Michael Noble v Deirdre-Ann Barr, Joseph Beashel, Ann-Marie Bohan, Fergus Bolster, George E L Brady, Brian D Buggy, Michael David Byrne, Alan S Chiswick, Liam Anthony Collins, Alan Connell, Bonnie A Costelloe, Dualta A Counihan, Niamh Counihan, Sharon C Daly, Christian Donagh, Brian P Doran, Tara M Doyle, Joseph Duffy, Nicola Dunleavy, Bryan G Dunne, Deirdre Dunne, John W Dunne, Pat English, Aidan Fahy, Turlough J Galvin, Libby Garvey, John F Gill, Thomas Hayes, Robert Heron, Shane Hogan, Niall Horgan, Ruth Hunter, Michael G Jackson, Helen G Kelly, Damien Keogh, Carina Mary, C.R Lawlor, Shay Lydon, Ronan F McLoughlin, Paraic T Madigan, Darren Maher, Patrick G Molloy, Brid Munnelly, Julie Murphy-O'Connor, Helen Noble, Peter O'Brien, John C O'Connor, Michael M O'Connor, Pauline O'Donovan, an

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr Justice Maurice Collins
Judgment Date21 October 2021
Neutral Citation[2021] IECA 269
Docket NumberRECORD NUMBER 2019/506
Between
Michael Noble
Plaintiff/Appellant
and
Deirdre-Ann Barr, Joseph Beashel, Ann-Marie Bohan, Fergus Bolster, George E L Brady, Brian D Buggy, Michael David Byrne, Alan S Chiswick, Liam Anthony Collins, Alan Connell, Bonnie A Costelloe, Dualta A Counihan, Niamh Counihan, Sharon C Daly, Christian Donagh, Brian P Doran, Tara M Doyle, Joseph Duffy, Nicola Dunleavy, Bryan G Dunne, Deirdre Dunne, John W Dunne, Pat English, Aidan Fahy, Turlough J Galvin, Libby Garvey, John F Gill, Thomas Hayes, Robert Heron, Shane Hogan, Niall Horgan, Ruth Hunter, Michael G Jackson, Helen G Kelly, Damien Keogh, Carina Mary, C.R Lawlor, Shay Lydon, Ronan F McLoughlin, Paraic T Madigan, Darren Maher, Patrick G Molloy, Brid Munnelly, Julie Murphy-O'Connor, Helen Noble, Peter O'Brien, John C O'Connor, Michael M O'Connor, Pauline O'Donovan, Anthony G O'Grady, Cara D O'Hagan, Robert G O'Shea, Mark O O'Sullivan, Alistair Payne, Christopher J Quinn, William A Quirke, Timothy Scanlon, Patrick F.G Spicer, Patrick Sweetman, Gerard Mark Thornton, Stanley G Watson, (Practising Under the Style and Title of Matheson Solicitors (A Firm) Formerly known as Matheson Ormsby Prentice Solicitors (A Firm)
Defendants/Respondents

[2021] IECA 269

Donnelly J

Faherty J

Collins J

RECORD NUMBER 2019/506

THE COURT OF APPEAL

CIVIL

Negligence – Breach of duty – Statute barred – Appellant seeking damages for negligence and breach of duty – Whether the appellant’s claim against the respondents was statute barred

Facts: The plaintiff/appellant, Mr Noble, claimed the recovery of financial loss arising from alleged professional negligence. The action had its origin in two option agreements entered into by the plaintiff with Celtic Waste Ltd (which later changed its name to Greenstar Holdings Ltd) on 24 November 2000. The High Court (O’ Regan J) heard a preliminary issue as to whether the plaintiff’s claim was statute-barred and in her reserved judgment ([2019] IEHC 590) the Judge held that it was. The plaintiff appealed to the Court of Appeal from that decision. The appeal was concerned only with the claim for negligence and breach of duty. As regards the royalty payments, the plaintiff said that the Judge was wrong to suggest that the plaintiff had suffered the loss of the right to enforce the royalty payments in 2005; the contractual right to royalty payments remained and was being honoured, with substantial payments being made for 2010 and 2011. The plaintiff said there was “an air of complete unreality and artificialness” in the suggestion that he should have sued the defendants/respondents, Matheson Solicitors, for loss of royalty payments prior to the appointment of the receiver and the non-payment of royalties triggered by it; any such claim would have been met with the argument that it was premature given that no loss had actually occurred at that point and any future loss was entirely contingent. As regards the second option and the effect on that option of the transfer in 2005, the plaintiff said that only a potential for loss, rather than any actual loss, had arisen in 2005 when the lands at Ballynagran, County Wicklow were transferred to Greenstar Properties Ltd. According to the plaintiff, had the determination date occurred prior to August 2012 (when the Greenstar Group began to break up and a receiver was appointed to Greenstar Holdings Ltd), Greenstar Holdings Ltd would have been in a position to ensure the transfer of the lands back to the plaintiff and would have done so; actual loss only occurred in 2012 when Greenstar Holdings Ltd lost the ability to ensure that the buy-back option would be respected.

