An Cumann Peile Boitheimeach Teorenta -v- Albion Properties Ltd & Ors, [2008] IEHC 447 (2008)

Docket Number:2007 4902 P
Party Name:An Cumann Peile Boitheimeach Teorenta, Albion Properties Ltd & Ors
Judge:Edwards J.








PASCAL CONROYDEFENDANTSJUDGMENT of Mr. Justice John Edwards delivered on the 7th day of November, 2008.


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.

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.

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.

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 an ex-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".

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.

It is a matter of some significance that subsequent to this Bohemians entered into an agreement with a third party, namely Daninger 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.

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.

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.

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.

The course of dealings between the parties as established in evidence

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.

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 without creating an undue hazard to any persons, vehicles or property in the vicinity. The feasibility study indicated that Albion would need to acquire a further piece of land to accommodate Tesco's requirements. A piece of land owned by Bohemians adjacent to the Connaught Street entrance to Dalymount Park was identified as being suitable and Bohemians were approached by Tom Murphy in 2001 to see if they would agree to sell it to Albion. Bohemians responded positively to Albion's invitation to meet and the parties proceeded to enter into negotiations. Initially Albion was represented by Tom Murphy in the negotiations. For their part, Bohemians were represented by Mr. Felim O'Reilly. Mr. O'Reilly was the President of the Bohemian Football Club Limited, from in or about 1999, until February 2006. Mr. O'Reilly is also a solicitor and he is a partner in the firm of FH O'Reilly and Co., Solicitors. The firm of FH O'Reilly and Co. acts for the Bohemian Football Club Limited. Although they had only recently opened negotiations with Bohemians, Albion's representatives were impatient to lodge a planning application in respect of their proposed shopping centre redevelopment. The proposed redevelopment was to be a major project costing in the region of 200 million. From June 2001 onwards, and in advance of any agreement, Mr. O'Reilly was pressed repeatedly by Tom Murphy to provide Albion with a letter consenting to Albion including part of Bohemian's property at the Connaught Street entrance to Dalymount Park in their planning application for the redevelopment of Phibsboro Shopping Centre. However, Mr. O'Reilly resolutely resisted the pressure to do so and negotiations continued. As both sides had particular requirements with respect to the nature and extent of the parcel at issue it was decided that their respective architects would meet and liaise with a view to deciding on a parcel that would meet the requirements of both sides. Unfortunately they were unsuccessful. Accordingly, on the 18th October, 2001, Tom Murphy...

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