Claim failed to amend or remove paragraphs which were untenable in view of the Court of Appeal's decision.
h. There was a serious inconsistency and lack of precision in the Plaintiff's affidavits throughout these proceedings which
i. sometimes referred to alleged "agreements" having been reached in the course of the "previous discussions" although it appears that the Plaintiff was not making the case that there was any binding agreement save for the alleged April 2023 agreement.
ii. occasionally referred to the 11 April 2023 telephone call as constituting an "agreement" but, far more consistently referred to it as an offer, which was effectively eventually accepted by the 20 April 2023 solicitor's letter.
i. The Plaintiff's lawyer's affidavits' repeated conflation of himself with his client's managing director suggested that affidavits were prepared for one deponent and executed by another without any check to make the elementary modifications required to reflect the ultimate choice of deponent. It is surprising that such errors were not identified and corrected by the Plaintiff's solicitor before he swore his affidavit, or by the Plaintiff's managing director before he verified it, particularly since paras. 61, 82 and 83 of my previous judgment noted similar concerns with an earlier affidavit sworn by the same solicitor. As any lawyer should appreciate, affidavits sworn by a party's solicitor should never conflate the solicitor's own views and knowledge with their client's, or vice versa. As Denham J. observed in Bula Ltd v Tara Mines Ltd (No.6) [2000] 4 IR 412 at para 9 :
"By advising or advocating for a client a [lawyer] does not become 'associated' with the client's cause.".
j. The concern, referenced above, that the amended Statement of Claim wrongly and repeatedly referred to 28 July 2019 heads of agreement when there was no such document and it should have referred to a letter from the Defendant's solicitor date of 28th July 2017, an error which was not rectified in the four affidavits served on the Plaintiffs behalf or in the Plaintiffs written submissions, despite the Defendant repeatedly challenging the references.
159. The Plaintiff and its lawyers were aware of the difficulties with the original Statement of Claim but they failed to engage with those infirmities during the proceedings or in the amendments despite the facts that:
a. The Defendant's notice for particulars drew attention to the numbering issue, referring to the "second paragraph 10" and the "second paragraph 11" and so on. However, the amended Statement of Claim ignored the issue.
b. Paragraph 13 of the Defendant's notice for particulars of the Statement of Claim referenced the Statement of Claim's repetition of passages of text and asked the Plaintiff to confirm, for example, that the matters alleged at paragraph 14 of the Statement of Claim were identical to those pleaded and alleged in the (second) para. 10 of the Statement of Claim. However, the Plaintiff ignored that request, responding to the entirety of the particular request with the mantra that these were "matters for evidence", a response typifying its obstructive responses to reasonable requests for particulars of allegations in the Statement of Claim.
c. The 28 October 2023 defence also referenced the irregular numbering of the Statement of Claim and noted that pleas were not advanced in chronological order.
160. While I am concerned about these matters, I have disregarded them in reaching my determination as to the current application. However, if I had not been minded to dismiss the proceedings, I would still have struck out the Statement of Claim and amended Statement of Claim and required the Plaintiff to file a completely fresh pleading in view of the pervasiveness of the pleading issues which would unnecessarily complicate and confuse the issues in the proceedings. If there had been any basis for the proceedings were to continue then it would have been in the interests of justice to require the Plaintiff to deliver a shorter, coherent, consecutively numbered pleading, strictly confined to the relevant facts but containing all those facts, including meaningful particulars but excluding repetition and conflation of irrelevant matters. This would be on the basis that this was one of the "very rare and clear cases" referred to by Stack J in Christian in which the inherent jurisdiction of the court should be exercised because, in my view, so much of the pleadings, with or without the amendments, constitute an abuse of process rendering the defence of the claim in its current form oppressive for the defendant over and above any difficulties presented by the defence of the proceedings as a whole. However, because I consider that the proceedings should be dismissed that issue does not arise.
161. Furthermore, if the motion had been unsuccessful, I would have concluded that such issues were relevant to my exercise of my discretion as to costs (pursuant to ss.168 and 169 of the Legal Services Regulation Act 2015). In the light of my determination that I should grant the application and dismiss the proceedings pursuant to Order 19 rule 28 RSC, the Defendant appears presumptively entitled to its costs of the proceedings but I will invite submissions from the parties in that regard, including submissions as to the measure of costs which should be applied and whether there should be an interim payment on foot of the costs awards to date in the Defendant's favour in these proceedings.
