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.

 

Background

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.

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.

Background

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.

 

Fermoy Fish v Canestar: fiduciary duty owed by firm contracted to manage client accounts

AAEAAQAAAAAAAADYAAAAJDg4MzI3Mzk0LTJkYWYtNDNlOC1hNGMzLTE4ZGE3OGRlMGNiMwIn this case, the Court held that as Canestar was under contract to manage client accounts for Fermoy Fish and to collect payment from its customers it did owe Fermoy Fish a fiduciary duty to pass on all payments received. But the breach of that duty by failure to pass on payments received from Fermoy Fish’s clients did not entitle Fermoy Fish to withhold payment contractually due to Canestar for management services.

Background

Fermoy Fish supplied fish to Canestar, which it packaged and sold to major retail groups. Canestar got into financial difficulty and owed Fermoy Fish almost €900,000. The companies reached an agreement whereby Fermoy Fish would purchase Canestar’s assets and goodwill and pay it to manage the client accounts for two years in return for a management fee plus bonus payments should they achieve set sales figures. During the period of the contract Canestar used €480,000 of payments received from Fermoy Fish’s customers to discharge its own debts, and Fermoy Fish withheld payments contractually due to Canestar under the contract.

High Court

Fermoy Fish issued High Cort proceedings seeking, firstly, a Mareva Injunction, and secondly, an order for payment from Canestar. The High Court granted the injunction pending judgment after full hearing. Canestar issued a counterclaim seeking judgment for unpaid management fees and commission. The High Court rejected Fermoy Fish’s argument that Canestar owed it a fiduciary duty and also granted Canestar judgment for €420,000 against Fermoy Fish. Fermoy Fish appealed that decision to the Supreme Court.

Supreme Court

Dunne J (here) held that as the High Court found as matters of fact that it was not within the spirit of the agreement between the parties that Canestar could withhold payments and that there was a clear obligation on Canestar to lodge payments on Fermoy Fish’s account,  the trial judge erred in finding that Canestar  did not have a fiduciary duty towards Fermoy Fish. And as the trial judge had determined that Canestar had wrongly withheld money from Fermoy Fish it had breached that fiduciary duty.

However, Fermoy Fish could produce no authority before the Court to the effect that Canestar’s breach of duty entitled it to retain payments due under the contract for services rendered. Therefore the Court did not overturn the High Court order granting Canestar judgment against Fermoy Fish (plus interest), except to vary the sum owed (to €150,000) due it finding that Canestar had not achieved its sales target to entitle it to the bonus payments.

Gunning v Sherry: Court dismissed lay litigant’s appeal against Isaac Wunder Order

isaac-wunderIn this judgment by Laffoy J (here), the Court refused Gunning’s appeal against the High Court’s grant of an Isaac Wunder Order prohibiting her from issuing any further proceedings–even though she had only issued one set of proceedings. The Court agreed with the finding of the High Court that the proceedings were an abuse of process and “an attempt to re-litigate matters which have already been judicially finally determined”.

 

Background

In 1982, James Gunning made his will appointing his daughter Eileen (Appellant) as executrix. He devised half of all his property, real and personal, to his wife and the other half equally between his two daughters. He died in 1984, and a Grant of Probate was issued to Gunning in 1985. Part of the estate consisted of the family home which he held on a fifty year lease which commenced in 1935 and had a yearly rent of £5. Despite the lease expiring n 1985, the Widow continued to reside in the property afterwards. In 1991, Gunning returned from living abroad, with her daughter, to reside with her mother. In 1998, Gunning and her mother made a joint application to the Land Registry to be named as owners of the property under adverse possession. In 2000, however, the Land Registry treated that application as abandoned, as the Widow made another application for sole ownership under adverse possession. That application was also later treated as abandoned due to failure on her part to respond to correspondence.

In 2001, the Widow issued proceedings for an ejectment order claiming that she had sole possession of the property until her daughter moved in under licence. The Circuit Court held, though, that she had not acquired title under adverse possession. Then, in 2003, the Widow issued High Court proceedings under the Succession Act 1965 seeking to have the Grant of Probate revoked and to have her Personal Representative (Sherry) appointed administrator of the estate. Smyth J granted that order. And, in his judgment, he noted that Gunning had not informed the Widow of her right to have the property appropriated to her in satisfaction of her share of the estate, that it came to the court’s attention that Gunning had sought to acquire the freehold title of the property for her own benefit, and he held that that she had not observed her duties as a trustee (Gunning claimed to have identified the successors in title to the fee simple and to have purchased that). The Widow died in 2005, leaving her interest in the property to her other daughter, Mary, and the rest of her estate to be divided equally between her two grand children.

