Leopardstown Club v Templeville Developments: Court of Appeal exceeded its jurisdiction in overturning High Court’s finding of fact

Here, the Supreme Court overturned the decision of the Court of Appeal in this case and affirmed the judgment of the High Court (Charleton J). Answering the questions certified, the Court held:

(i) First, in essence, did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady? I would answer this in the affirmative, for the reasons given.

(ii) Second, the issue of misrepresentation and the application of the correct law. The Court was not asked to overrule Gahan v Boland. Once there was evidence to support the learned High Court judge’s finding, as to the credibility of Mr Smyth, this was a finding of primary fact which should not be set aside by an appellate court as it was supported by credible evidence. Further aspects of the law on misrepresentation did not arise.



In 1998 Leopardstown granted Templeville a 35 year lease over land at Leopardstown race course. Templeville constructed a sports club including indoor and outdoor tennis courts. However, the relationship between the parties has been fractious and has resulted in many legal disputes. In 2011 there were nine separate disputes between the parties. The parties entered into a complex mediation process which led to a Mediated Settlement Agreement to resolve all of the outstanding disputes. The Agreement was made a rule of court.

That did not resolve the disputes, though. In 2012 Leopardstown issued High Court proceedings seeking a declaration that the Agreement was still in force and seeking money owed, damages and other reliefs. Templeville counterclaimed that Leopardstown induced it into the Agreement by misrepresentation regarding two ESB cables which run under the property.

In the High Court (here), Charleton J granted Leopardstown the orders sought, stating:

70. It is impossible not to be satisfied that Templeville had knowledge of the transverse ESB cable. I am satisfied that Philip Smyth [Templeville director], in claiming no knowledge of the cable is giving evidence that, in these circumstances, a court could not accept.

Templeville appealed that decision.


Hay v O’Grady [1992] 1 IR 210


The rule from Hay v O’Grady was stated by by McCarthy J at 217:

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. …


Court of Appeal


Allowing Templeville’s appeal, the Court of Appeal issued two judgments. Hogan J (here) stated:

123. Third, the findings made by the High Court to the effect that Templeville had such knowledge cannot be sustained. Specifically, the trial judge did not apply the correct legal test in assessing this question, since he should have considered whether Leopardstown had established on the balance of probabilities that Templeville had actual and complete knowledge of the existence of the traversing cable in the manner required by the Supreme Court in Gahan. It was not enough, for example, to point to the existence of ESB manholes on the tennis court site in order to fix Templeville with knowledge, as this would go constructive rather than actual knowledge only.

Finlay Geoghegan J (here) wrote a concurring judgment finding that the evidence before the trial judge did not establish that Templeville had complete knowledge of the existence of the two cables at the time it entered the Agreement. She stated at [31]:

The onus on this issue of actual and complete knowledge is on Leopardstown and it does not appear that it can be considered as discharged by such credibility findings of the trial judge.


Leopardstown sought leave to appeal to the Supreme Court. The Court granted leave on two issues of general public importance:

(a) The principle and application of the rule in Hay v O’Grady [1992] I.R. 210 and the jurisprudence derived therefrom. The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts and a matter of general public importance. In essence did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady?

(b) The test and criteria to establish misrepresentation are matters of law which were addressed by this Court in Gahan v Boland [1985] ILRM 218. The Court was not asked to overrule Gahan v Boland. An issue was raised as to the nature of what should be proved in order to show misrepresentation, and, in particular, whether it must be shown that the representee was actually induced to enter into the transaction by reason of misrepresentation. Can constructive knowledge be a defence? (It was noted that since s. 86 of the Land and Conveyancing Law Reform Act, 2009, there are new rules regarding constructive knowledge. The Act of 2009 is not in issue on this appeal).


Supreme Court

Chief Justice Denham wrote the judgment for the five judge panel.  MacMenamin J wrote a concurring judgment. Allowing Leopardstown’s appeal, Denham CJ held that Gahan v Boland did not create an onus on Leopardstown to establish that Mr Smyth had conscious knowledge of the two cables on the day he entered the Agreement [97]. There was ample evidence to support the trial judge’s finding that Mr Smyth had knowledge of the cables, and that was sufficient to defeat Templeville’s claim of misrepresentation [98]. And Hay v O’Grady establishes that an appeal court should not set aside a trial judge’s finding of fact which is supported by credible evidence.

