Hanley v Hannon

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 13 February 2019
• Neutral Citation: [2019] IEHC 86
• Docket Number: [2013 No. 12782 P.]
• Court: High Court
• Date: 13 February 2019

[2019] IEHC 86

THE HIGH COURT

Noonan J.

[2013 No. 12782 P.]

BETWEEN

SEAN HANLEY

PLAINTIFF

AND

MARY HANNON ADMINISTRATOR OF THE ESTATE OF THE LATE MARTIN HANNON

AND

GERARD NEILAN

AND

WILLIAM BRANDON PRACTISING UNDER THE TITLE

AND

STYLE OF PATRICK J. NEILAN AND SONS, SOLICITORS (INCORPORATING MARTIN J. NEILAN)

DEFENDANTS

Damages – Negligence – Breach of contract – Plaintiff seeking to amend his statement of claim – Whether good reason had been advanced by the plaintiff for the failure to plead his case

Facts: The plaintiff, Mr Hanley, claimed damages for negligence and breach of contract as a result of the failure to comply with planning conditions. He applied to the High Court seeking to amend his statement of claim and to join the first defendant, Mrs Hannon, as a co-defendant to the proceedings in her personal capacity as distinct from her representative capacity. The plaintiff issued the motion on the 1st August, 2017, some twelve and a half years after the conclusion of the contract the subject matter of the proceedings. The only reason advanced by the plaintiff for the late application to amend was that he was a litigant in person who did not appreciate the significance of certain matters at the time he instituted his proceedings. The failure to join Mrs Hannon originally in the proceedings was again said to stem from the fact that Mr Hanley did not know any better.

Held by Noonan J that no good reason had been advanced on behalf of Mr Hanley for the failure to plead his case. Noonan J held that the application to amend must fail.

Noonan J held that Mrs Hannon would be significantly prejudiced by being joined as a defendant to the proceedings at this stage and that it would be unjust to do so. Noonan J held that he would refuse the plaintiff’s application.

Application refused.

JUDGMENT of Mr. Justice Noonan delivered on the 13th day of February, 2019

1 The within application is brought by the plaintiff (‘Mr. Hanley’) for two reliefs. First he seeks to amend his statement of claim and second to join the first defendant (‘Mrs. Hannon’) as a co-defendant to the proceedings in her personal capacity as distinct from her representative capacity.

Background Facts

2 The plaintiff commenced these proceedings as a litigant in person by the issue of a plenary summons on the 6th November, 2013 followed by a statement of claim in February 2014. In the statement of claim, the plaintiff pleads that Mrs. Hannon is the widow of the late Martin Hannon (‘Mr. Hannon’). This is not in dispute. However, the plaintiff also alleges that Mrs. Hannon is the administrator of the estate of her late husband. This is denied on oath by Mrs. Hannon in this application and her evidence in that regard has not been contradicted by Mr. Hanley, despite a subsequent affidavit having been sworn by him.

3 The statement of claim goes on to allege that on the 28th February, 2005, Mr. Hanley purchased two sites known as sites 9 and 10 Ardsallagh Beg, Roscommon from Mr. and Mrs. Hannon who instructed the second and third named defendants as their solicitors in the transaction. Again in her sworn evidence, Mrs. Hannon says that only one site was in fact purchased by Mr. Hanley, the other having been purchased by his son. Again this is not controverted by Mr. Hanley.

4 The statement of claim further pleads that the conveyance between the parties included a covenant whereby Mr. Hanley was to construct a dwelling house within eighteen months of the date of the conveyance. He further pleads that the replies to requisitions on title indicated that Mr. and Mrs. Hannon were applying for planning permission for the sites in question but this did not issue until the 16th January, 2006, leaving Mr. Hanley with only seven months to comply with the covenant to build the house.

5 He further alleges in his statement of claim that the Hannons failed to comply with conditions 11 and 12 of the planning permission and, although he does not specify what those conditions provided, he claims that as a result of such non-compliance he lost the opportunity to build. In consequence he claims to have suffered loss and damage. He also alleged that the solicitors had failed to comply with an unspecified undertaking on the closing of the sale but the proceedings have been discontinued against the solicitors so that Mrs. Hannon is the only remaining defendant. The only case pleaded against them appears to be an allegation that they failed to comply with an unspecified undertaking given on the closing of the sale.

6 Accordingly, Mr. Hanley claims damages for negligence and breach of contract as a result of the failure to comply with the planning conditions.

7 Mrs. Hannon's solicitors served a notice for particulars on the 20th March, 2014 which appears not to have been replied to and delivered a defence on the 12th October, 2014. In her defence, she raises by way of preliminary objection the Statute of Limitations and also pleads that the plaintiff has been guilty of inordinate delay in bringing the proceedings. She expressly denies that she is the administrator of her late husband's estate and much of the defence is a general traverse of the statement of claim. However, in relation to the allegation that the Hannons had failed to obtain planning permission, or to obtain it in time, she expressly relies on special condition 11 of the contract which provided as follows:

‘The site the subject matter of the sale is not being sold with the benefit of any planning permission and the sale is not subject to the purchaser applying for or obtaining planning permission in respect of the site the subject matter of the sale.’

8 It is important to note that Mr. Martin Hannon died on the 3rd February, 2011, some six years after the contract was concluded and over two and a half years prior to the institution of the proceedings.

9 Subsequent to the delivery of the defence, Mr. Hanley served an amended statement of claim in November, 2014 in which he added two new allegations, evidently in response to the defences that had been delivered. First he pleaded that one of the sites was transferred to his son contrary to his express instructions, presumably by the second and third defendant. Second, he says that because clause 11 provided that the sale was not subject to planning permission being obtained by the plaintiff, this infers that it was sold with the benefit of planning permission.

10 Discovery was made by the 3rd defendant in an affidavit sworn on the 22nd April, 2015. Matters thereafter appeared to have proceeded as outlined in an affidavit sworn by Mr. Hanley in this motion on the 4th October, 2018. In relation to the issue of representation, a number of uncontradicted facts emerge from the affidavits sworn on behalf of Mrs. Hannon opposing this motion. The first is that Mr. Hanley was at all times represented by solicitors in relation to the sale. The second is that in instituting and pursuing these proceedings, he has been assisted by a Mr. David O'Shea, a former solicitor who holds two law degrees and practiced as a solicitor for 15 years between 1993 and 2008. Thirdly, in or around 2012 shortly before the institution of these proceedings, Mr. Hanley instructed Messrs. Brendan J Looney, solicitors, to engage in correspondence with the potential defendants in relation to the matter, although that firm never came on record.

11 In his own affidavit, Mr. Hanley avers that in or around October, 2016, Mr. Hanley sought expert assistance in relation to his claim and consulted Mr. Ignatius Gaynor, an architect, who presumably has expertise in relation to planning matters. It would appear that before Mr. Gaynor had carried out any significant investigative work concerning the planning issues in the case, Mr. Hanley set the matter down for trial and applied for a hearing date on the 18th November, 2016. A hearing date of the 18th July, 2017 was given for the trial.

12 As a result, possibly of Mr. Gaynor's investigations, the plaintiff, with less than a month to go to the trial, for the first time consulted Mr. Paul Kelly solicitor on the 23rd June, 2017. That appears to have been followed by a consultation with Mr. Kelly, Mr. Gaynor, Mr. Hanley and counsel on the 29th June, 2017.

13 This latter meeting proved to be the catalyst for the application that is now before the court. Mr. Hanley says that he learned at this consultation for the first time that he had been the victim of a fraud in relation to the planning and other issues in the case. This...