An Cumann Peile Boitheimeach Teoranta (The Bohemian Football Club Ltd) v Albion Properties Ltd and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice John Edwards
Judgment Date07 Nov 2008
Neutral Citation[2008] IEHC 447
Docket NumberNo. 4902 P/[2007]

[2008] IEHC 447

THE HIGH COURT

No. 4902 P/[2007]
Cumann Peile Boitheimeach Teoranta (Bohemian Football Club Ltd) v Albion Properties Ltd & Ors

BETWEEN

AN CUMANN PEILE BOITHEIMEACH TEORANTA (THE BOHEMIAN FOOTBALL CLUB LIMITED)
PLAINTIFF

AND

ALBION PROPERTIES LIMITED ALBION ENTERPRISES LIMTIED

AND

PASCAL CONROY
DEFENDANTS

COMPANIES ACT 1963 S8

EUROPEAN COMMUNITIES (COMPANIES) REGS 1973 SI 163/1973

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SUPERMACS (IRL) LTD & MCDONAGH v KATESAN (NAAS) LTD & SWEENEY 2000 4 IR 273 2001 1 ILRM 401 2000/17/6423

TRIATIC LTD v CORK CO COUNCIL 2007 3 IR 57 2006/56/11924 2006 IEHC 111

WALFORD & ORS v MILES & ANOR 1992 2 AC 128 1992 2 WLR 174 1992 64 P & CR 166

VON HATZFELDT-WILDENBURG v ALEXANDER 1912 1 CH 284

BLACK v KAVANAGH 1974 108 ILTR 91

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HAUGHAN & ORS v RUTLEDGE 1988 IR 295 1988/2/314

SNELL, MCGHEE SNELL'S EQUITY 28ED 1982

RAMSDEN v DYSON & THORNTON 1866 1 LR HL 129

DORAN v THOMAS THOMPSON & SONS LTD 1978 IR 223 1979 113 ILTR 93

RYAN v CONNOLLY 2001 1 IR 627 2001 2 ILRM 174 2001/21/5755

OWENS v DUGGAN UNREP HARDIMAN 2.4.2004 2004/41/9455

GILLETT v HOLT 2001 CH 210 2000 3 WLR 815 2000 80 P & CR D3

MCCARRON v MCCARRON UNREP SUPREME 13.2.1997 1997/4/1414

STATUTE OF FRAUDS (IRELAND) 1695 S2

LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989 (UK)

KINANE v MACKIE-CONTEH 2005 2 P & CR DG3 2005 EWCA CIV 45

COBBE v YEOMAN'S ROW MANAGEMENT LTD & ORS 2006 1 WLR 2964 2007 1 P & CR 8 2007 1 P & CR DG14 2006 EWCA CIV 1139

LLOYD'S BANK PLC v ROSSET & ANOR 1990 1 AER 1111

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CULLEN v CULLEN 1962 IR 268

MCMAHON v KERRY CO COUNCIL 1981 ILRM 419

JUDGMENT of
Mr. Justice John Edwards
1

delivered on the 7th day of November, 2008.

2

These proceedings concern certain lands and premises in a suburb of Dublin which is known formally as Phibsborough, although this name is sometimes informally abbreviated to Phibsboro. Both names are to be found in documents that have been produced in evidence in this case, and both names are used in this judgment. They are used interchangeably and nothing turns on whether the formal or informal name is used in any particular instance.

3

The plaintiff is a company limited by guarantee. The main object of that company, as expressed in its memorandum of association, is to promote the game of association football, through a football club known as "The Bohemian Football Club" in the premises known as Dalymount Park, Phibsborough, Dublin and other premises which may be acquired for that purpose. The premises known as Dalymount Park constitutes a substantial football stadium in the heart of Dublin 7 and it is, and has for generations been, the home ground of the Bohemian Football Club. Dalymount Park is in the ownership of the plaintiff company as are certain surrounding lands.

4

Dalymount Park is adjoined along its eastern boundary by a shopping centre, owned and operated by the first named defendant, and known as the Phibsboro Shopping Centre. The second named defendant is a property development company. The third named defendant is a business man and property developer and he is, and was at all material times, the principal beneficial owner of the first and second named defendants.

5

The proceedings herein arise out of a course of dealings between the plaintiff and the defendants or some combination of them. Because of a degree of uncertainty on the part of the plaintiff concerning the exact legal person with whom it was dealing the plaintiff has, on anex-abundante cautela basis, sued all three defendants herein. Nothing substantive turns on this. Although it is pleaded that the first and third named defendants are incorrectly sued the point was not pressed before me. All of the defendants have been represented by the same legal team and a unitary case has been put forward on their behalf. In the circumstances I propose to defer making any ruling on the pleading point until after I have delivered my judgment. However, for convenience I propose hereinafter to refer to the plaintiff company simply as "Bohemians" and to the defendants collectively simply as "Albion".

