Conneran and Another v Corbett and Sons Ltd and Another
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 31 May 2006 |
| Neutral Citation | [2006] IEHC 254 |
| Court | High Court |
| Docket Number | No. 2103 P/1999 |
| Date | 31 May 2006 |
AND
[2006] IEHC 254
THE HIGH COURT
Damages - Claim for damages as pleaded - Evidence in support of claim - Quantification of loss - Restitutionary damages - Normal measure of damages -
In an earlier judgment, the High Court determined that the defendants were liable to the plaintiffs because of interference by the defendants with easements acquired by the plaintiffs which was actionable at the suit of the plaintiffs. This judgment was concerned with the quantification of the damages to which the plaintiffs were entitled.
Held by Laffoy J. in granting the plaintiffs judgment in the sum of Eur50,000 that having regard to the state of the evidence it was not possible to determine what was a fair measure of damages as between the plaintiffs and the defendants for the interference with the plaintiffs’ rights. Overall fairness between the plaintiffs and defendants would be achieved in the rent revisions processes.
Reporter: R.W.
REDDY v BATES 1983 IR 141
VESEY v BUS EIREANN 2001 4 IR 193
SHELLEY-MORRIS v BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 232
MCGREGOR DAMAGES 17ED CH 12
WROTHAM PARK ESTATE LTD v PARKSIDE HOMES LTD 1974 1 WLR 798
JAGGARD v SAWYER 1995 1 WLR 269
AG v BLAKE 2001 1 AC 268
CLARK CONTRACT LAW IN IRELAND 5ED CH
CHANCERY AMENDMENT ACT (LORD CAIRN'S ACT) 1858
BRACEWELL v APPLEBY 1975 1 AER 993
MCGRATH v MUNSTER & LEINSTER BANK LTD 1959 IR 313
SCOTT v GOULDING PROPERTIES LTD 1973 IR 200
BLAND THE LAW OF EASEMENTS & PROFITS A PRENDRE 1997 P334
LANDLORD & TENANT (IRL) ACT 1860 (DEASYS ACT) S3
MCGREGOR DAMAGES 17ED PAR 23-011
MCGREGOR DAMAGES 17ED PAR 34-015
SNELL & PRIDEAUX LTD v DUTTON MIRRORS LTD 1995 EGLR 259
HICKEY v ROCHES STORES 1980 ILRM 107
delivered on 31st May, 2006.
By agreement of the parties I determined the issue of liability in this matter in a judgment delivered on 15th December, 2004. Having found for the plaintiffs on the liability issue, this judgment is concerned with the remedy to which the plaintiffs are entitled. In essence, it is concerned with the quantification of the damages to which the plaintiffs are entitled. While the plaintiffs claimed injunctive relief in the proceedings, the plaintiffs did not apply for an interim or an interlocutory injunction and, in effect, the claim for permanent injunctive relief was not pursued.
I determined that the defendants are liable to the plaintiffs because -
(a) the plaintiffs, as lessees, acquired, by virtue of their leases, easements to receive and make deliveries of stock and material for storage in Unit No. F (but limited to the use of Unit No. F as a store for goods supplied in Units Nos. 11 and 12) or directly to and from Units Nos. 11 and 12 Corbettcourt Shopping Mall in Galway through the car park delivery doors via the loading bay and the car park from and to the public roads, which were accessed at either Barrack Lane or Whitehall, subject to regulation by the lessors under the terms of the leases, and
(b) there was a real and substantial interference by the defendants with those rights, which was actionable at the suit of the plaintiffs.
In relation to the use of the plaintiffs of the hatch doors and the chute for receiving deliveries, I determined that such use was permitted under a separate agreement, which post-dated the grant of the leases, and was in the nature of a revocable licence, which could be revoked on reasonable notice.
This judgment should be read in conjunction with the judgment delivered on 15th December, 2004, in which the geography and physical features which gave rise to the issues in these proceedings are described.
The claim for damages as pleaded in the plaintiffs' second amended statement of claim delivered on 26th February, 2004, which does not differ materially from the claim as pleaded in the amended statement of claim delivered on 16th July, 1999, particularised the following components of alleged extra expense, inconvenience, loss and damage (stated in Irish pounds but converted to Euro in the following summary) incurred by the plaintiffs by reason of the defendants' alleged wrongdoing:
(1) Additional wages, stated to amount to "a little over a half of one employee's wages", arising from the necessity to employ additional personnel to deal with deliveries to the Units via the alternative access at the public street available to the plaintiffs after the closure of the car park delivery doors and the development of the loading bay and the car park.
