THE SUPREME COURT
Appeal No: 2012/514
Clarke C.J. O'Malley J. Baker J. Jackie Greene Construction Ltd
Plaintiff/Appellant
and
Irish Bank Resolution Corporation in special liquidation
Defendant/Respondent
Judgment of the Chief Justice, Mr. Justice Clarke, delivered the 24th January 2019
1. Introduction
1.1 This judgment relates to an "old" jurisdiction appeal which formed part of the backlog which existed in this Court prior to the establishment of the Court of Appeal. This appeal was one of those which were transferred to the Court of Appeal by order of the Chief Justice (made with the concurrence of the other members of the Court) on the 29th October 2014. However, as part of the measures adopted by this Court to assist the Court of Appeal with its own backlog, this appeal was returned to this Court as a result of a determination made on the 26th October 2018 ( Jackie Greene Construction Limited v. Irish Nationwide Building Society [ 2018] IESCDET 165). It might briefly be noted at the outset that, on the 8th November 2018, the Court amended the title of the respondents in this appeal from "Irish Nationwide Building Society" to "Irish Bank Resolution Corporation in special liquidation", as a consequence of the fact that the interests of Irish Nationwide now vest in that latter body. It should further be noted that, while the settlement agreement whose interpretation is at issue in this appeal was signed on behalf of Irish Nationwide, it is clear from the body of the text that it was the Irish Bank Resolution Corporation which was bound by the terms of the agreement. For the sake of clarity, I will use "IBRC" to describe the defendant/respondent in all instances.
1.2 In any event, none of those matters are of any particular relevance to the issues which now have to be resolved. When these proceedings were initially before the High Court they were compromised between the parties on terms which it will be necessary to set out in a little more detail. However, in substance the settlement terms provided that an expert should be appointed to assess the profits likely to be achieved from the completion of a property development which had been delayed in its completion largely because of the recession. Rather extraordinarily, having regard to the fact that IBRC (in its then operation as Irish Nationwide) was a financial institution, the original arrangements between the parties provided not just for the repayment of loan facilities furnished by IBRC to the plaintiff ("Jackie Greene Construction") but also for a profit share between the parties. Thus, the arrangements generally provided for the distribution of the net funds generated by the sale of properties within the development so as to pay off the loan advanced by IBRC but then for the sharing of the profits generated thereafter. There were also specific measures agreed as to how the relevant funds would be held pending a final distribution between the parties.
1.3 Given that the finalisation of the sale of the units within the development was inevitably delayed by the recession, disputes arose between the parties as to what was to happen next and these proceedings ensued. The settlement arose in the context of those disputes.
1.4 Thereafter, the matter returned to the High Court as a result of a further dispute arising between the parties as to the proper interpretation of the settlement and the application of the settlement as properly interpreted to the particular circumstances which had arisen.
1.5 That matter was determined by Gilligan J. by a judgment delivered on the 26th June 2012 ( Jackie Greene Construction v. Irish Nationwide Building Society (Unreported, High Court, Gilligan J., 26th June, 2012)) which resulted in an order of the High Court of the 27th July of the same year. That order made provision for what was to happen to the cash already held by the parties and further made provision for a judgment in favour of IBRC in the sum of €8,827,928.50, with credit being given for the cash already obtained together with further credit for 50% of the net proceeds of sale of any unsold units at the development. Provision was also made for a stay.
1.6 It is as against that judgment of the High Court that this appeal lies. In order to understand the precise issues which arise it is necessary to say a little about the original agreement between the parties and the dispute which was the subject of the settlement whose interpretation lies at the heart of this appeal.
2. The Original Agreement and the Dispute
2.1 The underlying proceedings in this case, which led to the settlement agreement forming the subject matter of the current appeal, concerned a series of loan facilities advanced to Jackie Greene Construction by IBRC for the purpose of the purchase of lands at College Drive, Terenure, and the construction of residential and commercial units on those lands ("the Development").
2.2 As noted above, an aspect of the loan facilities advanced to Jackie Greene Construction was a profit-sharing arrangement, which, rather curiously, was referred to as an arrangement fee. The mechanism for the operation of the profit-sharing arrangement was set out in a number of supplemental loan agreements ("SLAs") and essentially provided that Jackie Greene Construction was to lodge the net proceeds from the sale of the units at the Development to a designated account held with IBRC in the sole name of Jackie Greene Construction. On completion of the Development, the SLAs provided for a 50:50 distribution of the profits between the parties out of the funds in the account.
