Kelly v Crowley

JurisdictionIreland
JudgeMr. Justice Murphy
Judgment Date05 March 1985
Neutral Citation1985 WJSC-HC 1287
CourtHigh Court
Docket Number[1982 No. 487P],No.487P/1982
Date05 March 1985

1985 WJSC-HC 1287

THE HIGH COURT

No.487P/1982
KELLY & ANOR v. CROWLEY
DERMOT C. KELLY & ANOR.
PLAINTIFFS

and

FINBARR J. CROWLEY
DEFENDANT

Citations:

BANNERTON, IN RE 1984 ILRM 662

FORD & ANOR V WHITE & CO 1964 2 AER 755

INLAND REVENUE ACT 1880

INLAND REVENUE ACT 1880 S43(4)

INTOXICATING LIQUOR ACT 1960 S19

INTOXICATING LIQUOR ACT 1960 S20

LICENSING (IRL) ACT 1902 S2

LICENSING (IRL) ACT 1902 S2(2)

O'CONNOR LICENSING 1904 P128

O'DONOVAN V CORK CO COUNCIL 1967 IR 373, 102 ILTR 169

QUINN V BOURKE 39 ILTR 253

R (BOURKE) V DUBLIN JJ 1903 2 IR 439

ROCHE V PEILOW UREP FINLAY 21.12.79 1980/3/450

SHILLMAN LICENSING 1941 P40

SIMMONS V PENNINGTON 1955 1 WLR 183, 1955 1 AER 240

TAYLOR V RYAN UNREP FINLAY 10.03.83 1983/12/3596

Synopsis:

DAMAGES

Assessment

Sale of land - Contract - Breach - Purchaser's action - Difference between market value at date of purchase and price paid - Mental distress of purchaser not a factor - (1982 No. 487P - Murphy J. - 5/3/85).

Kelly v. Crowley

NEGLIGENCE

Solicitor

Sale of land - Licensed premises - Public house - Nature of licence - Failure to ascertain - Licence issued pursuant to statutory exception applicable to hotels - Premises not registered with Bord Failte as hotel - Publican's licence attached to premises but not renewable - Premises chosen by plaintiff purchaser vested in him fully - Nevertheless plaintiff's intention to acquire licensed premises not fulfilled - Nature of licence discoverable at local District Court - Nature of licence not discoverable from examination of licence or inspection of premises - Negligence established - Damages - (1982 No. 487P - Murphy J. - 5/3/85).

Kelly v. Crowley

PROFESSIONS

Solicitor

Negligence - Sale of land - Licensed premises - Public house - Nature of licence - Failure to ascertain - Licence issued pursuant to statutory exception applicable to hotels - Premises not registered with Bord Failte as hotel - Publican's licence attached to premises but not renewable - Premises chosen by plaintiff purchaser vested in him fully - Nevertheless plaintiff's intention to acquire licensed premises not fulfilled - Nature of licence discoverable at local District Court - Nature of licence not discoverable from examination of licence or inspection of premises - Negligence established - Damages - (1982 No. 487P - Murphy J. - 5/3/85).

Kelly v. Crowley

1

Judgment of Mr. Justice Murphy delivered the 5th day of March 1985.

2

In this action the plaintiffs claim damages against the defendant for negligence in the performance of his contractual duty to render professional services as a solicitor to the plaintiffs in connection with the purchase by them of certain licensed premises known as "The Ivy Leaf", Rathdrum, Co. Wicklow.

3

The matter is a complex one and has given rise to a wide range of difficult problems. Worse still it is clear that the plaintiffs have suffered a great deal financially and emotionally.

4

The outcome of this case may well represent a very considerable tragedy for one or other or even both of the parties hereto.

5

The first named plaintiff (Mr. Kelly) was born in County Wicklow and had some experience of the licensed trade there. A number of years ago he emigrated to England where originally he worked in various licensed houses either as a manager for a Brewery or otherwise. After his marriage to the secondly named plaintiff he retired from the licensed trade - at his wife's request - and set up a business in the construction industry. He was supplying crews of labourers to building contractors.

6

Mr. Kelly was anxious to return to Ireland and to acquire and operate a public-house somewhere in County Wicklow.

7

Sometime towards the end of 1978 Mr. Kelly was advised by his brother - Noel Kelly that there were licensed premises for sale in Roundwood, County Wicklow, and the plaintiff accordingly instructed the defendant to act for him in the intended purchase of those premises. In fact Mr. Crowley's first task was to arrange finance for Mr. Kelly and that he did by obtaining accommodation from the Allied Irish Banks at their Inchicore Branch. Apparently the negotiations for the purchase of the Roundwood premises were frustrated at the last moment. Mr. Kelly had signed the contract and in evidence he complained that he had been "gazumped". Sometime later the plaintiff saw an advertisement in connection with the intended sale of the premises known as "The Ivy Leaf", Rathdrum, County Wicklow. Again it appears that his attention was drawn to this by his brother who was a foreman labourer in the area. In any event the plaintiff again contacted Mr. Crowley - this time by telephone from London - and asked Mr. Crowley to get extended finance in connection with the purchase. Mr. Dermot Kelly returned to Ireland. It appears he inspected the premises at least twice before the auction - there is some ambiguity as to the period over which the inspection took place - but the result of his inspection was to satisfy himself that the premises appeared to be a public-house with considerable residential accommodation. The premises had a bar and lounge but it did not have a reception area. Each of the plaintiffs gave evidence to the effect that it did not appear to be an hotel and was "in no way an hotel".