The Court overturned the decision of the Court of Appeal and affirmed the High Court orders.


New Appeal: Re s 22 of the Courts Act 1981; Re Order 22 r 6 Rules of the Superior Courts

In this determination (Reaney v Interlink), the Supreme Court granted Interlink leave to appeal the Court of Appeal’s decision to exercise its discretionary jurisdiction under s 22 of the Courts Act 1981 and award Reaney interest on damages for breach of contract from the date of breach rather than from the date of judgment.



S 22 of the Courts Act 1981 (here) grants a court the discretionary power to order the payment of interest on an award of damages for the period from when the cause of action arose to the date of judgment.

Order 22, rule 6 of the Rules of the Superior Courts (here) provides for the awarding of costs in cases where a defendant has paid a sum into the court which is equal to or in excess of the award that the court makes to a successful plaintiff.



Interlink operates a network of courier franchises throughout Ireland. From 1995 to 2010, Reaney operated an Interlink franchise in Cork. In 20o8 a dispute arose between the parties; Reaney issued High Court proceedings seeking damages for breach of contract. In late 2009 Interlink issued a notice of termination of contract to Reaney pursuant to s 13 of the franchise agreement. The franchise terminated in July 2010. Reaney issued separate High Court proceedings for money due under s 13 of the franchise agreement. In December 2010 the High Court consolidated both sets of proceedings.

In January 2011 Interlink lodged €253,000 with the High Court to satisfy all of Reaney’s claims but denied liability. In October 2011 Interlink lodged another €109,000 with the High Court to satisfy all of Reaney’s claims, while denying liability.

In November 2012 the High Court (here) awarded Reaney €356,000 in damages against Interlink (which had lodged €363,000 in total with the court) but refused to award interest from the dates at which the actions arose as the franchise agreement did not make provision for such interest. And the High Court refused to exercise its discretionary jurisdiction under s 22 of the 1981 Act to award interest from the earlier dates.

As Interlink’s lodgment was greater that the award, under Order 22, that decision could mean that: Interlink would be liable for its own and Reaney’s costs up to the date it lodged the second payment with the court; and Reaney would be liable for his own and Interlink’s costs after the date Interlink lodged the second payment with the court. (Someone may correct me on this: Order 22 is complex).

Interlink appealed to the Court of Appeal. Reaney cross appealed, arguing that the High Court should have exercised its jurisdiction to award interest from the dates the actions arose.

In July 2016, the Court of Appeal (Finlay Geoghan J writing) dismissed Interlink’s appeal and upheld Reaney’s cross appeal. On the application of interest, Reaney’s award increased to €423,500. Under Order 22, this judgment, if allowed to stand, means that Interlink could be liable for all of the legal costs of both parties (I think).

Interlink applied to the Supreme Court for leave to appeal the CoA decision. The Court determined that the case raised a number of issues of general importance and granted leave to appeal on the following issues:

(i) The clear functioning of the Order 22 lodgment procedure is a matter of general public importance.

(ii) It is appropriate for the Court to consider the issue of the interest to be paid on lodgments pursuant to s. 22 of the Courts Act, 1981, and to clarify the law.

(iii) Does a court have a discretion pursuant to s. 22 of the Courts Act, 1981, in relation to proceedings arising out of an agreement even if the agreement does not contain any proviso in respect of the payment of interest?

(iv) Does a court have a discretion to refuse to exercise its discretion to award interest under s. 22 of the Courts Act, 1981.

(v) What are the principles according to which a court should exercise its discretion under s. 22 of the Courts Act 1981?

(vi) In construing Order 22 rule 6, was the Court of Appeal correct in law in finding that, for the purposes of Order 22, rule 6, the “amount awarded” by the Court is to be regarded as including any Courts Act interest awarded?

(vii) Was it correct in law to hold (as in the High Court) that even though the amount ultimately awarded to the plaintiffs was less than the total amount lodged by the defendant pursuant to Order 22, that the lodgments were nihil ad rem and of no relevance to the issue of costs because (the High Court held) the form of notices of lodgement did not comply with Order 22(5) because they did not allocate the accounts lodged to the different claims being made by the plaintiffs? (High Court judgment 30th November, 2012).

Murray v Budd: Addis v Gramaphone Co Ltd [1909] AC 488 remains the law in Ireland.