2.3 Jackie Green Construction lodged what it maintained were the net sale proceeds to the designated account. As at the 2nd February 2011, the relevant account contained €8,694,396.51. On 3rd February 2011, IBRC removed €6,279,354.06 from the account. Jackie Greene Construction alleged that this was done without prior notice, without their consent, and in circumstances where the Development was incomplete. Jackie Greene Construction issued proceedings seeking the return of that latter sum of money to the account.
2.4 It was, of course, against that backdrop that the settlement, whose terms are now disputed, was entered into between the parties. It is next appropriate, therefore, to turn to the terms of that settlement.
3. Terms of Compromise
3.1 Terms of compromise were entered into between the parties on the 22nd November 2011. A number of the terms of that agreement are of particular importance to the issues which now arise.
3.2 Clause 1 of the terms of compromise provided:-
"The Parties have agreed to an Expert determination in respect of the profit or loss of and concerning the Development of 7 acres at College Drive in Terenure … and as provided for in the Parties' various Facility Letters and Supplemental Loan Agreements between 15th March, 2002 and 19th April, 2007."
3.3 Clause 10 provided:- "In making his decision as to the final determination of profit or loss for the Development, the Expert will carefully consider the possible sale price that can be achieved for the unsold units, and the length of time it may take to sell these units and complete the Development, including the likely ongoing costs while this sale process is undertaken. The Parties agree that all necessary valuations and appraisals in respect of the remaining units to be sold may be obtained by either party and submitted to the Expert as part of his determination. All requisite access to the units will be made available to Jackie Green Construction Limited in respect of any such valuations."
3.4 Clause 12 provided:- "The respective undertakings furnished by the parties shall continue and more particularly, in lieu of the undertaking to date furnished by Irish Nationwide Building Society, the Irish Bank Resolution Corporation undertakes to hold, free from charge or encumbrance the sum of €6,279,354.06 together with interest accrued since 4th February, 2011, and Jackie Green Construction Limited undertakes to take no steps to access or otherwise utilise the funds formerly in account number 301418439 and now in an account held in PTSB … in the sum of €2,415,042.45, pending the Expert's decision of the profit or loss."
3.5 Clause 13 of the compromise agreement governed what was to happen in light of the expert's determination:- "The Parties agree that the Expert's decision in respect of the profit (if any) will be first satisfied from the funds in respect of which the relevant Parties have given their above undertakings and thereafter insofar as those funds are insufficient to meet the award of the Expert, or insofar as the Expert identifies a profit related specifically to future sales of units in the Development, the balance shall be distributed from the net proceeds, as defined in the Supplement Loan Agreements, of actual sales of the units currently remaining unsold in the Development on a 50:50 basis as such net proceeds become available, until the entirety of the profit identified by the Expert has been distributed or the entirety of the net proceeds of sale of all units has been exhausted, whichever occurs sooner. In the event the profit identified has not been discharged within five months from the Expert's decision or 1st September, 2012 whichever is the latest, the Parties agree that any remaining unsold units are marketed and sold as soon as practicable and for the best market price available at that time. …"
3.6 Clause 17 provided:- "Following the discharge in full of the profits to Irish Bank Resolution Corporation as set out at paragraph 13 above, it is agreed that the Irish Bank Resolution Corporation shall release Jackie Green Construction Limited from any or all encumbrances related to the Development and the directors of the said company will be released from any personal guarantees provided by them on such discharge."
3.7 As of the time of the hearing of the appeal before this Court there still remained one unit to be sold so that the precise financial outcome is not absolutely clear. However, it does appear on the facts that the total funds generated by the sale of the units which remained unsold at the time of the compromise will be insufficient to ensure that all of the monies representing 50% of the profit as determined by the expert can be paid to IBRC. It is suggested that this was an unanticipated result, but nonetheless it would appear to be what has factually occurred. It is the proper interpretation of the compromise agreement in that context and its application in those circumstances that lies at the heart of the dispute between the parties. Before going on to identify the precise issues of interpretation which arise, it is appropriate to briefly set out the facts which have transpired since the settlement or compromise was entered into.
