O'Brien v Dromoland Castle Owners Association and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 19 September 2012
• Neutral Citation: [2012] IEHC 407
• Court: High Court
• Date: 19 September 2012

[2012] IEHC 407

THE HIGH COURT

[No. 7134 P/2012]

O'Brien v Dromoland Castle Owners Association Inc & Dromoland Castle Holdings Ltd

BETWEEN

CONOR O'BRIEN

PLAINTIFF

AND

DROMOLAND CASTLE OWNERS ASSOCIATION INC. AND DROMOLAND CASTLE HOLDINGS LIMITED

DEFENDANTS

CHITTY ON CONTRACTS 13ED PARA 19-087

ZURICH BANK v COFFEY & ORS (T/A SEAFIELD HOLDINGS PARTNERSHIP) UNREP FINLAY GEOGHEGAN 28.1.2011 2011/50/14265 2011 IEHC 26

KIRWAN LAW & PRACTICE OF INJUNCTIONS P210-214

LINGAM (ORSE MAHALINGHAM) v HEALTH SERVICE EXECUTIVE (HSE) UNREP SUPREME 4.10.2005 2005/36/7565 2005 IESC 89

ALLIED IRISH BANKS PLC & ORS v DIAMOND & ORS UNREP CLARKE 14.10.2011 2011/3/547 2011 IEHC 505

INJUNCTIONS

Interlocutory injunction

Mandatory injunction - Test to be applied - Contract - Termination - Return of property - Whether party seeking mandatory injunction required to show greater likelihood of good case - Whether balance of convenience favouring presrvation of status quo - Whether reproduction of paintings prohibited under contract - Whether damages adequate remedy - Maha Lingham v Health Service Executive [2005] IESC 89, (Unrep, SC, 4/10/2005) and Allied Irish Banks plc v Diamond [2011] IEHC 505, [2012] 3 IR 549 approved - Zurich Bank v Coffey trading as Seafield Holdings Partnership [2011] IEHC 26, (Unrep, Finlay Geoghegan J, 28/1/2011) considered - Applications refused (2012/7134P - O'Keeffe J - 19/9/2012) [2012] IEHC 407

O'Brien v Dromoland Castle Owners Association Incorporated

Facts: The plaintiff sought to direct the defendant to deliver up possession of the reminder of a collection of paintings valued at valued at £1.395m in Dromoland Castle, the subject of an agreement dated in 1993 and the lawful property of the plaintiff. The plaintiff claimed that the defendant had not cared for his collection and that much damage had been inflicted upon it. The issue arose as to reproductions of the paintings by non -parties and whether there had been a novation of the original agreement.

Held by O' Keefe J. that the defendant had raised a fair issue that there was a novation of the original agreement between the plaintiff and the second named defendant. The Court refused to grant a mandatory interlocutory injunction in respect of the return of the paintings. The Court would ultimately have to determine whether the paintings were held under the terms of the agreement pursuant to a novation or were simply held pursuant to a simple license agreement. On the balance of convenience, the status quo would be preserved.

1 1. This is an application by the plaintiff directing the defendants to deliver up possession to the plaintiff of the remainder of a collection of paintings presently in Dromoland Castle now comprising of 36 paintings which are the subject of an agreement dated 18 ^th August, 1993 and are the lawful property of the plaintiff.

2 2. An injunction is further sought restraining the defendant from preventing the plaintiff from taking possession of the remainder of the collection of paintings, the subject matter of the agreement, or interfering with the plaintiff doing so. Finally, an injunction is sought restraining the defendants from making further copies of any of the paintings of the said collection apparently hanging at Dromoland Castle.

3 3. The first two reliefs which are sought are in the nature of mandatory injunctions whereby the paintings will be handed over to the plaintiff. The third relief that is sought is in the nature of the restraining injunction restraining the defendants from making copies of the painting.

4 4. It must be emphasised at the outset that this is an application for interlocutory relief pending the plenary hearing of the action when the court would be in a position to ascertain the precise nature of the agreement which governs the arrangement whereby the plaintiff entered into an agreement in relation to various paintings with the first named defendant and/or the defendants' entitlement to possession and/or to make productions of the paintings.

5 5. It is clear from the affidavits that have been filed in this case that there are many factual differences between the parties and the resolution of such factual matters must await the trial of the action and the ascertainment of the legal consequences of the relationship between the parties.

6 6. The plaintiff is the eighteenth Baron of Inchiquin. He says he is the owner of a collection of some 45 paintings which have a value for insurance purposes of STG£1.395m. He says that the collection is a unique record illustrating the history of one of Ireland's most noble families.

7 7. On 18 ^th August, 1993, the plaintiff entered into what was a consultancy agreement with the first named defendant whereby he agreed to allow the first named defendant the use of his paintings which at the time were in Dromoland Castle, which was and is a castle and hotel. Eight paintings had been returned to the plaintiff and the collection now comprises some 36 paintings.

8 8. The agreement provided the first named defendant to pay £5,000 per year.

9 9. The agreement provided that each of the parties shall have the right at any time to give notice in writing to terminate the agreement in the event of specified matters occurring as set out in para. 8 of the agreement. Specifically, it provided a right to terminate the agreement:-

"If either party is guilty of any conduct which in the reasonable opinion of the other party is prejudicial to that parties interests."

10 10. It now appears that the first named defendant is no longer the entity which operates the hotel and castle at Dromoland Castle and that it is the second named defendant which operates the hotel business. The court was informed that no relief as such was claimed against such defendant nor was it represented at the hearing.

11 11. In his affidavit, the plaintiff claimed that the defendant had not cared for his collection of paintings since 18 ^th August, 1993, and had caused very considerable damage to be done to them and that the defendant was grossly negligent and reckless with regard to his collection of paintings. He has retained experts to put a monetary value on the damage done. The cost to reinstate them is the sum of STG£256,800. He also claimed that the defendant has abused the gold gilt leafed frames on seventeen paintings and that this will cost an average of STG£2,400 per frame to reinstate the frames.

12 12. He claims that without his permission or knowledge and outside the scope of the agreement, the defendant had advised him that copies had been made of eight of the paintings and that he believes that this copying will continue unless restrained by order of the court.

13 13. He claims that the unlawful copying of the paintings significantly diminishes the value of his art collection.

14 14. He claims that the agreement was validly terminated by his solicitors on 28 ^th May, 2012. This letter claimed that the defendant had done untold damage to the paintings which was continuing and had also made copies unknown to the plaintiff and without his authority. As a result, it is claimed that the defendant was guilty of conduct prejudicial to the plaintiff's interest and this entitled the plaintiff to terminate the agreement.

15 15. He stated that on 8 ^th July, 2012, he arranged for expert removers to attend to remove the paintings but that Mark Nolan, General Manager of second named defendant...