Headfort v Brocket and Others

• Jurisdiction: Ireland
• Judgment Date: 04 May 1966
• Date: 04 May 1966
• Docket Number: (1964. No. 446 P.)(1964. No. 1542 P.)
• Court: High Court

Headfort v. Brocket.

Between ELSIE MARCHIONESS OF HEADFORT,Plaintiff, and The Right Honourable RONALD ARTHUR NALL BARON BROCKETThe Honourable THOMAS GEOFFREY MICHAEL TAYLOUR MARQUESS OF HEADFORTand SIR RICHARD JAMES MUSGRAVE, BART.

Defendants.

(1964. No. 446 P.)(1964. No. 1542 P.)

Agreement - Subsequent agreement containing terms inconsistent therewith - Rescission - Duress.

At any time before breach an agreement may be rescinded by a subsequent agreement the terms of which are so inconsistent with the terms of the first agreement that both cannot stand together and this is so even if the subsequent agreement be not carried into effect.

So held by Budd J.

Held further by Budd J. that the threat to take proceedings in assertion of a lawful right does not constitute duress in law.

Plenary Summons.

The plaintiff, Elsie, Marchioness of Headfort, brought two actions against the defendants in assertion of claims made by her arising out of an agreement, in writing, dated the 2nd July, 1958, executed by her and by the defendants. In the first action the plaintiff in her statement of claim (as amended) claimed that by the said agreement (referred to at the hearing as "the heads of settlement"(1) ) or alternatively by verbal agreement of the same date the defendants agreed with the plaintiff (inter alia) to use their best endeavours to procure that the Headfort Estate Company would grant to the Headfort School Company Ltd. (of which the plaintiff was the principal shareholder) a lease of the part of Headfort House and grounds then used and occupied by the school upon terms to be agreed upon and in default of agreement on the terms set out in the said agreement. The plaintiff claimed that in consideration of the said agreement she agreed to settle her holding of shares in the said Headfort School Company Ltd. upon trust for herself during the life of Lord Headfort (her husband) with remainder to the person who should succeed her said husband as Marquess of Headfort absolutely, and she pleaded that in pursuance of the said agreement and in compliance with her obligations thereunder by an indenture of settlement, dated the 17th September, 1958, she settled 2,142 ordinary £1 shares in the capital of the Headfort School Company Ltd.

(which represented the plaintiff's then present holding of such shares) upon the trustees therein named upon trust and subject to the trusts therein mentioned and by transfer, dated the 30th July, 1963, transferred to the said trustees the said 2,142 shares. The plaintiff claimed that in breach of the said agreement the defendants, who were the directors and shareholders of the Headfort Estate Company, had wilfully concurred in the grant to the Headfort School Company Limited of a lease in terms less favourable than the terms of the lease existing at the date of the agreement of 1958 and she claimed specific performance by the defendants of the said agreement, as regards paras. 6 and 7 thereof, and an injunction directing the defendants to procure the Headfort Estate Company to grant a lease to the Headfort School Company Ltd. in terms not less favourable than those set out in the said agreement.

The defendants in their amended defence traversed the plaintiff's claim and pleaded that if the said agreements were, or either of them was, entered into at all (which they denied) there was an implied term that the plaintiff would do nothing to alter the then existing shareholding in the Headfort School Company so as to prevent the transfer of the shares mentioned in para. 3 of the amended statement of claim from vesting in the person who should succeed the said Marquess of Headfort in the title absolutely, the majority of shares carrying voting rights in the said Headfort School Company, and that the plaintiff in breach of such implied term and before transferring the said shares as a director of the said Company caused or concurred with the other directors and shareholders of the said Company in issuing to the late Marquess of Headfort 1,400 (or thereabouts) ordinary shares in the said Company and that the defendants by reason thereof were excused or released from performing the said agreements on their part. The defendants further pleaded in the alternative that if the said agreements were, or either of them was, made between the plaintiff and the defendants the same were rescinded by mutual agreement made between the plaintiff and her late husband, the fifth Marquess of Headfort, of the one part, and the defendants, of the other part, prior to the 30th January, 1960, or alternatively by mutual agreement made between the plaintiff and the defendants prior to the 2nd October, 1962, or alternatively by mutual agreement made between the plaintiff and the defendants on or about the 21st March, 1963.