4. The Post Settlement Facts
4.1 Mr. Derek Donohoe, a partner with RSM Farrell Grant Sparks ("the Expert"), was appointed as expert by the parties in accordance with the terms of compromise.
4.2 On the 2nd April 2012, the Expert issued his determination, concluding that the profit from the Development was €17,655,857.00, and that each party was accordingly entitled to €8,827,928.50.
4.3 A dispute arose between the parties as to the proper interpretation of the terms of compromise. IBRC issued a motion on the 24th April 2012 seeking judgment against Jackie Greene Construction in the sum of €2,548,574.44, being the difference between the profit share identified by the Expert (€8,827,928.50) and the sum already received by IBRC from the designated deposit account (€6,279,354.06). IBRC also sought payment of a sum in part satisfaction of that judgment.
4.4 Jackie Greene Construction resisted the motion on the basis that the proceeds of sale held in the account were insufficient to satisfy each party's entitlement as determined by the Expert and that the balance of profit due to each party should be satisfied on a 50:50 basis from the net proceeds of sale following the disposal of the then 23 remaining units in the Development.
4.5 The motion was heard before Gilligan J. in the High Court. As noted above at para. 1.5, Gilligan J. made an order on the 27th July 2012 which made provision for what was to happen to the cash already held by the parties and further made provision for a judgment in favour of IBRC in the sum of €8,827,928.50, with credit being given for the cash already obtained together with further credit for 50% of the net proceeds of sale of any unsold units at the Development. The execution and registration of that judgment was stayed pending the sale of all the unsold units at the Development. As noted above, at the time of the hearing of this appeal, there still remained one unsold unit.
4.6 There was no significant dispute between the parties as to the proper approach to be adopted in relation to the construction of the settlement agreement. However, it is appropriate to briefly set out the relevant principles.
5. The Approach to Interpretation
5.1 It is accepted that the law relating to the interpretation of settlement agreements does not differ from the law relating to the interpretation of any other type of contract. In this regard, reference might be made to Delany and McGrath on Civil Procedure , 4th Ed., (Dublin, 2018) at para. 20-12, where the authors explained the approach of the courts in this context in the following way:-
"As noted above, a settlement agreement is a contract and, in Bank of Credit and Commercial International v. Ali , the House of Lords confirmed that the general principles of contractual construction apply to settlement agreements and rejected the proposition that any special rules of construction were to be applied in construing the meaning of a release contained in such an agreement. Applying those principles of contractual interpretation, where a question arises as to the meaning of a provision in a written settlement agreement, then as explained by Keane J in Kramer v. Arnold , ‘the task of the court is to decide what the intention of the parties was, having regard to the language used in the contract itself and the surrounding circumstances'. While it is open to a court to imply a term in a Terms of Compromise, this can only be done if the requirements for doing so are satisfied."
5.2 The more recent authorities in this area suggest that the detailed rules for the proper approach to the construction of contractual documents all derive in substance from the approach which can be encapsulated in the phrase "text in context". In that regard, reference might be made to my own judgment in Lanigan and ors. v. Barry and ors . [2016] IESC 46, where I stated:- "The principles applicable to the construction of a planning permission are, of course, well settled and were described by McCarthy J. in the oft-quoted passage from In re. X.J.S. Investments Ltd [1986] IR 750 as requiring the Court to construe planning documents not as complex legal documents drafted by lawyers but rather in the way in which ordinary and reasonably informed persons might understand them. It might, in passing, be appropriate to note that this was, perhaps, an early example of the move towards what has been described as the ‘text in context' method of construction appropriate to the determination of the meaning of all documents potentially affecting legal rights and obligations. This approach has now become well established. The ‘text in context' approach requires the Court to consider the text used in the context of the circumstances in which the document concerned was produced including the nature of the document itself."