Here, the Supreme Court refused Murray’s request that it overrule the authority of Addis v Gramaphone Co Ltd [1909] AC 488 or find a new exception to the rule from that case. Addis set down the rule that compensation is not recoverable for breach of contract leading to non-financial loss. Since then, the courts have recognised certain exceptions to that rule: where the object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation.



In 1999, Murray was standing accused of possession with intent to supply a large quantity of heroin. Budd was appointed as Murray’s solicitor under the free legal aid scheme. Over a week before Murray’s trial the counsel appointed by Budd notified Budd that they would not be available on the trial date. However Budd did not instruct alternative counsel until the night before the trial. Naas Circuit Criminal Court convicted Murray and sentenced him to seven years imprisonment.

In 2005, within six years of the trial date, Murray commenced proceedings against Budd seeking compensation for his worry and stress during the week prior to his trial caused by Budd not having counsel in place. The case was the subject to two High Court hearings and an appeal to the Court of Appeal at the preliminary stage, dismissing Murray’s proceedings.

Murray applied to the Supreme Court for leave to appeal. Granting leave to appeal, the Court determined that Murray had raised an issue of general public importance: “whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract in which the particulars of loss and damage claimed are worry and stress short of a recognised physical injury should be treated as a personal injury action subject to the statutory limitation period applicable to personal injury actions”.


Supreme Court

Chief Justice Denham wrote the judgment for the seven judge panel dismissing Murray’s appeal. The Court examined the three possible actions under which Murray’s case could proceed: (1) personal injury, (2) tort and (3) professional negligence in breach of contract.

(1) Denham CJ held that any action for person injury is statute barred.

(2) Denham cited with approval the High Court decision in Walter v Crossan [2014] IEHC 377, where Hogan J thoroughly reviewed the law and concluded that damages are not recoverable in tort for worry and stress not giving rise to a psychiatric illness.

And (3), Denham stated that Murray was represented at trial by competent counsel and there was no breach of professional standards. The nature of the contract was not one under which damages for distress would be available under the exceptions from Addis. (The case was further complicated by the fact that there was no direct contract between Murray and Budd). And there were no circumstances in the case which warranted the Court to consider additional exceptions to Addis.

McGrath v Stewart: After 138 years, the systems of common law and equity are not yet fused

Here, the Supreme Court (Laffoy J) held that, after one hundred and thirty eight years since the Judicature Acts, the systems of common law and equity “are not yet fused”, therefore “the doctrine of laches has … no application to a claim at common law for damages for breach of contract where that claim is not otherwise barred by the Statute of Limitations” [34]. However, the High Court had erred in making an order for damages in lieu of specific performance of a contract for the sale of property, where McGrath’s claim for specific performance (equitable remedy) was defeated by a defence of laches (delay) and he had not sought damages for breach of contract at common law.


In 1998, McGrath contracted to purchase residential property from Stewart, with vacant possession. Stewart informed McGrath afterwards of sitting tenants and refused to complete the sale except with the tenants in place. In 2004, McGrath issued High Court proceedings seeking specific performance or damages in lieu of specific performance. But he did not seek damages for breach of contract at common law. In 2008, the High Court (here) found that McGrath’s claim for specific performance was defeated by Stewart’s defence of laches. But the trial judge (Murphy J) made an award of damages in lieu of specific performance.

Stewart appealed that decision to the Supreme Court.

Laffoy J narrowed Stewart’s grounds of appeal down to one valid issue: was the High Court trial judge acting within his power in making an award of damages in lieu of specific performance where he had found that the claim for specific performance was defeated by a defence of laches?

McGrath’s response relied largely on Duggan v Allied Irish Building Society (Unreported, High Court, Finlay J, 4th March 1976). There, the High Court awarded Duggan damages for breach of contract in common law in lieu of specific performance of a loan offer to be secured by a mortgage, even though he was not entitled at law to specific performance of an agreement to make an advance.

However, Laffoy J distinguished McGrath’s case from Duggan, as McGrath had not sought damages at common law in his plenary submissions to the High Court, and he could not, therefore, pursue that claim on appeal. Therefore, the issue was whether the trial judge could make an equitable award of damages for breach of contract at common law.

Laffoy J looked to Meagher v Dublin City Council [2013] IEHC 474, where Hogan J held that a defence of laches cannot defeat a claim for damages for breach of contract at common law. Of significance for this case was that Hogan J had reviewed the jurisprudence since the Supreme Court of Judicature Act 1887, which aimed to fuse the common law with equity. He found that, although the systems of common law and equity work closely and draw inspiration from each other, they “are not yet fused”. Laffoy J agreed with that that statement [34].

