Dublin Port and Docks Board v Brittania Dredging Company Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 31 July 1968
• Docket Number: [1968. No. 1661 P.]
• Date: 31 July 1968

Supreme Court

[1968. No. 1661 P.]

Dublin Port and Docks Board v. Brittania Dredging Co. Ltd.

DUBLIN PORT AND DOCKS BOARD

Plaintiffs

and

BRITTANIA DREDGING COMPANY LIMITED

Defendants.

Injunction - Contract - Negative term - Agreement that party would not remove equipment from site - Imminent breach of contract threatened - Action - Interlocutory injunction.

Appeal from the High Court.

The facts have been summarised in the head-note and appear in the judgments, post.

The plaintiffs appealed to the Supreme Court from the judgment and order of the High Court.

The defendants contracted with the plaintiffs for valuable consideration to perform certain dredging works in the Port of Dublin. The defendants had assessed their costs of the works on the basis of a survey of the site which the plaintiffs had delivered to the defendants before they tendered for the works. The defendants maintained that the plaintiffs had misrepresented the material to be dredged which differed fundamentally from the material described in the survey, and the defendants stated that, as a consequence, they were losing £2,000 per week in executing the works and that they would be compelled soon to abandon performance of the contract. It was an essential feature of the contract under Clause 20 that the defendants should be deemed to have inspected the site and to have made enquiries about the nature of the material to be dredged, and that the plaintiffs should not be liable for any misrepresentation or lack of information; in addition Clause 53 of the contract stipulated that all equipment brought to the site by the defendants should be deemed to be the property of the plaintiffs and that such equipment should not be removed by the defendants without the written consent of the plaintiffs' engineer, which would not be withheld unreasonably. The equipment brought to the site by the defendants was the property of a third party.

The plaintiffs, having brought an action in the High Court claiming (inter alia) a declaration that the defendants were bound by the terms of the contract, applied by motion on notice for an interlocutory injunction restraining the defendants from removing the dredging equipment from the site. In dismissing the application it was

Held by Teevan J. that a breach of contract by the defendants was imminent and that there was justification for the plaintiffs' belief that the defendants would remove the dredging equipment but that Clause 53, which applied to the property of the third party, was not severable from the remainder of the contract and that the injunction sought would be equivalent to ordering the specific performance of the contract.

On appeal by the plaintiffs it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh and Budd JJ.), in allowing the appeal, 1, that Clause 53 of the contract was designed to enable the plaintiffs to have the works completed in the event of the defendants ceasing to perform their part of the contract and that, accordingly, the injunction sought by the plaintiffs would not be equivalent to ordering the defendants to perform the contract.

2. That the only misrepresentation alleged by the defendants was innocent misrepresentation, which was within the protection afforded to the plaintiffs by Clause 20 of the contract.

• S. Pearson & Son Ltd. v. Dublin Corporation [1907] A. C. 351, applied.

3. That at the date of the hearing of the motion the defendants had failed to show that they were not bound by the terms of the contract.

4. That, as the defendants had agreed to the negative term relating to removal of equipment and a breach of the contract was imminent, the Court should hold the defendants to their bargain, pending the trial, by an interlocutory injunction without considering the balance of hardship or damage; the rights of the third party being unaffected by the injunction.

Dictum of Lord Cairns in Doherty v. Allman3 App. Cas. 709, 720 approved.

Cur. adv. vult.

Teevan J. :—

The plaintiffs seek an interlocutory injunction to restrain, pending the hearing of the action, the defendants from removing from the Port of Dublin certain large and costly dredging equipment. In their action the plaintiffs seek a declaration of the existence of a binding contract between the parties for the execution of dredging work at the port; a permanent injunction in the like terms as the interlocutory injunction now in issue; damages for breach of contract and the customary general claim for further and other relief. Up to the present time there has been no breach of their contract by the defendants and the claim for damages cannot arise, but there is good ground for the plaintiffs' belief that the defendants intend to abandon and refuse to complete the contract.

The contract in question is an elaborate contract, the terms of which are comprised in the standard printed conditions for public-works contracts and on a separate document containing the special conditions. There is a certain amount of conflict about the inclusion or incorporation in it of other documents but that is of no materiality to this application and will be ignored, save to state briefly the peculiar circumstances in which the parties, or perhaps I should say the defendants, are arguing about the terms in much the same way as if the agreement were still in executory form although to a considerable extent it has been already performed on both sides. It was agreed that, pending the sealing of the formal memorandum of agreement, the works contracted for should commence. The formal contract has now been sealed by the plaintiffs but not by the defendants. This, however, is of no present consequence.

The submissions on both sides proceeded on the footing that the presently relevant terms of the memorandum of agreement are binding on the parties, save that the defendants set up facts and conditions which they claim would entitle them to be released from their obligations or, at least, to be awarded damages. The defendants claim that they contracted on the faith of representations by the plaintiffs which, they contend, have turned out to be serious misrepresentations of a fundamental nature and gravely injurious to them. But no issue involving such matters is now before the Court for determination, nor is any such issue relevant to the present controversy, certainly not directly relevant, although there may be circumstances in which, in cases like the present, such issues would be material for "the conduct of the party who seeks the aid of the court will be taken into consideration upon the application for an injunction" (Kerr on Injunctions, 6th ed., p. 413). In the present case, however, if a case of misrepresentation can be made out (and I am far from saying that it could be), it is quite clear on the evidence now before the Court that any representation by the plaintiffs (and again I am not deciding that there was any such) was made in good faith and in the honest belief of its truth and dependableness. It cannot be said that the plaintiffs by care could have discovered any flaw in the facts upon which the defendants rest their claim of misrepresentation inducing them to contract at their tendered rates of remuneration. I repeat, however, that I am viewing the situation from the standpoint of presently available facts and I do not purport to determine any such issue, nor do I wish to say anything which might in any way affect...