Folens Company Ltd v Minister for Education

• Jurisdiction: Ireland
• Judge: MR. JUSTICE McWILLIAM
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 464
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 464

4363P/1978

FOLENS & CO. v. MINISTER FOR EDUCATION

FOLENS AND COMPANY LIMITED

.v.

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL.

Subject Headings:

CONTRACT: quasi-contract

DAMAGES: assessment

1 JUDGMENT DELIVERED ON 4th OCTOBER 1982 BY MR. JUSTICE McWILLIAM

2 This case commenced with a claim for an indemnity against money expended by the Plaintiff in preliminary work done by it for the production of a children's encyclopedia in Irish which was to be financed by the purchase of volumes of the finished work by the Department of Education (hereinafter called the Department) or by means of grants or by both methods. This claim was for £82,466 but it was subsequently amended to include a claim for damages for breach of a contract for the production of the encyclopedia for the Department by the Plaintiff, such damages to include loss of profits which would have been earned had the project been completed.

3 Mr. Albert Folens is the managing director of the Plaintiff, which is a family concern. He came to Ireland from Belgium in 1948, obtained degrees at U.C.D. and, in 1953, started writing educational books. In 1957 he started publishing educational books for primary and secondary school standards with a few books for the university. The books published in English were published for the Department upon different terms to those applicable for books published in Irish, for which there is not such a wide market.

4 In the case of Irish books the Plaintiff paid the costs of production and publication, retained the proceeds from sales and received grants from the Department through An Gum. These grants were provided by the Department on terms which appear to have been renewed each year with certain variations mainly concerned with the amounts and methods of calculation of the grants. Amongst the terms, the following were included in each year:-

5 1. A grant will not be payable until the book is published.

6 2. A publisher who intends to publish a textbook must first submit a sample of the original script of the book (one chapter and brief summary of the other chapters) to the Department for approval.

7 3. Approval of the sample does not guarantee that a grant will be paid for the published book.

8 In 1969 or 1970 Mr. Folens conceived the idea of producing a children's encyclopedia in Irish. He had become very well acquainted with Mr. Thomas O'Floinn, a senior officer in the Department, in connection with his earlier publications in Irish and he approached Mr. O'Floinn about producing the encyclopedia, Mr. O'Floinn said in evidence that he was not enthusiastic about the idea but thought it was a good one and asked for a proposition.

9 Neither of them is clear when the matter was first discussed but it was probably in 1970 as it appears there was a new programme introduced for schools in 1969 and that it was in connection with this that Mr. Folens thought of producing an encyclopedia. At all events he was already investigating the question of cost in January, 1971.

10 By 18th August of that year, the Plaintiff had decided to appoint Mr. de Barra as editor and wrote to Mr. O'Floinn and informed his of this fact. With this letter a Statement of the Plaintiff's proposals for the production of the encyclopedia was enclosed. These proposals were discussed at a meeting: at the Department on 10th September at which Mr. O'Floinn and five others from the Department were present and Mr. Folens and two others were present on behalf of the Plaintiff. This was a preliminary discussion and no decisions were reached but it was recorded that the Department was in favour of the project. It was also stated that the Department of Finance would have to be consulted. The Plaintiff's proposals had suggested an arrangement different to that which had operated between the parties with regard to the previous educational books in Irish having the effect that the Department would enter into certain commitments in addition to the grants normally provided through An Gum.

11 Shortly after this meeting, the Plaintiff furnished an estimate of the cost of the project amounting to £382,962 and pointed out that, on the basis of the suggestions at the meeting of 10th September, there would not be sufficient profit for the Plaintiff.

12 At a further meeting in March, 1972, a number of matters were discussed and the representatives of the Department present appear to have agreed in principle both to the project and to an increased coat of £425,512 but no agreement was reached and it was emphasised that there could be no prospect of authority to go ahead unless the Department guaranteed the purchase of 6, copies of each volume.

13 In June, 1972, Mr. O'Floinn sent a memo to the Department of Finance in which he said "Folens & Co. Ltd., could not undertake to publish such a work without a guarantee that it would be bought and sold."

14 A memorandum from the Department of the Minister for Finance to the Department of Education in August, 1972, indicated that the Department of Finance approved the proposals but required them to be considered by the Government Contracts Committee.

15 The format of the encyclopedia was discussed at a meeting between representatives of the Department and of the Plaintiff in January, 1973, and a recommendation was sent from the Department to the Government Contracts Committee that a contract be placed for 5, copies of each of 16 volumes at £3 per volume making a total of £240,, publication to be at the rate of two volumes per year between 1974 and 1982.

16 On 15th March, 1973, representatives from the Department and of the Plaintiff met with representatives of the Joint Welsh Educational Committee for discussions about a similar encyclopedia being prepared in Welsh, with particular regard to the method of obtaining the assistance of experts.

17 By the middle of May, 1973, a Supervisory Committee had been appointed by and on behalf of the Department to supervise the work done by the Plaintiff and to approve the membership of an editorial committee to produce or approve articles for the encyclopedia. When formed, this latter committee was called the Advisory Committee. At a meeting with two officers from the Department and the Supervisory Committee on 11th May, 1973, Mr. de Barra, on behalf of the Plaintiff, submitted that the Plaintiff should have some form of contract or guarantee in writing without further delay.

18 At a further meeting of the Supervisory Committee on 18th May, 1973, there appears to have been some discussion about the scale of payment to be made to the members of the Advisory Committee and arrangements were made to give guidelines to the Plaintiff for the preparation of the encyclopedia. On 3Oth May the Supervisory Committee met to discuss the format of the encyclopedia and seem to have approved of the scale of remuneration proposed for the Advisory Committee.

19 The Supervisory Committee met with Mr. de Barra present on 28th September, 1973, and appears to have asked for an estimate to be prepared. This was done and is dated 1/10/73, and a letter to Mr. O Tuma of 5th. October quotes a figure of £573,840 for 6, copies of each of twelve volumes.

20 A draft letter, dated November, 1973, from the Department to Mr. de Barra which was sent for approval to the Publications Branch, called for a break-down of the estimate and stated that the retail price should not exceed £3, that it was understood that an increase in the payments involved would have to be made and that, as soon as the breakdown would be certified and accepted by the Department, a payments scheme would be set up through An Gum. A reply to Mr. O Tuama from the Publications Branch dated 15th November, 1973, referred to the memorandum of 24th August, 1972, in which the Department had required the proposals to be considered by the Government Contracts. Committee and suggested financing the project by determine a price per copy which would cover all the costs and some profit for the Plaintiff. This indicates that the draft letter was not approved or sent but it appears to me to be relevant in another context.

21 The Advisory Committee met on 10th November, 1973, and it appears that at this date, a...