Allowing Stewart’s appeal, Laffoy J held that, as the defence of laches defeated McGrath’s claim for specific performance, the trial judge erred in making an award in lieu of specific performance. And as McGrath had not sought damages for breach of contract at common law, the trial judge could not have made an award on those grounds.


Healy v Ulster Bank: Supreme Court overturns trial judge’s decision for failure to engage with material evidence

In an unapproved judgment by the recently deceased Justice Hardiman (here), Clarke J and Laffoy J concurring, the Supreme Court overturned a High Court judgment for failure by the trial judge to engage with material and significant evidence which support the appellant’s case. The Court returned the case to the High Court for retrial.


Healy, a medical doctor, was involved with a partner in a medical practice and in a building development company, Coole Property Holdings Ltd. Ulster Bank financed Coole’s development project. Healy signed a personal guarantee for €3.4 million of Coole’s borrowing from Ulster. In 2007, Healy’s partner paid him €2.2 million to buy him out of the practice and the development. Healy lodged the proceeds with Ulster Bank. In 2008, Ulster used a balance of US$1 million belonging to Healy to offset against a debt owed by Coole. Healy issued High Court proceedings against Ulster for unlawful conversion, breach of contract, negligence and deceit.

High Court

Healy gave evidence that he and his mother attended a meeting with Ulster prior to his deposit of the proceeds. Both Healy and Mrs Healy gave evidence that the Ulster manager, Leech, gave an assurance that Healy was “in the clear” with Ulster. Leech gave evidence that he did not recall Mrs Healy being present at the meeting, that he did not recall what was said, but that he would not have given such an assurance and that he did not have authority to do so. Dismissing Healy’s action, the trial judge accepted Leech’s evidence over Healy’s. However, the trialjudge accepted that Mrs Healy was at the meeting but did not address her evidence that Leech gave the assurance.

Healy appealed that decision.

Supreme Court

Relying on Hay v O’Grady [1992] 210, Ulster argued that the Supreme Court could not overturn the trial judge’s determination, where there was “a clear statement… by the trial judge as to his findings of primary fact, the inferences to be drawn and the conclusion that follows” [215].

However, Hardiman J reviewed the case law applying Hay v O’Grady, such as Clarke J’s statements that a trial judge’s decision could be overturned where there is a “a failure to engage with a significant element of the evidence put forward” Wright and Anor v AIB Finance and Leasing, Gearys Garage and John Deere [2013] IESC 55 [7.10]; or where”there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts” Doyle v Banville [2012] IESC 25 [2.7].

Finding that the trial judge failed to engage with Mrs Healy’s evidence, and that her evidence was material and significant, the Court allowed Healy’s appeal and ordered a retrial before the High Court.

Quinn v IBRC: whether a contract, illegal by statute, is void or voidable depends on the public policy purpose of the statute

???????????????????????????As the issue in this case–whether contracts which are illegal under statute are enforceable–had not been recently considered in detail in this jurisdiction, the Court was “free to consider the proper approach to adopt in the light of principle and precedent”. The Court decided that the approach which provides the greatest level of certainty is one which considers whether the public policy purpose of the statute requires that any contract which contravenes the statute must be held to be void or voidable. The proper approach is statute specific and not case specific. Clarke J writing for a unanimous Court (here) set out the issues to be considered:

1. … [W]hether the relevant legislation expressly states that contracts of a particular class or type are to be treated as void or unenforceable.  (para. 8.9)

2. Where, however, the relevant legislation is silent … the court must consider whether the requirements of public policy … and the policy of the legislation concerned, … gleaned from its terms, … require that, in addition to whatever express consequences are provided for in the relevant legislation, an additional sanction or consequence in the form of treating relevant contracts as being void or unenforceable must be imposed. (para. 8.9)

3. In assessing the criteria … the court should assess at least the following matters:-

3(a) Whether the contract in question is designed to carry out the very act which the relevant legislation is designed to prevent (para. 8.32)

3(b) Whether the wording of the statute itself might be taken to strongly imply that the remedies or consequences specified in the statute are sufficient to meet the statutory end. (para. 8.34)