The additional wages were calculated at €6, 789.29 (IR£5,347) for the first year of the disruption, that is to say, from February, 1998 to February, 1999 and estimated at €8, 207.59 (IR£6,464) for the second year. It was also pleaded that it was expected that employment costs would increase "in the amount of 3% arising from wage agreements and inflation". On that basis the cost of additional wages which would be incurred by the plaintiffs over the residue of the terms of the leases, which was put at 28 years, would be €352, 905.92 (IR£277,936).
(2) Additional cost of € 761.84 (IR£600) per annum, representing the cost of delivering large items to the buyers' addresses, which additional costs were alleged to be incurred by reason of the fact that customers were unable to drive into the rear of the premises (i.e. into the car park and loading bay) to collect large items. These additional costs for the residue of the terms created by the leases were calculated at €32, 756.70 (IR£25,798).
(3) Loss due to reduced trading activity, which component was not pursued.
(4) Additional cost of an external warehouse at a rent of €6, 348.69 (IR£5,000) per annum, which over the residue of the terms (28 years) "incorporating 3% inflation rate" was calculated at €272, 978.45 (IR£214.988).
(5) Diminution in the value of Unit No. F, which it was stated was calculated at €71, 105.33 (IR£56,000). In fact, no evidence was adduced of the alleged diminution in value of Unit No. F.
At the hearing, evidence was adduced only in relation to the alleged losses at (1), (2) and (4), that is to say, additional wages costs, additional delivery to customer costs and the additional cost of external warehousing. The figures at (1), (2) and (4) aggregate €658,641.07 (IR £518,722.00).
The damages were claimed in respect of breach of contract, trespass and nuisance.
The expert evidence adduced by the plaintiffs to support the contention that the interference with the rights they acquired under the leases gave rise to losses of the nature and to the degree alleged in the statement of claim consisted of the evidence of an engineer with specialised Knowledge of time and motion studies, an accountant and an actuary. All of the plaintiffs experts' evidence was to a large extent premised on facts supplied by the plaintiffs. The first plaintiff testified as to those facts.
The engineer, Mr. Con O'Donovan, addressed the additional work involved in receiving stock via the routes available from March, 1998 onwards after access via the car park and loading bay through the car park delivery doors had been cut off. His evidence was based on time studies carried out by him at the request of the plaintiffs on 7th and 8th July, 1998.
Mr. O'Donovan's understanding of the rights of the plaintiffs in relation to receiving deliveries via the car park and the loading bay through the concrete building, which was based on information given to him by the plaintiffs, was subject to certain misconceptions. Most importantly, his understanding was that the hatch doors and the chute were part of the "Goods Inwards Access" in respect of which the plaintiffs were granted rights in the lease. As I found in my judgment of 15th December, 2004, that assumption is not correct. The terminus of the "Goods Inwards Access" within Corbettcourt Shopping Mall was the car park delivery doors. Further, insofar as there was an implication in Mr. O'Donovan's statement that "there was a capability to store goods at the bottom of the chute and also on the chute incline" that the plaintiffs had a right to such storage, the statement is incorrect. The plaintiffs did have a revocable licence to use the chute for the purpose of bringing goods into their storage area at Unit No. F, which was determinable on reasonable notice. In my judgment of 15th December, 2004 I found that the plaintiffs effectively got no notice of the revocation of this licence. However, in my view, on the evidence, the failure to give reasonable notice could give rise to little more than nominal damages, because, given the circumstances, relatively short notice, say two weeks would have been reasonable. The significant point is that on the revocation of the licence the plaintiffs would have had to make and receive deliveries through the double doors, which on the evidence they rarely did while the chute was available, or by one of the other routes available.
In reaching his conclusions, Mr. O'Donovan does not appear to have factored in the fact that, while the hatch doors were at ground level to the exterior loading bay, the car park delivery doors (which in my judgment of 15th December, 2004 I erroneously stated were at level 1, rather than level 2, of the interior of the concrete building) were a few feet higher than the level of the loading bay, so that palletized deliveries could not be brought in through them. He did not carry out any time and motion study in relation to the delivering of goods via the car park and loading bay through the car park delivery doors and from thence to the...
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