In 2007, Sherry issued Circuit Court proceedings seeking possession of the property from Gunning and delivery of all title documents in her possession. The order was granted, and affirmed by the High Court on appeal. In 2009 the Circuit Court issued an execution order. In 2010 the Sheriff ejected Gunning from the property. However, she later broke back in to the property and was imprisoned for contempt of court.

High Court

Gunning issued the proceedings to which this appeal relates in November 2010. She issued a plenary summons against Sherry for the return of the keys of her home, an order that Sherry not interfere with her property and also seeking damages. The basis of her action was that she had a superior title to the property and the High Court order was secured by fraud. Sherry brought an application seeking to have the proceedings dismissed. He claimed that it was frivolous and vexatious, an abuse of process and an attempt to re-litigate a case that was decided. He also sought an Isaac Wunder Order.

At hearing in May 2011, Hogan J decided to deal with Sherry’s application first. He adjourned proceedings until June 2011 to allow Gunning to produce evidence of fraud and of her superior title to the property. She had not done so by her next court date, but she persisted with her claim. The case was adjourned again until July, at which date Gunning alleged that Hogan J had a conflict of interest in the case. Hogan J adjourned proceedings to allow Gunning to raise that matter with the President of the High Court. At the next hearing in October 2011, Cross J determined that Hogan J had shown absolutely no bias against her and was, in fact, very indulgent towards her as a lay litigant and dismissed the application for his removal. The case went to hearing in February 2012. On that date, Gunning was still persisting with her claims, but she presented no evidence before the court and was requesting another adjournment. Hogan J (here), therefore, struck out her proceedings as an abuse of process and granted Sherry the order he sought.

Hogan J’s reasoning was that, there was no grounds on which she could hold title to the property. Even if she had purchased the title to the property (which she claimed to have done in 2002), she did so at a time when she was executor of the estate to which she had a fiduciary duty. Therefore, under the rule from Gabbett v Lawder (1881) 11 LR Ir 295, she could only have held the property in trust for the beneficiaries of the estate. Gunning appealed that decision on grounds that she was not given a fair hearing or no hearing at all.

Supreme Court

On appeal, The Court held that Gunning had not established that she was not given a fair hearing, and in fact found that the contrary was the case. And, in the circumstances of the case, the order made by the trial judge was appropriate: through her participation in various proceedings, Gunning had incurred liabilities which will have dissipated her interest in the estate and may effect the entitlement of other beneficiaries, including her daughter. And although she had only issued one set of proceedings, the Court considered the order prohibiting her form issuing further proceedings to be appropriate.

Minister for Communications v Figary Watersports: one who seeks equity must do equity

lady-justiceUnder s 52 of Deasy’s Act (Landlord and Tenant Law Amendment Act, Ireland 1860) a landlord can take a special action for ejectment where one full year’s rent is in arrears. However, s 60 provides that proceedings will be stayed if the tenant pays the rent due plus the landlord’s costs. Under s 71, the court may “give such relief therein as a court of equity might have done”. In this case, the Court held that, in the interest of fairness and justice, for Figary to avail of the provision of s 60 he must pay all rent in arrears–including arrears for which the Minister was statute barred from claiming.

Background

In 1993 Figary (a company) entered a 99 year lease with the Minister for the Marine for eight acres of foreshore in Fahan, County Donegal for the purpose of constructing a marina. Figary was to submit plans for the marina which were subject to the Minister’s approval. No work was carried out until 1998, though, and no rent was paid to the Minister. In July 1998, the Minister issued a forfeiture notice under s 14 of the Conveyancing Act 1881. However, in 2000, the Minister’s Department wrote to Figary confirming that the lease was active, subject to a number of conditions concerning the approval of plans, the provision of a bond and the appointment of consultant engineers. Thereafter, the marina was constructed, and it was opened in 2002. Despite that, though, during 2001 and 2002 there was acrimony between the parties, mainly in relation to the treatment of dredge sand and Figary’s continued failure to pay rent. And in 2005 it was discovered that the marina encroached onto foreshore not subject to the lease. In October 2005 the Minister issued High Court proceedings seeking to enforce the 1998 forfeiture notice and a judgment for rent arrears. Alternatively, the Minister sought an order for ejectment under s 52 of Deasy’s Act. Figary cross claimed for loss caused by the Minister’s unreasonable refusal of consent to remove dredge sand, unreasonable conditions concerning the provision of a bond and failure to forward Figary’s application for EU funding for the project.