3(c) Whether the policy of the legislation is designed to apply equally or substantially to both parties to a relevant contract or whether that policy is exclusively or principally directed towards one party. Therefore, legislation which is designed to impose burdens on one category of persons for the purposes of protecting another category may be considered differently from legislation which is designed to place a burden of compliance with an appropriate regulatory regime on both participants. (para. 8.37)

3(d) Whether the imposition of voidness or unenforceability may be counterproductive to the statutory aim as found in the statute itself.(para. 8.39)

4. The aforementioned criteria or factors are, for reasons which will become apparent, sufficient to resolve this case. However, the following further factors may well be properly taken into account in an appropriate case:-

4(a) Whether, having regard to the purpose of the statute, the range of adverse consequences for which express provision is made might be considered, in the absence of treating relevant contracts as unenforceable, to be adequate to secure those purposes. (para. 8.44)

4(b) Whether the imposition of voidness or unenforceability may be disproportionate to the seriousness of the unlawful conduct in question in the context of the relevant statutory regime in general. (para. 8.47)

5. Doubtless other factors will come to be defined as the jurisprudence develops.


In September 2005, Sean Quinn began to build an interest in Anglo Irish Bank through contracts for difference (CFD). The Quinn group transferred funds into a company called Bazzely which was registered in Maldeira to facilitate that. Originally Bazzely purchased CFDs in a number of companies, but from late 2006 it began to dispose of CFDs in all but Anglo and used the profits and increased funding from the Quinn Group to increase its exposure to Anglo. From June 2007 the share price for Anglo began to fall, and by that stage Bazzely held CFDs for 24% of Anglo shares. It was at that stage that Sean Quinn made Anglo aware of the situation. Due to the fall in share price, Bazzely was being called upon to make payments on the share losses. In September 2007, Anglo loaned the Quinn Group €100 million for that purpose. In December 2007, Anglo loaned Quinn Finance an additional €500 million to discharge loans made by the Quinn Group to discharge share losses. The Quinn children signed personal guarantees for that loan. In March 2008 Anglo provided further loans of €350 million. In June 2008 Quinn needed an additional €200 million from Anglo in order to prevent having to make disclosures of its interests in Anglo. Anglo agreed to provide that funding in order to prevent negative publicity and in order to protect its share price. However, it imposed a pre-condition that the Quinn children pledge their shares in Quinn Group properties as security. The Quinns now claim that those guarantees are unenforceable due to the illegality of the loans provided by Anglo in breach of s 60 of the Companies Act 1963 (here) and the Market Abuse (Directive 2003/6/EC) Regulations 2005 (MAR) (relevant sections set out in judgment at [11]).

High Court

In December 2011, the High Court (Kelly J) granted IBRC (Anglo) leave to have a preliminary issue tried prior to commencement of full proceedings: whether the Quinns could rely on a defence of illegality even if they could prove the illegality claimed. Anglo’s position was that s 60 and MAR provide complete codes by which breaches can be remedied, and s 60(14) provides that a contract will be voidable only by the company affected.

In February 2012, Charleton J delivered a judgment on that issue (here). He held that the 1963 Act is not self contained in its remedies and the Quinns should not be shut out from relying on a defence of illegality–if they can prove the illegality claimed. Anglo appealed that decision to the Supreme Court.

Supreme Court

After an exhaustive review of the case law in this and other common law jurisdictions, the Court set out the criteria to be considered in such a case (above). On application of that criteria to this case, the Court determined that:

  1. Neither s 60 nor MAR expressly render any contracts void or voidable.
  2. S 60(14) sets out when a company can void an illegal contract, and to imply that a contract would be void otherwise under that Act could prevent a company from recovering money lent to purchase shares and could harm the interests of company shareholders or creditors. Likewise, the purpose of MAR is to protect investors, and the automatic voiding of a contract could have the opposite affect to the public policy purpose of the statute.
  3. Although the contracts at issue do carry out the act which s 60 and MAR are designed to prevent, the clear wording of the statutes imply that the remedies provided for are sufficient. And automatic voidness or unenforceability could be counterproductive.
  4. The statutes in question provide for criminal, administrative and civil remedies which together are sufficient to fulfill the public policy purpose of the statutes.

The Court allowed the appeal holding that, on the case argued, even if the Quinns could prove the claimed illegality by Anglo, they could not rely on any breaches of s 60 or MAR to invalidate the guarantees given by them as security.