5.3 Similarly, in The Law Society of Ireland v. The Motor Insurers' Bureau of Ireland [2017] IESC 31, I described the "text in context" method of construction in the following terms:- "The modern approach has sometimes been described as the ‘text in context' method of interpretation. It might be said that the older approach in the common law world placed a very high emphasis indeed on textual analysis without sometimes paying sufficient regard to the context or circumstances in which the document in question came into existence. On the other hand, it is important not to lose sight of the fact that the document whose interpretation is at issue forms the basis on which legal rights and obligations have been established. That is so whether the document in question is a statute, a contract, the rules of an organisation, a patent or, indeed, any other form of document which is designed, whether by agreement or unilaterally, to impose legal rights and obligations on either specific parties or more generally. To fail to have sufficient regard to the text of such a document is to give insufficient weight to the fact that it is in the form of the document in question that legal rights and obligations have been determined. However, an over dependence on purely textual analysis runs the risk of ignoring the fact that almost all text requires some degree of context for its proper interpretation. Phrases or terminology rarely exist in the abstract. Rather the understanding which reasonable and informed persons would give to any text will be informed by the context in which the document concerned has come into existence.
Perhaps it is fair to say that the main underlying principle is that a document governing legal rights and obligations should be interpreted by the courts in the same way that it would be interpreted by a reasonable and informed member of the public who understands the context of the document in question. Such a person would, necessarily, pay a lot of attention to the text but would also interpret that text in its proper context."
5.4 As is clear from those authorities, it is important to give due recognition both to the text of any document creating legal rights and obligations and to the context in which the words used in the measure concerned were chosen. To fail to give adequate weight to the words is to ignore, or downplay, the fact that those were the words that were chosen to define the relevant legal arrangement. To fail to give adequate weight to context is to ignore the fact that all language is inevitably interpreted by reasonable persons in the light of the context in which that language is used.
5.5 In addition, it is clear from the authorities referred to that part of the relevant context is the nature of the document governing legal rights and obligations whose construction is at issue. The more formal the document the less one would expect to find errors or looseness of language. Contractual documents entered into after careful negotiations between experienced lawyers on behalf of the parties may be seen to operate in a different context to, for example, the informal rules of a small association. In all cases the text is important, but part of the context in which that text needs to be considered is the manner in which that text was arrived at, and the circumstances which led to the text being required and/or agreed.
5.6 Before going on to apply those principles to the circumstances of this case it is necessary to describe the approach of the High Court and briefly outline the argument in this Court.
6. The High Court
6.1 As noted above, Gilligan J. delivered the judgment of the High Court on the 26th June 2012. Having reviewed the relevant factual background, the terms of the compromise agreement and the Expert's determination, Gilligan J. ultimately concluded that Jackie Greene Construction owed IBRC €8,827,928.50. Gilligan J. did acknowledge that, from the perspective of Jackie Greene Construction, it may not have been considered that there would be a shortfall resulting from the Expert's determination of the profit as compared to the actual profits derived from the sale of the units.
6.2 However, Gilligan J. ultimately concluded that the terms of the compromise agreement were unequivocal in relation to the binding nature of the Expert's determination on the parties. Gilligan J. held that payment of the sum was to come first from the funds in respect of which the parties had given undertakings and second from the sale of the unsold units. Gilligan J. stated that, thereafter, it appeared that, in the event of a shortfall, IBRC was entitled to judgment against Jackie Greene Construction for the balance which remained due as a result of the Expert's determination of the profit arising from the Development.
7. The Argument
7.1 In the present appeal, Jackie Greene Construction argue that Gilligan J. erred in his interpretation of the terms of compromise, in particular by failing to recognise what was said to be the mutual entitlement of the parties to a 50% share in the net profits from the Development and in finding that the terms of compromise had not made express provision for circumstances in which there was a shortfall in monies available to satisfy the parties' profit entitlements.
7.2 Jackie Greene Construction submit that the terms of compromise must be interpreted in light of the SLAs, as those agreements provide the factual context against which the terms of compromise were concluded. In that regard, they emphasise the clause in the relevant SLA providing for the profit sharing arrangement. This is the crux of the submissions: that it was always intended that the parties would share in whatever profit or loss arose as a result of the sale of the units at the Development. Jackie Greene Construction argue that this is contained in the SLAs, as well as in the terms of compromise, and was acknowledged by the Expert in his determination.