Conclusion
162. As the authorities show, the applicant faces a heavy onus on an application pursuant to Order 19 rule 28 RSC. The jurisdiction to dismiss is sparingly exercised and only when it is clear that the proceedings are bound to fail. The Plaintiff is entitled to a full trial unless it is clear there is no real risk of injustice in dismissing the claim and it is clear beyond doubt that a plaintiff could not succeed. For the reasons outlined above, I am satisfied that the Defendant has met the heavy onus in this regard. As well as being satisfied that the claim is bound to fail, I am satisfied that the claim also discloses no reasonable cause of action, amounts to an abuse of the process of the Court, has no reasonable chance of succeeding, and/ or is frivolous and/ or vexatious. In the circumstances, and notwithstanding that the Defendant did not oppose the amendments, I consider that I should make orders:
a. refusing the relief sought by the Plaintiff in the Amendment Motion and providing for the Defendant's costs in that Motion;
b. dismissing and/or striking out the Plaintiff's claim either pursuant to the inherent jurisdiction of the Court or pursuant to the provisions of Order 19 rule 28 RSC and providing for the Defendant's costs in the Dismissal Motion.
However, the parties may notify the Court within 14 days if they wish to make submissions as to the terms of the final order, including as to costs, before it is finalised in which event a brief hearing will be arranged in early course.
[1] On a few occasions the plaintiff's representatives' affidavits did refer to the 11 April 2023 "agreement" and a reply to particulars suggested that the plaintiff "accepted" the defendant's offer in the course of the 11 April 2023 call. However, this appears to be loose language, because the totality of the Plaintiff's pleadings, affidavits, particulars, correspondence and submissions repetitively assert that the 11 April 2023 call was an offer, and that the "agreement" was concluded by the 20 April 2023 letter.
[2] Although the "acceptance letter" asserted that the transaction was "subject to title", the pleadings, particulars, submissions or affidavits do not suggest that the parties discussed that point during the 11 April call. If that was a new requirement in the "acceptance letter", rendering the letter a counter offer, it would further undermine the assertion that there was a concluded contract. The plaintiff may say that the requirement was implicit from previous dealings and normal practice but that may be inconsistent with its own rejection of the contention that earlier stipulations applied (such as the payment of an agreed deposit and the exchange of signed contracts). Property contracts usually expressly stipulate that the vendor must show good title but do not always do so (some auction sales are cases in point). Accordingly, it may not be possible to imply such a term. However, this "counter offer" point was not canvassed in submissions and would require plenary hearing, so I have disregarded it for present purposes.
[3] I assume for present purposes that the "acceptance letter" was posted on 20 April 2023, the date on its face, but the plaintiff has not adduced any evidence to date as to who posted the registered letter, or when.
[4] The judgment of Costello P noted the disconnect in the reliefs sought between the Indorsement of Claim and the Statement of Claim, a gulf that has widened with the amendments to the latter. Although it indicated an intention to do so, the Plaintiff has not sought leave to amend the Indorsement of Claim but most reliefs claimed therein are unstatable because the Plaintiff is not the sole owner of the property, a point emphasised in both previous judgments. Accordingly, the only relief which could possibly survive would be a damages claim, an issue considered below.
[5] Although the solicitor's averment states that the April 2023 negotiations were between the Defendant and the Plaintiff's solicitor, this is clearly a mistake in the solicitor's affidavit (which the managing director also failed to address in his affidavit of verification). The evidence overwhelmingly confirms that the alleged April 2023 discussions were between the Managing Director and the Defendant. There is no evidence that the solicitor was involved in direct discussions with the Defendant (and there could have been ethical issues if the position had been as wrongly stated in the Plaintiff's solicitor's affidavit). I therefore assume that this was simply another mistake in the Plaintiff's solicitor's affidavit and in the managing director's verifying affidavit. My observations in respect of para 153 apply with equal force here.
[6] The Plaintiff appears to seek to buttress its claims both in respect of exclusivity and in respect of the April 2023 "agreement" by reference to expense which to a very significant degree appears to have predated any interaction between the parties and certainly long predated the eventual "agreement".
[7] The Plaintiff's solicitor's 3 August 2023 reply that extensions should be mutually agreed seems to suggest a misunderstanding on the author's part because the Defendant's solicitor's stipulation was more consistent with the object of the condition and normal conveyancing practice.
[8] Even if the window was taken a commencing on 20 April 2023, it is not evident that it would affect the position, particularly given the intervening weekend period.
[9] The implication of the submission seemed to be the counsel's name was required on the draft pleading if it had been settled by counsel but counsel can only settle proceedings if they are satisfied that a statable case is shown. Counsel of the plaintiff did not respond to that point or confirm whether the amendments had in fact had been settled by counsel. I do not need to determine that issue.