McMullan Bros v McDonagh: estoppel cannot arise from a bare assumption

keep-calm-and-argue-estoppelThe Court rejected (tenant) McDonagh’s argument that, as McMullan Brothers Limited (Maxol) had previously carried out repairs and maintenance on the plant and equipment at the leased business premises, it was estopped from relying on the terms of the lease that obliged McDonagh, as lessee, to carry out repairs and maintenance (here).


In 2000, McDonagh purchased a lease on a service station and business units, owned by Maxol, from Cosgrave, the previous tenant. In the years prior to that, Murphy was operating and selling petrol from the service station on licence from Cosgrave; he remained there after McDonagh purchased the lease. (Neither Cosgrave nor Murphy were party to the proceedings). The terms of the lease obliged Cosgrave/McDonagh to carry out inspection of and maintenance of the plant and equipment on the site, and to replace any equipment which needed to be replaced. Prior to McDonagh purchasing the lease, however, Maxol had carried out yearly inspections of the property and had maintained and replaced plant and equipment. Maxol also carried insurance on the property even though it was the lessee’s obligation to do so. At no stage  though did Maxol invoice McDonagh or Cosgrave for either. Plus, Maxol were aware since 1998 that an aluminium valve from one of the petrol tanks would need to be replaced by a gunmetal substitute. In January 2003, it was discovered that petrol had leaked into the ground. That necessitated the closure of the service station and caused the adjoining supermarket and restaurant to go out of business. (There are separate proceedings relating to those losses).

In the High Court, Smyth J determined that the cause of the leak was corrosion of the aluminium valve. He found that under the terms of the lease McDonagh was responsible for inspection, repair and replacement of that valve and was therefore liable for the losses caused by the leak. However, he held that Maxol was liable for 40% contributory negligence as it was aware that the valve would need to be replaced and did not inform McDonagh. McDonagh appealed that decision to the Supreme Court.

Supreme Court

McDonagh argued that (1) as tenant he had no obligation to repair; (2) the licencee who operated the forecourt owed any responsibility to repair that might exist and Maxol was estopped from refuting that: and (3) if he did have an obligation to repair, a larger portion of responsibility rested with Maxol. Dismissing the appeal, Charleton J recited the appropriate authorities. There was no dispute that authority for the construction of the lease was Analog Devices BV v Zurich Insurance Company [1998] 1 IR 274: how a reasonable man with full background knowledge would interpret the terms. There was a blank page where there should have been a list of equipment which the tenant was responsible for maintaining; however, in another term there was a list of items for which the tenant was not responsible. As no term of a contract can be considered in isolation, the tenant was responsible for all equipment that was not exempted. The modern application of estoppel is set out in Snell’s Equity:

Where by his words or conduct one party to a transaction freely makes to the other a clear and unequivocal promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) or was reasonably understood by the other party to have that effect, and, before it is withdrawn, the other party acts upon it, altering his her position so that it would be inequitable to permit the first party to withdraw the promise, the party making the promise or assurance will not be permitted to act inconsistently with it.

Although Maxol was aware that there was a licencee operating the forecourt, and even though it had assumed responsibility for repair and replacement of equipment prior to McDonagh purchasing the lease, it had not made a clear representation that it would not seek to enforce the covenants to repair contained in the lease: “Estoppel cannot arise from a bare assumption” [30]. Therefore it was not estopped from relying on that covenant. Neither was there circumstances which could have given rise to estoppel by convention, as in Courtney v McCarthy [2008] 2IR 376. Charleton J also found that Smyth J had sufficient facts before him in the High Court justify the apportion liability as he did, and the Court would not interfere with that holding either.

Ryanair v Billigfluege; Ryanair v On the Beach: use of website binds defendants to its terms and conditions

termsAlthough Article 2 of the Brussels I Regulation specifies that a person can only be sued in the courts of the Member State in which he is domiciled, Article 23 allows an exemption for contracting parties to nominate the courts of another state as having jurisdiction. This can be done by agreement or by industry custom and practice. The standard of proof required by a plaintiff to show such an agreement is the balance of probabilities. A defendant appealing the decision of a court of a Member State (other than the state of domicile) that it has jurisdiction bears the burden of proving otherwise.


Billigfluege and On the Beach are both online air travel booking sites. Ryanair is suing both in the Irish High Court (in separate actions) for breach of the terms and conditions for the use of its website. Both defendants challenged the jurisdiction of the Irish High Court to hear the cases.