7.3 Regarding the High Court's finding that there was no provision made for a shortfall scenario, Jackie Greene Construction point to Clause 13 of the compromise agreement. They submit that Clause 13 exclusively identified two sources for the distribution of profits, being the funds already held by the parties (i.e. the sum of €8,694,396.51) and in the event that those monies were insufficient to meet the Expert's determination, the net proceeds from the actual sale of the units then remaining unsold. It is highlighted that Clause 13 provides that the net proceeds of actual sales of the remaining units were to be distributed "on a 50:50 basis as such net proceeds become available, until the entirety of the profit identified by the Expert has been distributed or the entirety of the net proceeds of sale of all units has been exhausted, whichever occurs sooner " (emphasis added). It is this latter phrase, they argue, which recognises the possibility that there might be a shortfall in monies available to satisfy the profit identified by the Expert. Jackie Greene Construction submit that the ultimate effect of this clause is that, once the remaining units have been sold and the net proceeds distributed, neither party has any entitlement to further payment.
7.4 A final issue arises regarding interest accrued on the monies held on deposit by the parties. Clause 12 of the terms of compromise required IBRC to hold the sum of €6,279,354.06 "together with interest accrued since 4 February 2011" pending the Expert's determination. Jackie Greene Construction submit that any interest earned on that sum should form part of the pot from which profit is to be distributed.
7.5 For their part, IBRC emphasise the terminology used in Clause 3 of the settlement agreement, to the effect that "[t]he determination of the Expert on all issues shall be accepted as final, binding and without appeal or review." They submit that Jackie Greene Construction are attempting to undermine the binding nature of the Expert's determination in their submissions by seeking to introduce an element of contingency.
7.6 IBRC acknowledge that Clause 13 recognises the possibility of a shortfall, but submit that the terms of compromise do not indicate what has to happen should such a shortfall arise. They submit that this is in fact what Gilligan J. found in his judgment. IBRC further reject the argument that Clause 13 lists exhaustively the sources from which recourse can be had in order to satisfy its entitlement to a share of the profits. They submit that, if this were the case, it would be inconsistent with the terms of Clause 3 as just set out. If it were necessary to wait until all the units had been sold before the precise extent of the parties' entitlements were to become clear, IBRC submit that this would render the Expert's determination nugatory.
7.7 Finally, IBRC characterise Jackie Greene Construction's interpretation of the settlement agreement as meaning that IBRC is not entitled to any share in the profits realised from the Development which exceeds the sum determined by the Expert. This is accepted by IBRC. However, they also submit that, on the argument of Jackie Greene Construction, that company was not obliged to pay IBRC the half share of the profit identified by the Expert if the profit actually realised from the Development were to fall short of the Expert's determination. This, they argue, represents a lopsided agreement which does not accord with business common sense and would require clear contractual language, which is said to be lacking in the compromise agreement. Indeed, IBRC argue that this interpretation flatly contradicts Clause 3 of the terms of compromise agreement to the effect that the determination of the Expert was to be "final, binding and without appeal or review".
8. Discussion
8.1 It seems to me that a first, and particularly important, aspect of the proper construction of the disputed parts of the compromise agreement in this case must be to identify the purpose behind the appointment of an expert in the first place.
8.2 The position which pertained prior to the settlement being entered into was that the parties had already committed to sharing the profits from the Development on a 50:50 basis. The disputes which had arisen concern matters regarding the calculation of that profit share, such as whether all appropriate sums had been lodged by Jackie Greene Construction to relevant accounts, whether there was any legal basis on which IBRC could, as they had done, simply have taken the monies from the account, and how the original agreement between the parties was to operate in practice given the fraught financial circumstances which existed at the time.
8.3 It was also clear that the determination of the profit by the Expert would inevitably involve some degree of estimation. Obviously, in respect of those properties which had already been sold, the Expert could use his knowledge as an accountant to work out the actual profits which had been earned. But insofar as further properties remained unsold and insofar as there were likely to be costs incurred in arriving at a situation where those additional properties could be sold, the calculation of the profits likely to be derived from the unsold properties necessarily involved estimation.
8.4 It follows that the overall figure for the profit which was going to be determined by the Expert would not necessarily equate to the actual profits which would ultimately be derived from the Development as a whole. By definition, the inclusion of a material estimated part of the equation led to a situation where it was improbable that the Expert would get his estimation exactly right (that is to say, that it would exactly conform with the amount of profits which would ultimately derive) and there was at least a possibility that the estimation might be significantly out, even if entirely competently calculated.
