Mackie v Wilde (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [S.C. No. 50 of 1992]
• Court: Supreme Court

Supreme Court

[S.C. No. 50 of 1992]

Mackie v. Wilde (No. 2)

Leslie Mackie

Plaintiff

and

David Wilde and Hellmut Longin, Defendants (No. 2)

Cases mentioned in this report:-

Lowry v. Reid [1927] N.I. 142.

Maddison v. Alderson (1883) 8 App. Cas. 467.

Steadman v. Steadman[1976] A.C. 536; [1974] 3 W.L.R. 56; [1974] 2 All E.R. 977.

Contract - Oral agreement - Part performance - Fishing rights - Whether acts on part of plaintiff sufficient to show intention to perform contract.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Barron J., infra.

The action was commenced by plenary summons dated the 22nd February, 1990, and the trial of the action was heard by the High Court (Costello J.) on the 30th January, 1992. The first defendant appealed by way of notice of appeal dated the 20th February, 1992, to the Supreme Court against the judgment and order of the High Court (Costello J.). The appeal was heard by the Supreme Court (Hamilton C.J., Barrington and Barron JJ.) on the 18th November, 1997.

The plaintiff and first defendant were the owners of a fishery, the rights of which were set out in an indenture of the 29th March, 1920. The indenture divided and regulated the operation of the fishery. It provided that the arrangements for the fishery could be changed by agreement in writing. In 1984, the plaintiff and the first defendant met and agreed to run the fishery as a joint fishery in accordance with a set of rules drawn up by the first defendant. In 1985, the plaintiff suggested changing the existing agreement. The plaintiff met with the first defendant at the beginning of 1986 and claimed that agreement was reached to limit the number of licences to 25 annual licences and a few daily tickets. For two to three years, the plaintiff sought to obtain a written agreement limiting numbers. Proceeding were ultimately brought by the plaintiff to establish a binding agreement that there should only be 25 rods per side.

The High Court (Costello J.), found that there was a concluded agreement that each party would restrict the number of annual tickets to 25 and would also be at liberty to issue up to ten day tickets.

On appeal, it was submitted on behalf of the first defendant that the evidence showed only some element of agreement and also that there were no sufficient acts of part performance by the plaintiff to make the agreement enforceable.

The plaintiff argued that there was clear evidence on which the trial judge was entitled to hold that there was a contract between the parties. The plaintiff had acted to his detriment in altering his position as it was under the 1920 deed. The acts of part performance were referable to that concluded agreement.

Heldby the Supreme Court (Hamilton C.J., Barrington and Barron JJ.), in allowing the appeal, 1, that the doctrine of part performance was based on the principles of equity and there were three things to be considered:-

• (a) the acts on the part of the plaintiff said to have been in part performance;

• (b) the involvement of the defendant with respect to such acts;

• (c) the oral agreement itself.

2. That it was essential that:-

• (a) there was a concluded oral contract;

• (b) that the plaintiff acted in such a way that showed an intention to perform that contract;

• (c) that the defendant induced such acts or stood by while they were being performed; and

• (d) it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the Statute of Frauds to prevent performance of the contract.

Steadman v. Steadman [1976] A.C. 536 approved.

Cur. adv. vult.

Hamilton C. J. 17th December, 1997

I have read the judgment to be delivered by Barron J. and I agree.

Barrington J.

I also agree.

Barron J.

The plaintiff and the first defendant were at all material times the owners of a joint fishery on stretches of the Finn river and the Reelan river in County Donegal. These rights accrued to them as the owners of the Glenmore estate and the Cloghan estate respectively.

The respective rights of the owners of the fishery are set out in an indenture of the 29th March, 1920, and in particular in the third schedule thereto. The terms of the third schedule were as follows:

"Arrangement as to the joint fishing of Glenmore and Cloghan, the river Finn as between the respective owners:-

Only three rods each to be permitted.

Beat number 1 from Galwollie Pool to the railway bridge below the red bridge (inclusive).

Beat number 2 from the railway bridge above mentioned to the stepping stones at Toman Catholic Chapel inclusive (but excepting the exclusive fishing belonging to Cloghan).

Glenmore to have number 1 beat on Mondays, Wednesdays and Fridays and number 2 beat on Tuesdays, Thursdays and Saturdays.

Cloghan to have number 1 beat on Tuesdays, Thursdays and Saturdays and number 2 beat on Mondays, Wednesdays and Fridays.

Trout fishing not restricted, but not to interfere with well-known salmon pools.

Sundays, no restrictions on either part."

The main body of the conveyance also provided that these arrangements might from time to time be changed by agreement in writing between the owners.

By agreement between the then owners in the 1960s the remaining stretches of the fishery were divided into four further beats and a similar arrangement to that contained in the deed operated in relation to these further beats. Such arrangement continued between the respective owners up to the year 1971. Thereafter, for various reasons mainly because the then owner of the Cloghan estate...