6

The course of dealings in question took place between 2001 and 2006 respectively and concerned the potential sale of part of Dalymount Park to Albion. Bohemians contend that the dealings between the parties never moved beyond pre- contractual negotiations and there was no concluded agreement between the parties. They contend that by October, 2006 such negotiations as existed between the parties had broken down and proceeded no further.

7

It is a matter of some significance that subsequent to this Bohemians entered into an agreement with a third party, namely Danninger Limited, for the sale of the entirety of Dalymount Park to that company for a consideration of €35 million in cash plus the provision of a new stadium (in an alternative location on the north side of Dublin), the entire package representing a total consideration in the order of €67.5 million.

8

Conversely, Albion contends that an agreement was concluded between the parties as early as February of 2003 and that a number of further agreements varying that first agreement were subsequently concluded.

9

Arising out of all of this, Albion issued High Court proceedings against Bohemians seeking specific performance of the said alleged agreements. These proceedings bore record number 2007 Number 4759P. Within days of this, Bohemians issued its own High Court proceedings against Albion, bearing record number 2007 No. 4902P (the record no of the present proceedings), claiming a declaration that there is no concluded or enforceable contract in existence between the parties in relation to the sale of any lands of the plaintiff at or in the vicinity of Dalymount Park. Bohemians proceedings further claimed an injunction restraining Albion from asserting that they have a concluded or enforceable contract for the sale of any lands of the plaintiff at or in the vicinity of Dalymount Park, or from seeking to interfere with the plaintiff's contractual negotiations or contract with the third party. Various ancillary reliefs were also sought on both proceedings.

10

It was then sensibly decided between the parties that it was not desirable to allow both actions proceed independently. Accordingly the proceedings were de facto reconstituted on the basis that the action initiated by Albion would be pursued by way of a counterclaim to the Bohemians proceedings.

11

The Phibsboro Shopping Centre was originally developed by Gaylon Weston when he came to Ireland in the 1960s. The initial anchor tenant was Quinnsworth. The shopping centre was managed for many, many years by Gaylon Weston's agent, Tom Murphy, through a company known as Chatham Management Limited. When Quinnsworth sold out to Tesco, the shopping centre was put up for sale and it was ultimately acquired by Albion. Thereafter Chatham Management Limited continued to run the Phibsboro Shopping Centre on behalf of Albion. Tom Murphy remained at the helm of Chatham Management Limited until about four years ago when he was tragically killed in a car crash. At some point in the latter half of the 1990s Tom Murphy suggested to Pascal Conroy that Albion should undertake a redevelopment of the Phibsboro Shopping Centre. Mr. Conroy was receptive to the idea and in furtherance of it, Albion set about the acquisition of additional land.

12

In or about 1998 (there was some inconsistent evidence as to exactly when, but nothing turns on it) Bohemians sold the east terrace of Dalymount Park, save for a strip of ground 1.8m wide nearest the pitch, to Albion. Since purchasing the east terrace Albion has not used it for any purpose and they have allowed Bohemians continue to use it on a temporary basis as a gesture of good will towards the club. Accordingly, for some time after the sale Bohemians used it to accommodate spectators at football matches as they had in the past. However, they eventually had to stop using it for that purpose due to safety concerns arising from the structure's age and condition. Since then Bohemians have used it for the more limited purposes of accommodating advertising hoardings and providing camera positions for television and film crews. A site on the North Circular Road, referred to as the Kelly's Carpetdrome site, was also acquired by Albion. Having acquired these additional properties, Albion engaged a firm of architects, namely Project Architects, to do a feasibility study in relation to the proposed redevelopment of the shopping centre. Tesco, the current anchor tenant, was approached to ascertain its attitude. It should be pointed out that although Albion owns most of the shopping centre, Tesco actually own their own shop plus a small yard at the back. Tesco were quite co-operative and enthusiastic about the proposed redevelopment of the shopping centre. However, they made it plain that if it was to happen they would require to be provided with proper loading and unloading facilities. The existing facilities available to them for these activities were sub optimal. They wanted any redevelopment to incorporate a docking facility for articulated lorries and sufficient clear space in front of this to provide a safe turning circle for these lorries to enable them to manoeuvre safely and...

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1 cases
  • Prunty v Crowley
    • Ireland
    • High Court
    • 30 May 2016
    ...2004) and to that of Edwards J. in An Cumann Peile Boitheimach Teoranta (The Bohemian Football Club Ltd.) v. Albion Properties Ltd. [2008] IEHC 447 (‘the Bohemians case’). 75 On behalf of the defendants, Mr. Ó'Scanaill SC submits that there was no concluded contract and that the doctrine of......

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