8.5 It follows that the fact that the parties placed an expert determination at the centre of their settlement agreement meant that that estimation would not necessarily correspond to the profits which might, with the benefit of hindsight, be properly calculated as deriving from the Development as a whole when it was completed and all the units sold. But in those circumstances there must have been some purpose which the parties sought to achieve by appointing an expert and providing that the determination by that expert of the profits was to bind the parties. Clearly, there would be no point in nominating an expert and conferring the role of expert determination upon him, if the parties were entitled to revisit, in the light of experience as it ultimately panned out, the question of the overall profits. Any construction of the settlement agreement must, in my view, reflect those circumstances. The parties were buying into an expert determination even though it would necessarily be an estimate and might, with the benefit of hindsight, turn out not to accurately reflect the profits ultimately made. It follows that any reasonable construction of the agreement must accept that there could be consequences, one way or the other, of it transpiring that the ultimate outturn was different from the Expert's determination, for if it were to be otherwise there would have been no point to the nomination of an expert in the first place.
8.6 In the light of that analysis it is necessary to turn to the two key clauses in the compromise agreement, which are Clauses 13 and 17. Clause 13 first specifies that the amounts identified by the Expert are initially to be satisfied from the funds held by the parties, being, in the case of IBRC, €6,279,354.06 together with interest, and in the case of Jackie Greene Construction, a sum of €2,415,042.45.
8.7 Obviously, at the time of entering into the compromise, the amount of profit to be identified by the Expert was unknown and Clause 13 therefore follows in a conditional sense in providing that, insofar as the funds available were insufficient to meet the award of the Expert or insofar as the Expert-identified profit related specifically to future sales, the balance outstanding "shall be distributed from the net proceeds, as defined in the supplemental loan agreements, of actual sales". It was also provided that this was to continue to apply "until the entirety of the profit identified by the Expert" had been distributed or the entirety of the net proceeds of sale of all units had been exhausted, whichever occurs sooner. That latter phrase seems to contemplate two possibilities. First, it might be that the amounts which would ultimately become available would be sufficient to meet the profit share identified by the Expert. On that basis, the net proceeds were to continue to be shared until such time as the profit share identified by the Expert had been met. The alternative was that the net proceeds might become exhausted prior to the profit share identified by the Expert being reached.
8.8 However, the agreement does not expressly state what is to happen after one or other of those eventualities occurred. In the former case, being where the profit shares are met, and assuming that the Expert did not get the profit correct down to a single euro, there would likely be further net proceeds coming in. The question arises as to what is to happen to those additional net proceeds above and beyond the profit share identified by the Expert.
8.9 In the other eventuality, the agreement is again silent on what is to happen if the event which occurs "sooner" is the exhaustion of net proceeds without reaching the sum required to provide for the profit share identified by the Expert.
8.10 It has to be said that it is unfortunate that the agreement does not appear to have dealt, in express terms, with what is to happen in either of those eventualities. It would have been very easy for the parties to have set out, in clear and unambiguous terms, what regime was to apply in either case. In those circumstances it is necessary for the Court to interpret the contract as best it can.
8.11 However, the overriding factor, in the circumstances of this case, seems to me to be the fact that the profit share identified by the Expert would have no practical meaning if the net result was that the parties were to share the profits on a 50:50 basis calculated after all the units had been sold and thus without any element of estimation or valuation. That was the position which pertained under the SLAs in any event. The compromise agreement would not, if that were the case, have altered the situation. This being a business agreement it must be assumed that the parties intended that the appointment of an expert was to make some difference. It follows, in turn, that it must have been contemplated that there could be winners and losers depending on whether the ultimate outturn exceeded or failed to meet the Expert's valuation.
8.12 In that context it seems to me that Clause 17 provides some assistance in discerning the intention of the parties, as can be gleaned from the words which they chose to use in what was, after all, a carefully drafted compromise agreement entered into with the benefit of significant legal advice. Clause 17 provides that Jackie Greene Construction was to be released from all encumbrances related to the Development (including the release of directors from guarantees) "following the discharge in full of the profits" to IBRC. That clause would be somewhat contradictory if the proper construction of Clause 13 did not require the discharge in full to IBRC of its share of the profit identified by the Expert. That contradiction would arise from one clause (Clause 17) allowing IBRC to retain security until the full amount of its profit share were obtained, but another clause (Clause 13), on the construction advocated by Jackie Greene Construction, absolving that company from having to procure that IBRC received its full profit share as identified by the Expert.
