Harte v The Special Criminal Court and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Hyland
• Judgment Date: 03 December 2025
• Neutral Citation: [2025] IECA 249
• Docket Number: Appeal Number: 2019/95

Between/

Maria Keena

Plaintiff/Appellant

and

Thomas Coughlan, Ray Donovan, Michael Dempsey, Promontoria (Aran) Limited, Luke Charleton, Seamus Walsh and Kilkenny Walsh Limited

Defendants/Respondents

[2025] IECA 249

Murray J.

Collins J.

Whelan J.

Appeal Number: 2019/95

THE COURT OF APPEAL

NO REDACTION NEEDED

JUDGMENT of Ms. Justice MáIre Whelan delivered on the 13 ^th day of October 2023

Introduction

1 . This is an appeal against the judgment and order made by Mr. Justice Quinn in the High Court on the 8 ^th February, 2019, wherein at the conclusion of the appellant's case claiming entitlement to a decree of specific performance of a contract for sale of the Ard Rí Hotel Waterford (the premises) (together with ancillary declaratory relief and damages in lieu of specific performance) as against the fourth and fifth named respondents, he acceded to an application made on behalf of the fourth, fifth, sixth and seventh named respondents for an order dismissing the proceedings by direction on the basis that the appellant had failed to establish a prima facie case. The alleged agreement of which specific performance was sought was for the sale of the premises for a price of €1,600,000 with a payment of a non-refundable deposit of €160,000 handed over by her to the vendor's representative at the offices of Ernst & Young, of which the fifth named respondent (‘the Receiver’) was a partner. The contract was said to have been made at those offices on the night of 21 November 2016. The vendors did not complete that transaction and subsequently sold the premises to the seventh respondent (for the lesser sum of €1,500,000).

Judgment of the High Court

2 . In the judgment [2019] IEHC 12 the claim is characterised at para. 1 as follows:

“The plaintiff claims that on 21st November, 2016, she entered into a contract with the fourth and fifth-named defendants to purchase the Ard Rí Hotel in Waterford for a price of €1.6m. She claims that the contract was entered into in a series of telephone conversations on that day between her representative, a Mr. Bob Lanigan, and a Mr. Terry Byrne, an employee of Cerberus European Servicing Advisors (Ireland) Limited, who she claims had authority to bind the fourth and fifth-named defendants [Promontoria (Aran) Limited and Luke Charleton]. She claims also that this contract was evidenced in writing by a receipt for a deposit of 10% of the purchase price paid later that day, coupled with certain e-mails which followed payment of the deposit. On 30th November, 2016, her representatives were informed that she did not, in fact, have a binding contract and that the hotel was being sold to a different party. The hotel was sold later by the fifth-named defendant to the seventh-named defendant, Kilkenny Walsh Limited.”

The judgment records at para. 4 that at the conclusion of the appellant's evidence at the plenary hearing, the fourth, fifth, sixth and seventh named respondents made an application for a direction to dismiss the appellant's action:

“They claim that even if the plaintiff's evidence is accepted (which it is not), and taking the evidence of the plaintiff at its height the plaintiff has not made out a prima facie case in that the essential ingredients of a binding enforceable contract for the sale of the hotel have not [sic] been established and accordingly, that the action should be dismissed.”

The court reviewed the principles derived from the decisions of the Supreme Court in Hetherington v Ultra Tyre Service Limited & Ors. [1993] 2 IR 535 and O'Toole v Heavey [1993] 2 IR 544, in addition to the High Court decision in Moorview Developments Limited & Ors v First Active plc [2009] IEHC 214. At para. 10 the judge observed:

“Many of the facts recited are not in dispute, but others are. Having regard to the test to be applied in deciding on this application, the narrative assumes the truth of the plaintiff's evidence.”

The court noted that the first, second and third named respondents had taken no part in the proceedings and that the fourth, fifth, sixth and seventh named respondents all indicated through their respective counsel that were the application for a dismissal to be refused, they would adduce evidence. The court identified the exercise to be carried out at para. 9 of the judgment as follows:

“Accordingly, this Court must now decide whether, if the evidence of the plaintiff is to be accepted as true and taken at its highest, the plaintiff has made out a prima facie case.”