In the High Court (here), McKechnie J held that the Minister could not rely on the forfeiture notice as it was abandoned by consent; that the Minister was entitled to recover the rent due since 1999 only, as recovery of rent due prior to that was barred under the Statute of Limitations Act 1957; and that he would exercise his discretion to refuse forfeiture subject to Figary paying the arrears due. However, he also held for Figary that the Minister had unreasonably withheld consent to the removal of dredge sand and did place unreasonable conditions on the provision of a bond (although Figary was not entitled to damages in either regard). In addition, the Minister was guilty of a breach of statutory duty regarding Figary’s application for EU funding for which he determined that it had a 50% chance of being successful.

The Minister appealed the High Court’s adverse findings to the Supreme Court.

Supreme Court

A three judge panel heard the appeal: Clarke J, Laffoy J and Charleton J. Laffoy J wrote the judgment for the Court (here). She held that, as there was no award for damages from the adverse findings regarding the dredge sand and the conditions put on the provision of the bond, as Figary was not cross appealing, and as it had no effect on the overall outcome of the case it would be a futile exercise for the Court to consider those issues [62, 68]. She determined that the forfeiture notice ceased to exist from 2000 when the Minister confirmed that the lease was active [23-37] and that an a procedure under s 52 of Deasy’s Act is a separate procedure distinct from forfeiture and subject to equitable principles. Therefore, in the interest of fairness and justice, for Figary to avail of a s 60 stay on those proceedings it must pay all rent due–even the arrears which the Minister was statute barred from seeking [38-50]. The Court upheld the High Court’s finding concerning the Minister’s breach of statutory duty to forward Figary’s application for EU funding to the steering committee, but varied the award for damages.

O’Donnell v Bank of Ireland: proprietary interest is a necessary element of a claim for constructive trust

trust-300x220To establish that property is held for him in a constructive trust, the claimant must show, among other things, that he has a proprietary interest in the property (here).

Background

Brian and Mary O’Donnell (the O’Donnells) established a discretionary trust (the Trust) under which their four children (the Children) were potential beneficiaries, and they were “exempted persons”. The Trust owned a company (Vico) which owned the O’Donnells’ home (the Home). The O’Donnels were creditors to Vico for the purchase price of the Home, and they lived there with the Children rent free at the Trust’s discretion. In 2006, the O’Donnells borrowed funds from Bank of Ireland. Vico guaranteed those loans, giving the Home as security. In return, the O’Donnells gave an undertaking not to seek payment of the purchase debt from Vico while the secured debt remained outstanding. The Trustee gave the directors of Vico authority to guarantee the O’Donnells debt.

The O’Donnells defaulted on their BOI loans; BOI demanded possession of the Home.

The Children applied to the High Court for, among other things, an injunction restraining BOI from taking any step on foot of the securities, and a declaration that they are entitled to the beneficial ownership of the Home.

High Court

Dismissing the action, McGovern J held that, at the time the loans were given and secured, Vico was the beneficial owner of the Home; the Trust held the shares in Vico, not an interest in the Home; that the Children showed no evidence of breach of trust by either the directors of Vico or the Trustee; that, as the Children could not establish a proprietary interest in the Home, their claim must fail; and if there was a breach of trust by the directors of Vico, any possible action would be subject to the rule from Foss v Hardbottle: it could only be taken by the company.

Supreme Court

On appeal, the Children re-orientated their case to state that the Trustee had committed a breach of trust in sanctioning the directors of Vico to give BOI the guarantee. BOI was in “knowing receipt” that its security over the Home was in breach of trust and, therefore, held it in constructive trust for the Children [95].

BOI argued that, if there was a breach of trust, any claim would be against the Trustee–not BOI; no breach of trust was demonstrated; and, if there was a breach of trust, there was no evidence that BOI had actual or constructive knowledge of it which could impose a constructive trust [96].