8

It is not suggested that Mr. Crowley ever inspected the premises for sale or that Mr. Kelly asked him to do so or indeed that it was any part of the defendant's professional obligation so to do. It appears that it was only two or three days before the auction that Mr. Crowley was contacted. Mr. Kelly arranged with Mr. Crowley that he, Mr. Crowley, should attend and bid at the auction which was apparently held in Wicklow town. Evidence was led û and indeed emphasised - that the plaintiff instructed the defendant to act on his behalf" in the buying of a public-house". Apart from that, however, it emerged - partly in direct evidence and partly in cross-examination - first that Mr. Crowley on the day of the auction went to inspect the documents with Mr. McCarroll who was the solicitor for the vendors and, secondly, that Mr. Crowley did in fact bid at the auction on behalf of Mr. Kelly and that he was the highest bidder at the figure of £103,000.00. The brochure setting out particulars of the premises for sale and the agreement dated the 30th of May, 1979 for the purchase of the premises by the plaintiffs were proved in evidence before me. In his evidence the auctioneer, Mr. Delahunt, stated that he described the premises prior to the auction in the terms set in the brochure. That brochure describes the premises as being "licensed premises with substantial living accommodation". Among other things it indicated that certified turnover figures were available and whilst it was implicit in the evidence that some information was obtained with regard to turnover it is not clear by whom it was provided or by whom it was, in the first place, obtained. The contract describes the premises as:

"All that and those The Ivy Leaf, Rathdrum, County Wicklow, held in fee simple together with the licence attached thereto....."

9

The plaintiffs took possession of the premises sometime towards the end of July 1979 and re-opened the same for business as a public-house.

10

The interim transfer of the license attaching to the premises is dated the 6th of September, 1979 and the transfer confirmed on the 1st of November, 1979.

11

On the 10th October, 1980 Superintendent T.J. Neagle gave notice of his intention to oppose the reneval of the licence held in respect of the premises at the then pending annual licensing District Court to be held at Rathdrum on the 6th of October, 1980. The grounds of the objection were as follows:

12

2 "1. That your premises are not registered with Bord Fáilte in accordance with the provisions of Section 20 of the Intoxicating Liqour Act 1960to enable you to obtain renewal of your licence.

13

2. That your premises has ceased to be run as an hotel and does not come within the definition of an hotel within the meaning of the licensing laws."

14

The matter was adjourned from time to time but the objections were ultimately upheld and renewal was refused by the District Justice on the 7th of April, 1981. An appeal was taken to the Circuit Court sitting at Wicklow and on the 26th day of June, 1981 that appeal was dismissed. The plaintiff then reviewed his extremely unfortunate position with the benefit of his legal and other advisers. The premises were for a time put on the books of an auctioneer but shortly afterwards Mr. Kelly withdrew those instructions. On the 5th of August, 1981 proceedings (Reference Number 1981 No. 8491P) were instituted by the plaintiffs against the vendors John O'Sullivan and Brigid O'Sullivan. It may be noted that in those proceedings Mr. Finbarr Crowley acted as solicitor on behalf of the plaintiffs for the purpose of issuing and serving the Plenary Summons but ceased to act on behalf of the plaintiffs - on his own suggestion on the basis that there might be a conflict of interest - before the delivery of the Statement of Claim on the 5th of November, 1982. On the 18th of January, 1982 the Plenary Summons was issued in the proceedings herein. As late as the 19th of November 1984 an application was made on behalf of Mr. Crowley for liberty to issue and serve a Third Party Notice on the vendors and I was informed by counsel that that application was refused on the basis that the case against the vendors and the case against the solicitor could be heard together and that is in fact what was done. Whilst it was desirable to avoid the expense and inconvenience which would have been caused by calling the considerable number of witnesses who gave evidence in this case on two separate occasions to prove substantially the same facts and likewise it would have been highly undesirable to postpone further the hearing of either case,...

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12 cases
  • Mason Hayes and Curran v Queally
    • Ireland
    • High Court
    • 26 October 2018
    ...such practice would ordinarily amount to compelling evidence as to whether or not that solicitor acted negligently. In Kelly v. Crowley [1985] I.R. 212 Murphy J. stated at pg. 220: ‘Clearly the existence of a general practice – where such is established – can be of significance in a case of......
  • Tuohy v Courtney
    • Ireland
    • Supreme Court
    • 26 July 1994
    ...interest which he intended to purchase. Taylor v. Ryan and Jones (Unreported, High Court, Finlay P., 10 March, 1983); Kelly v. CrowleyIR [1985] I.R. 212 and Roche v. PeilowIR [1985] I.R. 232 considered. 2. That as he had not discovered that he had a cause of action until 1985, and as his so......
  • Re Bannerton
    • Ireland
    • Supreme Court
    • 14 February 1986
    ...General) v. Judge Durcan [1964] I.R. 279. Taylor v. Pyan (Unreported, High Court, Finlay P., 10th March, 1983). Kelly v. Crowley [1985] I.R. 212. Case Stated. On the 14th December, 1983, District Justice Oliver Macklin stated a case, pursuant to s. 52, sub-s. 1 of the Courts (Supplemental P......
  • Tuohy v Courtney
    • Ireland
    • High Court
    • 26 July 1994
    ...RESTRICTIONS (AMDT) ACT 1967 LANDLORD & TENANT (AMDT) ACT 1980 S13(1)(b) TAYLOR V RYAN UNREP FINLAY 10.3.83 1983/12/3596 KELLY V CROWLEY 1985 IR 212 ROCHE V PIELOW 1985 IR 232 STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)(b) STATUTE OF LIMITATIONS 1957 S11(2)(b) CONSTITUTION ART 40.3.2 CONS......
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