Held by Collins J that the proceedings were commenced on 12 September 2013 and the plaintiff’s cause of action in negligence arising from the first option was statute-barred only if that cause of action accrued before 13 September 2007. Collins J held that the cause of action accrued only if actual damage was sustained by the plaintiff prior to that date. Even if a probability of future loss was sufficient to constitute damage, Collins J held that the question arose as to whether there was evidence from which it could properly be inferred that loss became probable at some point prior to September 2007. In Collins J’s opinion, the limited evidence did not allow any inference that loss became probable at any point prior to September 2007. Collins J therefore concluded that the plaintiff’s claim in respect of the first option was not statute-barred. Proceedings not having issued within six years of the 2005 transaction, as required by s. 11(2)(a) of the Statute of Limitations Act 1957, Collins J held that the plaintiff’s claim in respect of the 2005 transaction leading to the transfer of the Ballynagran lands to Greenstar Properties Ltd was statute-barred. Collins J held that the plaintiff could not therefore pursue his claim for loss arising from the loss of the second option or for any other loss or damage claimed to arise from the 2005 transaction.

Collins J held that he would allow the plaintiff’s appeal to the extent indicated above.

Appeal allowed in part.

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 21 October 2021

BACKGROUND
1

This appeal raises once again the difficult issue of when a cause of action in tort for negligence accrues for the purposes of section 11(2)(a) of the Statute of Limitations Act 1957 (“ the 1957 Act”). That issue arises in the context of a claim for the recovery of financial loss arising from alleged professional negligence.

2

The High Court (O'Regan J) heard a preliminary issue as to whether the Plaintiff's claim was statute-barred and, for the reasons set out in her reserved judgment ( [2019] IEHC 590) the Judge held that it was. The Plaintiff now appeals from that decision. The Plaintiff accepts that any breach of contract claim he has is statute-barred and accordingly the appeal is concerned only with the claim for negligence and breach of duty.

3

The action has its origin in two option agreements entered into by the Plaintiff with Celtic Waste Limited (which later changed its name to Greenstar Holdings Limited) on 24 November 2000. These agreements appear to have been part of a larger transaction whereby Celtic Waste Limited acquired the waste business of Noble Waste Disposal Limited, a company connected to the Plaintiff.

4

By the first of those options (“the First Option”) the Plaintiff granted Celtic Waste Limited an option to acquire certain lands at Ballynagran, County Wicklow (“ the Ballynagran Lands”), comprising some 102 acres in total, for the purposes of developing a waste landfill on a portion of the lands (ultimately comprising 48 acres). The Plaintiff did not own the lands at the time but he held options to acquire them. The First Option provided that, on its exercise, Celtic Waste Limited would pay the Plaintiff the “ Agreed Consideration” (€3.25 million) and thereafter would pay “ the Royalty Payments” in the manner set out in the Schedule to the First Option. The Schedule provided for an annual payment, amounting to 10% of the “ Net Income” arising from the operation of the landfill (to be calculated in the manner provided for in detail in the Schedule). 1 However, no Royalty Payments would be payable until the point when accrued payments exceeded the “ Initial Payment” (€3 million) and then only in the amount of the excess. 2 In the absence of any time-limit on the payment of royalties, it appears that they were intended to continue throughout the working life of the landfill (subject of course to their being “ Net Income” in any given accounting period).

5

The First Option provided that Celtic Waste Limited was entitled to assign its rights and obligations under it to any “ Related Company” (defined by reference to section 140(5) of the Companies Act 1990). In contrast, the Plaintiff was not permitted to assign or transfer his rights under the First Option.

6

By the second option agreement (“ the Second Option”) Celtic Waste Limited granted the Plaintiff an option to re-acquire the Ballynagran Lands, exercisable within a year of the “ Determination Date”, that being the date on which Celtic Waste Limited received notice from the Environmental Protection Agency that the “ Aftercare Process” (in essence the remediation of the landfill site at the end of its life) had been completed to its satisfaction. The Option Price was €1.

7

The Second Option permitted Celtic Waste Limited to assign its interest under the agreement to a Related Company. Again, the Plaintiff was not permitted to assign or transfer his rights under the Second Option.

8

On 20 January 2005, Arthur Cox solicitors wrote to the Plaintiff giving notice on behalf of Greenstar Holdings Limited (as Celtic Waste Limited was by then called) that it was exercising its option to acquire the Ballynagran Lands.

9

A draft contract for sale was appended to the First Option and on the exercise of the option it was that form of contract that the parties were to execute. It named Greenstar Holdings Limited as purchaser. However, when the contract for sale came to be executed on 23 February 2005, it identified the purchaser as Greenstar Properties Limited. The contract for sale made no reference to royalty payments. The precise circumstances in which Greenstar Properties Limited came to be substituted for Greenstar Holdings Limited are unclear — the issue is studiously avoided in the affidavit evidence put before the High Court by the Defendants (“ Matheson”) — but it seems to have occurred late in the day and it appears that Matheson (who were at all material times acting for the Plaintiff) either failed to notice the change or failed to appreciate its potential significance.

10

In any event, the Ballynagran Lands were duly transferred to Greenstar Properties Limited and with effect from 29 September 2005 that company was...

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