Laffoy J, writing for the Court, held that the first obstacle the Children had to overcome was to demonstrate that the Trust had a proprietary interest in the Home, as Vico had a seperate legal personality to the Trust. To establish that the Trust did have an interest, the Children relied the UK Supreme Court (UKSC) decision in Prest v Petrodel Resources Limited [2013] 3 WLR 1. In that case, the UKSC granted Prest an order transferring properties to her that were held in companies owned solely by her husband, as he held the properties in constructive trust for her. However, Laffoy J quoted Lord Sumption that, in most cases where the corporate veil could be pierced, the facts will disclose a legal relationship which makes it unnecessary to do so; and the small number of cases where it is necessary to do so will have a “highly fact- specific issue” [107]. In Prest the properties were all acquired before PRL began trading, one of the properties was their home, and no rent was paid to PRL for that. The Children argued that this was analogous to their case. The trial judge, however, had dismissed that argument as the Home was owned by Vico at all times. And the Court was prohibited, by the rule from Hay v O’Grady [1992] 1 IR 210, from overturning a finding of fact [108].

The Children also argued that the Trustee acted in breach of trust in allowing the Trust property to be used for the benefit of the O’Donnells, as they were “excluded persons” from benefiting from the Trust. And as BOI was in “knowing receipt” of its security over the Home in breach of trust, it held the Home in constructive trust for the Children [112-113] For that, they relied on Agip (Africia) Limited v Jackson [1989] 3 WLR 1367. The test in that case, however, was that the constructive trustees must have received trust property, in breach of trust, and in knowledge it was trust property transferred in breach of trust [120]. But the trial judge had found, as fact, that the Home did not belong to the Trust, there was no breach of trust, and BOI had no actual or constructive knowledge that the Vico was owned by the Trust.

Against those findings, the Children argued that BOI officials had enough information regarding the ownership of the Home and of Vico to be put on inquiry, and by not taking reasonable steps to enquire about the ownership, it had constructive notice of the breach
of trust [127]. Laffoy J held, though, that this was a challenge to the trial judge’s finding of fact [128]. She was confident that he had credible evidence to support those findings, and that the Court was prohibit by Hay v O’Grady from overturning those findings [133]

Laffoy J held that, even if it could be established that BOI had acquired its security over the Home by breach of trust, only the beneficial owner could pursue an equitable remedy for such a breach. For that, a proprietary interest in the property is fundamental [135]. In all of the authorities relied upon by the Children, the successful applicants for equitable relief had demonstrated a proprietary interest in the property at issue [136]. And throughout proceedings, ownership of the Home was conflated with ownership of the share capital in Vico [140]. The Court dismissed the appeal.

Murtagh v Hannan: specific performance ordered where planning permission is subject to outstanding obligations

9780455232881Here (link to follow), the Court dismissed Hannan’s appeal against the High Court’s order for specific performance of 22 contracts for the sale of properties. The Court rejected Hannan’s argument that an order to complete the sales would be inequitable where the vendor has outstanding obligations regarding the planning permission.

Background

In 2005, Hannan (and others) purchased land and obtained planning permission on it for a retirement village consisting of 48 individual properties. One of the conditions that Cavan County Council placed on permission was that the property owners must upgrade a section of the public foul water pipe. In January 2007, Murtagh purchased the property from Hannan, and Hannan agreed a contract to purchase it back from him with the construction completed. For tax reasons, that contract was later converted to individual contracts for each of the units. The contracts for sale obliged Hannan to complete each sale on production by Murtagh of an architect’s certificate that the property was in compliance with planning permission and ready for occupation.

Cavan County Council was planning to upgrade a public water mains that ran alongside the foul water line to be upgraded. The Council, however, was awaiting funding and would not allow Murtagh to proceed with the upgrade until it was ready to work on the water main at the same time. The Council did approve a temporary connection to the existing foul water pipe and agreed that Murtagh could complete the upgrade at a later date, once the Council had funding to complete its project.

Murtagh (deceased, Murtagh Construction in receivership) completed all of the properties before the contracted date of October 2008. His architect provided certificates that they were ready for occupation and, as far as practicable, complied with the planning permission. By July 2008, though, Hannan had only completed the sale for 26 of the properties, and he refused to complete the sale of the remaining 22 properties. After serving notice on Hannan to complete the contracts, Murtagh brought proceedings in the High Court for specific performance of the remaining contracts. The High Court ordered specific performance. Hannan appealed that decision to the Supreme Court.

Hannan argued that, as Murtagh had not completed the upgrade of the public foul water pipe, the development was not in compliance with the planning permission and was therefore an unauthorised development. Given those circumstances, he argued that he had a right to rescind the contracts, and it would be inequitable for the Court to order specific performance. He also argued that the certificates that Murtagh provided did not satisfy the contractual requirement, as they misrepresented that the development was in compliance with the planning permission.