3 . The court then analysed the evidence of the key witness for the appellant, Mr. Bob Lanigan. That evidence disclosed that in early 2016 initial contact had been made by Mr. Lanigan with an auctioneer in connection with the property. Nothing came of that engagement. It appears that later in the year he made further contact with the auctioneer and was advised that the loan secured on the property had been sold to an investment fund. The auctioneer advised him “… that a company known as ‘Cerberus’ were now dealing with the loan.” In November 2016 Mr. Lanigan procured a contact number for Cerberus. On the 16 ^th November, 2016 he spoke to one Terry Byrne, an employee of Cerberus. The evidence of Mr. Lanigan to the High Court was that Mr. Terry Byrne had said to him that if “he could get in the region of €1.4 to €1.5m he would enforce the sale.” (emphasis added) The High Court judge noted that the contents of this conversation are in dispute but that for the purposes of the application for a direction to dismiss the appellant's case, “the court will accept that these words were used” (para. 19).

4 . On or about Friday the 18 ^th November, 2016 Mr. Lanigan had a conversation with Mr. Jim Treacy, father of the appellant and a successful hotelier and businessman. In the course of that conversation, it was agreed that Mr. Lanigan should engage further with Mr. Terry Byrne and that he was authorised to make an offer of €1.6m for the premises.

21 November 2016

5 . The judgment considered in detail the events of Monday the 21 ^st November, 2016 and in particular the evidence regarding a series of three phone calls that took place on that date between Mr. Lanigan, whom the High Court described at para. 14 as “ a friend and business associate to Mr. Jim Treacy and to the family for over 40 years”, and Mr. Terry Byrne. In the course of the first phone call between Mr. Lanigan and Mr. Byrne, Mr. Byrne advised that there was no contract or deposit in place but that he was in the course of making a deal for the sale of the hotel to a third party. “Mr. Lanigan said that the person he represented was very interested in the property and wanted to purchase it. This was the first time in which he stated that he was representing a party other than himself.” (para. 23) He did not identify who he was representing but, importantly, it was clear that he was not negotiating for the sale on his own behalf.

6 . In the course of the second call which again took place between Mr. Byrne on behalf of the vendor and Mr. Lanigan, the latter indicated “ that he was prepared to go to €1.6m”. The High Court found as follows at para. 24:

“Mr. Lanigan says that in this conversation he confirmed the purchase price of the hotel at €1.6m with Mr. Byrne. Again, nothing more was said about the identity of the party Mr. Lanigan was representing.”

Concerning the third call, the High Court found as follows:

“26. Mr. Lanigan phoned Mr. Byrne to confirm that he would have the deposit of 10% of the purchase price that day. Mr. Byrne said the deposit would have to be non-refundable and Mr. Lanigan agreed to this condition.

27. Mr. Lanigan says that Mr. Byrne stipulated that the deposit should be paid on that same day to EY (formerly Ernst & Young) in the form of a bank draft for the sum of €160,000, being 10% of the purchase price, and that he, Mr. Byrne, would arrange that EY in Dublin stay late at their office to receive this. He would call Mr. Lanigan back to confirm that arrangement. The plaintiff's case is that, in these phone calls, the contract was made for the purchase of the hotel for €1.6m, subject to the condition that the deposit of 10% be paid that same day.”

Thus, throughout the phone calls the purchaser remained unidentified and Mr. Lanigan negotiated as agent for a disclosed but — at that point — unidentified purchaser. There was no evidence that Mr. Terry Byrne ever required the identity of the purchaser as a prerequisite to entering into a binding agreement to sell.

7 . The judgment makes clear that Mr. Lanigan received a number of further calls during the afternoon of the 21 ^st November, 2016 from, inter alia, Capita (an entity subsequently renamed Links) seeking updates with respect to payment of the agreed non-refundable deposit that same evening.

8 . Mr. Lanigan, together with the appellant and her father, attended at the offices of Ernst & Young, the firm of the Receiver Luke Charleton, the fifth respondent, at about 8pm on the 21 ^st November, 2016. They met two individuals who were members of the staff of EY/the Receiver, namely Chris Allen and Ciara O'Mongain. The High Court noted “This was the first occasion on which the plaintiff or any member of the Treacy family was revealed to any of the defendants or their agents. No evidence was given as to what was said at the initial introductions in terms of the respective capacities of Mr. Lanigan, Mr. Treacy, or the plaintiff.” (para. 32).

9 . That evening the appellant, Maria Keena handed to Mr. Chris Allen, (who had been directed to stay back in the office to accept delivery of the non-refundable deposit on behalf of the vendors) a bank draft drawn on Ulster Bank payable to “Ernst & Young” in the sum of €160,000. “Mr. Allen confirmed that this was 10% of the purchase price of €1.6 for the Ard Rí Hotel and adjoining lands.”, according to Mr. Lanigan's evidence which the High Court...