8.13 It is also necessary, at this stage, to address the principal argument put forward on behalf of Jackie Greene Construction which was to the effect that it was, at all times, both in the original agreements identified in the SLAs but also in the compromise agreement, accepted that both parties would share the profit on a 50:50 basis. Clearly, if the analysis of the High Court is correct then, in the events that happened, the consequence of the compromise agreement will be that IBRC will obtain a greater share of the profits than Jackie Greene Construction. It is undoubtedly true that this is an arrangement which was not contemplated in the original agreements between the parties. However, the real question is as to whether the terms of the compromise agreement altered that situation. It seems to me that they did. By accepting the binding nature of the determination of the profits by the Expert in circumstances where that determination would necessarily involve an element of estimation, it seems to me that Jackie Greene Construction were accepting that the 50:50 split previously agreed might be departed from in circumstances where the profits ultimately earned fell short of or, indeed, exceeded the amount determined by the Expert.
8.14 In addition, by accepting that the sums actually held by the parties at the time of the compromise agreement (which were significantly skewed in favour of IBRC) would be the first port of call, Jackie Greene Construction was accepting that the company would be at risk of losing out if there were a shortfall in the profits ultimately realised.
8.15 The fact that it might well not have been considered likely that the shortfall would be so large that Jackie Greene Construction would actually be required to pay over money to IBRC does not affect the fact that such a risk is inherent in the arrangements entered into. As noted in Clause 13, it was acknowledged that the profits determined by the Expert would first be satisfied from the funds which the relevant parties already held and in respect of which they had given undertakings. On that basis, IBRC would start with a payment of just over €6¼m while Jackie Greene Construction would start with the sum of just under €2½m.
8.16 The second set of payments was to come from a 50:50 distribution of the net proceeds of the as yet unsold units. In that context it may be useful to take a simple example of it transpiring to be the case that those additional funds were sufficient to bring IBRC up from the amount of just over €6¼m to the value of 50% of the profits as determined by the Expert. It would be clear that, at that time, IBRC would have received their full profit share on the basis of the determination by the Expert but Jackie Greene Construction would have received almost €4m less. That analysis demonstrates that the compromise agreement clearly contemplated a departure from the 50:50 split which had originally applied between the parties.
8.17 In those circumstances, and while accepting that there is some ambiguity in the contract, I am satisfied that the proper approach to the construction of the contract as a whole is that it bound Jackie Greene Construction to procure that IBRC received its share of the profit as determined by the Expert. To take any other view would be to render the expert evaluation which lay at the heart of the compromise agreement at nought and would also create a contradiction with Clause 17.
8.18 In the light of that finding, I would hold that the proper construction of the compromise agreement provides that IBRC was entitled to the 50% share of the profit determined by the Expert. However, a further question arises as to the proper order which should have been made in those circumstances.
9. The Order
9.1 Having concluded that the trial judge was correct in his interpretation of the compromise agreement it, however, also seems to me that the trial judge was incorrect to give judgment for the full sum against Jackie Greene Construction. What the compromise agreement provided for was not just a determination of the profit on the basis of an estimation in respect of which both parties would be bound, but also a method for payment. IBRC were entitled, in accordance with the agreement as thus interpreted, to the release to them of the sum of €6,279,354.06 together with interest. It follows that the interest accrued must be included in the sum for which IBRC are to be given credit in determining the sums actually paid over in part satisfaction of 50% of the profit as determined by the Expert. IBRC were also entitled to a declaration that Jackie Greene Construction, whether by the release of monies which they held, or otherwise, was obliged to make up the shortfall between that sum and 50% of the profit share as identified by the Expert. It seems to me that an order along those lines would have been more appropriate rather than a judgment for a sum which Jackie Greene Construction would never have been obliged to pay over. The granting of a judgment in those circumstances might well be apt to mislead persons as to the financial position of Jackie Greene Construction.
9.2 I would, therefore, propose that orders be made providing for the release of the monies held by IBRC and also declaratory orders concerning the balance. I would propose hearing counsel further on the precise form of orders which should be made.