McKechnie J wrote the judgment for the Court. He held that, as the Council had approved the temporary connection and had an agreement with Murtagh to complete the upgrade once it had funding to work on the water mains, the development was authorised subject to outstanding obligations. Also, as the certificate which Murtagh’s architect provided complied with the broad terms of Murtagh’s contractual obligation, Hannan was contractually obliged to complete the sales.

Dunne J concurred with McKechnie.

Clarke J wrote a concurring judgment (here). He agreed that the proper interpretation of the contract obliged Hannan to complete the sale on production by Murtagh of the architect’s certificate of compliance. He would not conclude, though, that the planning permission had been complied with as far as was reasonable.

PB N [DR Congo] v Minister for Justice and Equality

OLYMPUS DIGITAL CAMERAThe Court (here) granted the Appellant an interlocutory injunction restraining the Minister from proceeding with her deportation, pending a determination of her judicial review of the Minister’s decision not to re-submit her to the asylum process, as she had established an arguable case.

Background

The Appellant, a Congolese, unsuccessfully applied for asylum in 2007 and subsidiary protection in 2009. In 2011, the Minister made an order for her deportation. The Appellant did not challenge any of those decisions. In 2012, the Appellant applied to the Minister for re-submission to the asylum system on grounds that, if deported, she would face persecution as a refused asylum seeker. She based her case on a 2011 report by a UK based charity Justice First’s report on conditions in the Congo for returning asylum seekers.

The Minister refused that application. The Appellant issued judicial review proceedings challenging that decision and, later, made an application to the High Court for an interlocutory injunction preventing the Minister from proceeding with her deportation pending the outcome of the judicial review proceedings. Clark J in the High Court refused to grant the interlocutory relief to the Appellant, who then appealed to the Supreme Court.

Decision

Laffoy J allowed the appeal and granted an order restraining the minister from deporting the Appellant until the determination of the judicial review process. The authorities that she referred to are American Cyanamid Co v Ethicon and Okunade v Minister for Justice. She held that Clark J in the High Court had applied the wrong test or applied the correct test by reference to an inappropriate standard. The test is whether the applicant has demonstrated an arguable case–not that there is a fair issue to be tried. Fennelly and McKechnie JJ concurred.

Fuller & Ors v Minister for Agriculture

9780455232881The Plaintiffs are members of the Civil and Public Service Union (CPSU). In 2003 they took “limited industrial action”. They did not answer phone or fax queries at certain times and did not deal with counter queries at other times. The Minister determined that this constituted an “unauthorised absence from duty” and removed them from the payroll. The Plaintiffs then took all out industrial action, while at the same time issued judicial review proceedings against the Minister’s decision to remove them from the payroll. The dispute was resolved, and the Plaintiffs returned to work after three months. The judicial review proceedings took longer to resolve. It went to the Supreme Court, and the Plaintiffs were successful (Fuller No1).

 

Fuller No2

In this case, the Plaintiffs are seeking full pay and pension contributions for the period during which they were on strike. In the High Court, they claimed that the Minister’s action in removing them from the payroll caused them to be absent from their employment. The Minister accepted that the Plaintiffs were entitled to their pay and pension entitlements up to the time that they withdrew to the picket lines. But he argued that the strike was an escalation of a dispute which involved other issues and therefore the Plaintiffs were not entitled to pay and pension contributions while they were on strike. The High Court dismissed the Plaintiffs case.

 

Appeal

The Supreme Court decided this case on the issue of estoppel. It reviewed the submissions made in Fuller No1. The Minister, in that case, argued that the sole reason for it removing them from the payroll was because of the limited industrial action taken by the Plaintiffs. Fuller No1 was decided on those narrow grounds, and the Court held, here, that it would deprive the Plaintiffs of the fruits of their victory if the Court allowed the Minister to introduce additional arguments in this hearing that it had not raised in the original trial. There are procedures by which parties to a dispute can amend pleadings. The Minister did not use those procedures. The Minister was now estopped from claiming that there were other issues which influenced its decision to remove the Plaintiffs from the payroll. Therefore, the decision of Fuller No1 that the Minister illegally removed the Plaintiffs from the payroll  determined that they were entitled to pay and pension contributions for the period that they were on strike.

 

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