The defendants further pleaded that if the plaintiff entered into the settlement of the shares as mentioned in the plaintiff's amended statement of claim the said indenture of settlement was not in fact executed by the plaintiff until on or about the 21st March, 1963, and that if the plaintiff did settle and/or transfer the said shares she did not do so in consideration of the said agreements of the 2nd July, 1958, or either of them but solely in consideration of the procuring by the defendants of the execution by the Headfort Estate Company of the lease dated the 21st March, 1963.

In the further alternative the defendants pleaded that if the plaintiff did so transfer the said shares she did so voluntarily and not in pursuance of the said agreements or either of them. The defendants denied that they had not carried out their obligations under the said agreements or either of them and pleaded that the terms of the said lease were agreed upon between the Headfort Estate Company and the plaintiff and the Headfort School Company. Finally, the defendants pleaded that the amended statement of claim disclosed no cause of action in the plaintiff.

The plaintiff, in her reply, pleaded that the said lease granted to the Headfort School Company Limited was accepted under duress because the Headfort Estate Company Limited refused at the time to grant a lease on any other terms or to comply with the terms of the said agreement of the 2nd July, 1958, and thereby compelled the Headfort School Company Limited to accept the lease in the terms offered or to give up its occupation of the premises where the school was being carried on.

The plaintiff also pleaded that if the said agreements or either of them were rescinded by mutual agreement this rescission so far as it affected her was conditional on the defendants carrying out their obligations under the said agreement of the 2nd July, 1958, and this they had failed to do. It was further pleaded that there was no consideration for the alleged rescission.

In the second action the plaintiff alleged that by the said agreement of the 2nd July, 1958, or, alternatively, by a verbal agreement of the same date, the defendants had agreed with the plaintiff (inter alia) to appoint a fourth trustee of certain settlements therein specified, not to purchase any lands outside the jurisdiction of the Courts (other than freehold and leasehold ground rents) without consulting the late Marquess and to discharge out of the trust funds the costs of all parties as contained in the said agreements. The plaintiff alleged that in pursuance of the said agreements she had settled and transferred her entire holding of the shares in the Headfort School Company in the manner stated in the first action.

The plaintiff alleged that the defendants had not carried out their obligations under the said written agreement (or alternatively under the verbal agreement) and in particular that, having agreed with the late Marquess in in his lifetime on the name of the fourth trustee to be appointed, the defendants neglected and refused to appoint such person; that during the lifetime of the late Marquess and without consulting him they purchased out of the property of the Headfort Trust outside the jurisdiction of the Courts lands neither leasehold nor freehold ground rents and that they had not discharged all the costs agreed to be discharged by them out of the trust funds and she claimed relief in respect of these matters. The defendants, in addition to the defences as pleaded in the first action, pleaded that if the agreement as alleged with regard to the appointment of a fourth trustee or as to not purchasing lands outside the jurisdiction of the Court, was made, the same was unenforceable and void as against them. They further pleaded that if any such obligation existed the late Marquess waived the same and that the carrying out of the said obligation had become impossible. As to the costs, the defendants pleaded that as no bill of costs had been furnished no obligation to pay the costs had arisen.

In her reply, the plaintiff joined issue with the defendants on their defence and denied that there was the alleged implied term of the said agreements and further denied that the late Marquess had waived the obligation of the defendants under the said agreement or that the carrying out thereof had become impossible.

Both actions were heard together by consent and at the conclusion of the plaintiff's case the defendants applied for a nonsuit.

Cur. adv. vult.

Budd J. :—

On the conclusion of the plaintiff's case in the two actions at present at hearing counsel for the defendants in both proceedings applied for a nonsuit on the grounds that the plaintiff had failed to establish her case in both the actions and I have now to deal with that application.

The two actions were heard together by consent of the parties and both actions concern certain claims made by the plaintiff in the two proceedings arising out of a document, dated the 2nd July, 1958, referred to throughout the proceedings as the "heads of settlement." In order to understand the nature of the proceedings, and the...