Joe Simpson v Alan Torpey and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Clarke |
| Judgment Date | 23 March 2012 |
| Neutral Citation | [2012] IEHC 181 |
| Court | High Court |
| Date | 23 March 2012 |
[2012] IEHC 181
THE HIGH COURT
BETWEEN
AND
SIMPSON v TORPEY & ORS UNREP CLARKE 4.8.2011 2011/46/12949 2011 IEHC 342
COURTS ACT 1981 S22
VEOLIA WATER UK PLC v FINGAL CO COUNCIL (NO2) 2007 2 IR 81
MENNOLLY HOMES LTD v APPEAL CMRS & ANOR UNREP 9.3.2010 2010/34/8432 2010 IEHC 56
MCALEENAN v AIG EUROPE LTD UNREP FINLAY-GEOGHEGAN 6.5.2010 2010/30/7594 2010 IEHC 128
JOHN RONAN & SONS & ORS v CLEAN BUILD LTD & ORS UNREP CLARKE 21.12.2011 2011/28 7691 2011 IEHC 499
RSC O.22
JUDGMENT of Mr. Justice Clarke delivered the 23rd March, 2012
2 1.1 On the 4 th August last I gave judgment in these proceedings ( Simpson v. Torpey & Ors [2011] IEHC 342 ("the principal judgment")). The conclusions which I had reached were set out at paras. 8.1 and 8.2 of the principal judgment in the following terms:-
2 "8.1 In conclusion, therefore, it seems to me that the defendants were the contracting party with Mr. Simpson and are liable to pay him the sum of €16,667 for arrears of salary, €46,154 for pay in lieu of notice and, for the reasons already set out, are also obliged to pay €50,000 in respect of bonus. Nothing is allowed in respect of expenses. The defendants are also required to pay €24,712 into an appropriate pension fund nominated by Mr. Simpson.
3 8.2 Mr. Simpson is not entitled to a profit share arising out of the Titan deal but is entitled to two-thirds of 5% of the net value of the development projects the subject of these proceedings. The defendants will be directed to produce a valuation of that sum based on professional assistance. Mr. Simpson will be entitled to two-thirds of 5% of that value or such higher value as the court may ultimately determine should Mr. Simpson dispute the defendants' valuation."
3 1.2 On the day when the principal judgment was delivered there was some possibility, initially urged by counsel for Mr. Simpson, that a partial order be made on the day in question. However, later that same day it was agreed by all concerned that it would be appropriate to leave over the making of any order until such time as all issues in the case had been concluded.
4 1.3 As is clear from the passage from the principal judgment cited above, the defendants were directed to produce a valuation of the net value of the development projects, the subject of the proceedings. That question along with that of the costs of the proceedings generally were the two main issues remaining to be decided. The matter has now come back before the court for the purposes of making a final order. In order to fully understand the issues which I now have to decide, it is relevant to set out a brief history of what occurred since August of last year.
2 2.1 The case was adjourned from time to time to review progress in obtaining the valuation to which reference has been made. Eventually such a valuation was forthcoming which suggested that, in the light of prevailing property values in Romania at the relevant time, the net value of the projects was negative. If that view were to be accepted, then it is clear that no additional sum would be due to Mr. Simpson under that heading.
3 2.2 The matter was then further adjourned to allow Mr. Simpson to take his own advice. A different view was expressed as to the relevant net value by experts employed by Mr. Simpson. In those circumstances I indicated that it would be necessary that there be an oral hearing for the purposes of attempting to resolve the dispute as to value. Unfortunately for Mr. Simpson, he proved unable to procure the attendance of any relevant witness and ultimately abandoned any claim under the relevant heading. It does also have to be recorded that it was intimated on behalf of the defendants that they too were experiencing some difficulty in relation to procuring the attendance of a witness on their side although it is not clear whether the possibility of calling such a witness had been fully abandoned prior to an intimation on the part of Mr. Simpson's advisers that he was not pursuing the claim. In any event, there is now no longer any claim in respect of a share in the net value of the development properties concerned.
4 2.3 Against that background a number of issues were canvassed by the parties when the matter came back before me for the purposes of making final orders. They were as follows:-
a A. The question of Mr. Simpson's entitlement to pay in lieu of notice;
b B. A claim that it would be appropriate to make an order in favour of Mr. Simpson in respect of part of, what is described in the principal judgment as, "the Titan monies" which, on the evidence, it is said, went into a project which had nothing to do with the defendants or RI Investments and in respect of which it is, therefore, said by Mr. Simpson that he should be entitled to an appropriate share; and
c C. Costs.
I propose dealing with each in turn.
2 3.1 It is correct to say that, in the unapproved version of the judgment delivered on the 4 th August, no mention was made of an answer to the question as to whether Mr. Simpson was entitled to pay in lieu of notice. That omission was mentioned by counsel for Mr. Simpson in the afternoon when the parties came back into court (while other matters were being dealt with) for the purposes of indicating that they would not require any court order at that stage. I made, at the time in question, a comment that it seemed to me that the pay in lieu had been set off against certain benefits which Mr. Simpson had retained. However, at the time when I made that comment I had not the benefit of the unapproved judgment before me. When I proceeded to review the judgment for the purposes of approval it became clear to me that what was set off against the benefits obtained by Mr. Simpson was a very small claim for expenses. It followed that I had not dealt with the question of his claim for pay in lieu of notice. In those circumstances the approved version of the judgment (which has been available on the Courts Service website since the 26 th September last) contains a clear finding that Mr. Simpson is entitled to pay in lieu of notice. That fact is, indeed, reflected in the conclusions section from the approved judgment which I have cited earlier.
3 3.2 In those circumstances no issue arises. The facts are simply that I omitted to deal with that issue at the time of making an unapproved judgment available to the parties and immediately corrected the matter as soon as it was brought to my attention. The sum is, as set out in the approved judgment, due by the defendants to Mr. Simpson.
2 4.1 For the reasons set out in the principal judgment, I came to the conclusion that Mr. Simpson was not entitled to the Titan monies. It is now sought on his behalf to suggest that he might be entitled to a portion of those monies because some of the monies were, on the evidence, reinvested into a project in which he had no involvement. It will be recalled that my reason, for rejecting his claim to a share in the Titan monies, was my finding that he had at least tacitly gone along with the situation, where those monies were being reinvested in other projects in which he would have had a share, and that he could not now be heard to claim an entitlement to the Titan monies having gone along with that course of action. While it is correct to say that the evidence supported the proposition that Mr. Simpson was unaware of monies going into the so called "Gold Avenue" project, it is also correct to note, as was urged by counsel on behalf of the defendants, that under Mr. Simpson's contract any profit share to which he was entitled was to be calculated on the basis of each of the defendants being entitled to take a...
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