Beshoff Brothers Ltd v Select Service Partner Irl. Ltd

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 28 July 1998
• Neutral Citation: [1998] IEHC 122
• Date: 28 July 1998
• Court: High Court
• Docket Number: No.8102 P/1998

[1998] IEHC 122

THE HIGH COURTM

No.8102 P/1998

BESHOFF BROTHERS LTD v. SELECT SERVICE PARTNER IRL. LTD

BETWEEN

BESHOFF BROTHERS LIMITED

PLAINTIFF

AND

SELECT SERVICE PARTNER IRELAND LIMITED

DEFENDANT

Citations:

DUBLIN PORT & DOCKS BOARD V BRITANNIA DREDGING CO LTD 1968 IR 136

O'NEILL V RYAN 1992 1 IR 191

Abstract:

Motion — Specific performance — Whether to enforce agreement — Plaintiff fish and chip shop operator — Tender for catering concession at Dublin airport — Intention of parties — Memorandum of agreement signed by parties — Defendant later discovered it had agreement with other company not to undertake interest in similar business — Mistake — Conflicting contractual obligations — Balancing of hardship which parties claimed they would suffer — Whether damages an equivalent to specific performance decree.

The hardship anticipated (but not necessarily certain) by the defendant as a consequence of its breach of its agreement with the other company was not of the order of hardship which justified a court in refusing a decree of specific performance to which a plaintiff was otherwise entitled. Against this hardship was the hardship of the plaintiff if a decree of specific performance was refused. The plaintiff would be deprived of an enhanced opportunity of procuring a premier international showcase for its fish and chip outlet. The High Court so held in saying that damages were not an equivalent remedy to a decree of specific performance.

O'Sullivan J.

1 The Plaintiff is a well-known fish and chip outlet operator and seeks to compel the Defendant to include its name and brand as an element in a forthcoming tender for the catering concession in Dublin Airport to be submitted to Aer Rianta before the end of August. This application is made to enforce an agreement dated the 24th June 1998 of which a memorandum of agreement has been signed by the parties. Because this memorandum, at Clause 8. refers to the intention of the parties to"enter into a more formal agreement subsequently"it has been referred to as a "heads of agreement",although it is not so self-styled.

2 Subsequent to this agreement, and I accept in good faith, the Defendant discovered that it had an overall agreement with Harry Ramsden plc which is currently in existence and whereby it has agreed:-

".…for itself and on behalf of its group companies not… to undertake or become concerned in or have any interest in any capacity whatsoever in any fish and chip business in any company in the world...."

3 Simply put the Defendant now says that it has two conflicting contractual obligations and that any Court Order compelling it to specifically perform its contract with the Plaintiff will cause it to be in breach of its agreement with Harry Ramsden plc.

4 It accepts that it is or intends to be in breach of its agreement with the Plaintiff, but it says that the Court should not make an interlocutory mandatory Order requiring it to specifically perform that agreement for the following reasons:-

5 1. The agreement is not complete: specifically there is no termination clause. Clearly any reasonable termination clause would at most allow one year's termination period and since it is not intended that the Plaintiff's outlet would open prior to the year 2000, the agreement could - at least arguably - be terminated prior to that date. An Order directing inclusion of the Plaintiff in the Defendant's tender would,...