Christopher Walter and Another v Crossan Homes Ltd and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Gerard Hogan
Judgment Date24 July 2014
Neutral Citation[2014] IEHC 377
Docket Number[2012 No. 3202 P]
Date24 July 2014

[2014] IEHC 377

THE HIGH COURT

[No. 3202 P/2012]
Walter & Rodriguez v Crossan Homes Ltd & Ors
No Redaction Needed

BETWEEN

CHRISTOPHER WALTER AND SUSANNA RODRIGUEZ
PLAINTIFFS

AND

PETER CROSSAN AND CROSSAN HOMES LIMITED AND DAVID FENTON, JAN HAYES, TERENCE B. MCGRATH AND GRÁINNE O'HANLON PRACTISING UNDER THE STYLE AND TITLE OF HAYES MCGRATH SOLICITORS
DEFENDANTS

RSC O.19 r28

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(1)

ENNIS v BUTTERLY 1996 1 IR 426 1997 1 ILRM 28 1996/11/3271 1996 IEHC 51

PLANNING & DEVELOPMENT ACT 2000 S152

PLANNING & DEVELOPMENT ACT 2000 S152(4)

PLANNING & DEVELOPMENT ACT 2000 S154

PLANNING & DEVELOPMENT ACT 2000 S160

WALL v HEGARTY 1980 ILRM 124

DORAN v DELANEY 1998 2 IR 61 1998 2 ILRM 1 1998/5/1307 1998 IESC 66

JARVIS v SWANS TOURS LTD 1973 1 AER 71 1972 3 WLR 954 1973 QB 233

DINNEGAN v RYAN 2002 3 IR 178 2002/7/1456 2002 IEHC 55

BROWNE v IARNROD EIREANN (NO 2) UNREP HOGAN 5.3.2014 2014 IEHC 117

JOHNSON v LONGLEAT PROPERTIES LTD 1976-77 ILRM 93

QUINN v QUALITY HOMES LTD 1976-77 ILRM 314

LEAHY v RAWSON 2004 3 IR 1 2003/30/7110

MITCHELL v MULVEY DEVELOPMENTS LTD UNREP HOGAN 2.6.2014 2014 IEHC 37

LARKIN v DUBLIN CITY COUNCIL 2008 1 IR 391 2007/34/6982 2007 IEHC 416

HEGARTY v MERCY UNIVERSITY HOSPITAL CORK UNREP IRVINE 25.11.2011 2011/25/6583 2011 IEHC 435

KELLY v HENNESSY 1995 3 IR 253 1996 1 ILRM 321 1995/19/4837 1995 IESC 8

WILKINSON v DOWNTON 1895-9 AER REP 267 76 LT 493 13 TLR 388 1897 2 QB 57

CONSTITUTION ART 40.3.2

Conveyancing – Conditions of Sale – Planning Permission – s. 154 & s. 160 of the Planning and Development Act 2000 – Negligence – Duty of Care – Breach of Contract – Damages

Facts: The court was asked to determine whether a plaintiff in an action for negligence could be awarded damages for the upset and inconvenience caused by a breach of a duty of care when the upset, distress and inconvenience fell short of nervous shock and psychiatric injury. The defendants sought to have the negligence proceedings against them struck out pursuant to the inherent jurisdiction of the court.

Background

The plaintiffs entered into an agreement with the first defendant, Peter Crossan, to purchase lands and premises. This agreement also entered into an agreement for the construction of a house to be built by the second defendant, Crossan Homes Ltd, in accordance with specific planning permission. Hayes McGrath was the firm of solicitors acting on behalf of the Crossan defendants in connection with the sale and conveyance of land.

Condition 2 of the planning permission stipulated that €32,943.80 had to be paid in respect of the purchased site to Wicklow County Council to provide for roads, water, sewage and recreational amenities. The plaintiffs alleged that the first defendant, as director of the second defendants, certified in writing that the relevant sum of money had been paid to the Council in compliance with Condition 2 of the planning permission. The plaintiffs further allege that they paid the Crossan defendants to purchase the house on foot of this certificate and Hayes McGrath released the funds prior to formal confirmation from the local authority that Condition 2 had been complied with.

The plaintiffs received a letter from the local council stating that they owed the Council €36,322 because the relevant financial contribution had not been paid. In addition, the letter also threatened criminal prosecution by virtue of s. 154 of the Planning and Development Act 2000. Solicitors for the Council also sent a letter demanding payment of this sum within fourteen days or they would issue injunction proceedings pursuant to s. 160 of the Planning and Development Act 2000. The plaintiffs suffered acute distress and upset as a result of the demands and threats.