In the High Court, Hanna J determined from affidavit evidence and contractual analysis that, by using Ryanair’s website, Billigfluege had accepted Ryanair’s terms regarding the jurisdiction of the Irish courts. Also, Laffoy J determined (also from affidavit evidence) from custom within the airline online booking industry that there is a general practice of accepting terms and conditions by the ticking of boxes; by using Ryanair’s website, On the Beach accepted the terms giving jurisdiction over disputes to the Irish Courts. Both defendants challenged the power of the court to make those findings without hearing oral evidence.

Supreme Court

Writing for the Court (here), Charleton J held that the finding by the High Court of its jurisdiction to hear these cases was not an exercise of discretion but a finding of fact. Therefore the test to be applied on appeal was that from Hay v O’Grady: that the Court could not overturn a finding of fact supported by credible evidence. Both trial judges had sufficient evidence on affidavit to support the findings made. And neither appellants had demonstrated an error in the High Court’s findings. He dismissed both appeals.

Elliott Construction v Irish Asphalt: incorporation of contractual terms by reasonable notice

termsWhere dealings are between corporations, for terms and conditions to be incorporated into a contract by reasonable notice, notice must be given to a person with authority to vary the terms and conditions of the contract (here).


The facts of this case are similar to those in Noreside, and Irish Asphalt raised the same defences. In this case, however, it also argued that it had given Elliott reasonable notice of its terms and conditions as it had sent credit notes to Elliott’s accounts department which contained the terms relied upon.

In the High Court (here) Charleton J held that when contracts are between corporations, to incorporate terms by reasonable notice, notification must be given to a person within the corporation with authority to negotiate and vary terms. In this case, notification by way of a credit note, for a small amount, to a junior person within Elliott’s accounts department was not sufficient notice to incorporate the terms relied upon into the contract. Irish Asphalt appealed to the Supreme Court on that issue, among others.

On review of the authorities, the Court dismissed the appeal and affirmed the decision of the High Court relating to reasonable notice.

However, the Court accepted an argument by Irish Asphalt that the High Court finding of an implied term of merchantability in the contract required a reference to the ECJ as to how that complied with EU law. Irish Asphalt argued that by making that finding, the trial judge has introduced new standards to be applied to the product in question in a manner which is not compatible with the Technical Standards Directive.

Noreside Construction v Irish Asphalt: for a delivery docket to have contractual effect it must reference specific terms and conditions

termsFor a delivery docket to have contractual effect it must reference specific terms and conditions: a bland reference to terms and conditions being available on demand is not reasonable notice. And for incorporation of terms and conditions by custom and practice within an industry, such custom and practice must be universally accepted within that industry (here).


Noreside purchased quarried stone from Irish Asphalt which was used in the foundation of a construction project. The stone contained pyrite which caused structural defects in the finished building. Noreside issued proceedings in the High Court for an indemnity by Irish Asphalt against any claim arising from the use of the defective material. Irish Asphalt claimed that: each delivery was an individual contract for sale; each delivery docket stated “This material is sold subject to the terms and conditions available on request”; those terms and conditions were incorporated into each contract for sale and limited its liability to the cost of replacement material.

High Court

Finlay Geoghegan J held (here) that: there was one contract for sale agreed at senior management level between the parties; the terms relied upon by Irish Asphalt were not incorporated into that contract; the purpose of the delivery docket was to record supply; and the operatives who arranged and signed for orders could not vary the terms of the contract by way of a delivery docket. Therefore there was no limit to Irish Asphalt’s liability. Irish Asphalt appealed that decision to the Supreme Court.

Supreme Court

Dunne J, dismissing the appeal, held that there was a master contract, and each delivery constituted a subsidiary contract for sale. A delivery docket can be a contractual document, and clear reference to specific terms and conditions on a delivery docket can incorporate those into a contract. That was not the case here, though: a bland reference to terms and conditions being available on demand will not suffice. Reasonable notice of terms and conditions over the course of dealings can incorporate those into a contract, but Irish Asphalt did not make a reasonable effort to notify a person of authority within Noreside of its terms and conditions. Finally, terms and conditions can be incorporated into a contract by reference to custom and practice within an industry. But such custom and practice must be universally accepted within an industry, and the evidence at trial did not establish that the terms and conditions relied upon by Irish Asphalt are universally accepted within that industry.

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