Held by Hogan J: The court decided that the relationship between Hayes McGrath, as solicitors for the developer defendants, and the plaintiffs as purchasers of the property developed by their client, was sufficiently close to give rise to a duty of care. However, no contractual relationship existed between the parties and therefore the plaintiff"s action against Hayes McGrath was one of negligence and breach of duty only. Damages for distress and inconvenience are only recoverable in an action for breach of contract. As a result the court struck out the case against Hayes McGrath defendants pursuant to the inherent jurisdiction of the Court.

1

1. Can a plaintiff in an action for negligence recover damages for the upset and inconvenience caused by a breach of a duty of care which is owed to them where that upset, distress and inconvenience falls short of nervous shock and psychiatric injury? This is essentially the issue which arises in this application which is brought on behalf of the third, fourth, fifth and sixth defendants ("the Hayes McGrath defendants") to have the negligence proceedings against them struck out pursuant to the provisions of O. 19, r. 28 or, alternatively, pursuant to the inherent jurisdiction of the court. It is also contended that the proceedings should also be struck out in the absence of an authorisation from the Personal Injuries Assessment Board under s. 12(1) of the Personal Injuries Assessment Board Act 2003 ("the 2003 Act") on the basis that the claim is really one for personal injury which required the prior authorisation of the Board before such proceedings could be issued.

2

2. The issue arises in the following way. In July, 2006 the plaintiffs, who are husband and wife, contend that they entered into an agreement with the first defendant, Peter Crossan, to purchase lands and premises at No. 2 Avondale Court, Ballyguile, County Wicklow. This agreement also entered into an agreement for the construction of a house to be built by the second defendant, Crossan Homes Ltd., in accordance with a particular planning permission bearing record number 02-6245, which permission was held by the Crossan defendants. Messrs. Hayes McGrath are a firm of solicitors who acted for the Crossan defendants in connection with this sale and conveyance of land.

3

3. One of those conditions ("condition 2") contained in the planning permission was that the sum of €32,943.80 was to be paid in respect of the site at No. 2 Avondale Court to Wicklow County Council for the provision of roads, water, sewerage and recreational amenities.

4

4. The conditions of sale required that the vendor provide "written confirmation from the local authority of compliance with all conditions involving financial contributions." In the amended statement of claim delivered on 14 th February 2014 the plaintiffs allege that the first defendant in his capacity as a director of the second defendants certified in writing that the levies specified in condition 2 of the planning permission had been paid to the Council so that this condition was complied with. The plaintiffs further allege that this certificate was inaccurate and misleading and in that respect the Crossan defendants are sued both in negligence and for breach of contract. Since the Crossan defendants were not a party to this motion and since they have not been heard in relation to this matter, I refrain from any further comment in relation to these particular allegations.

5

5. The plaintiffs then allege that on foot of this certificate they paid over the funds for the house purchase for the benefit of the Crossan defendants and that the funds were released by Hayes McGrath in their capacity as the solicitors for the Crossan defendants prior to formal confirmation from the local authority either that the terms of condition 2 had been complied with or the production of any receipts from the Council in that regard. The sale closed at the end of July 2006, but it appears that the Council wrote to Hayes McGrath on 4 th August 2006 shortly thereafter to the effect that the payments due in respect of condition 2 for 2 Avondale Court were still outstanding. The plaintiffs further allege that Hayes McGrath:

"negligently parted with the plaintiffs' funds and further failed to notify the plaintiffs' solicitor that the said certificate being furnished was inaccurate and therefore in breach of planning permission reg. ref. no. 02/6245."

6

6. I should pause at this point to observe in the interests of fairness that Messrs. Hayes McGrath have indicated that they will deny these allegations should the matter go to full trial. Nevertheless, it is equally clear that for the purposes of an application of this kind 1 must also assume that, generally speaking at least, the plaintiffs will be in a position to prove all factual matters contained in their pleadings: see Ennis v. Butterly [1996] 1 I.R. 426,430-431,per Kelly J.

7

7. I might also observe that while the plaintiffs allege that in this respect there was a breach of contract on the part of Hayes McGrath, there is nothing at all to suggest that there was such a contractual relationship between them and Hayes McGrath. I will therefore proceed on the basis that the action against these particular defendants is for negligence and breach of duty only. (The claim for breach of contract as against the Crossan defendants is a different matter entirely.)

8

8. Following the completion of the sale, the Mr. Walter and Ms. Rodriguez moved into 2 Avondale Court which had by then become their family home. So far as they were concerned, they had acquired a full and complete title to the property, including a full planning permission to use and occupy the dwelling for this purpose. Yet an unpleasant surprise awaited them, because it is common case that on 22 nd March, 2011, the plaintiffs received a notification from Wicklow County Council to the effect that this financial contribution had not been paid and that the sum of some €36,322 was now due and owing by them to the...

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  • Murray v Budds
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    ...aspect to the appeal which should be addressed by reference to the judgment of Hogan J. in Walter and another v. Crossan and others [2014] IEHC 377. It is the entirely separate question whether, even if this claim was not statute-barred, damages for the alleged worry and stress during the w......
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