Nutgrove Sand and Gravel Ltd v Sherlock

• Jurisdiction: Ireland
• Judge: Mr. Justice David Keane
• Judgment Date: 02 November 2018
• Neutral Citation: [2018] IEHC 621
• Court: High Court
• Docket Number: [2012 No. 1279P]
• Date: 02 November 2018

[2018] IEHC 621

THE HIGH COURT

Keane J.

[2012 No. 1279P]

BETWEEN

NUTGROVE SAND

AND

GRAVEL LIMITED

PLAINTIFF

AND

JAMES SHERLOCK

DEFENDANT

AND

SEAN WISELY

AND

JOHN WISELY

DEFENDANTS TO THE COUNTERCLAIM

Breach of agreement – Injunctive relief – Counterclaim – Plaintiff seeking permanent injunctions – Whether there was the necessary evidence of loss or damage before the court to permit an award of damages

Facts: The plaintiff, Nutgrove Sand and Gravel Ltd, a quarry operating company, in a plenary action, claimed for breach of agreement against the defendant, Mr Sherlock, an owner of quarry lands, who denied that claim and counterclaimed for breach of agreement against Mr Wisely and Mr Wisely Jnr, a father and son, who were directors of Nutgrove. Further, Nutgrove sought the attachment and committal to prison of Mr Sherlock for deliberate breach of an interlocutory order already made in the proceedings on 2 July 2015 by Gilligan J.

Held by the High Court (Keane J) that it would grant Nutgrove the permanent injunctions that it sought in its statement of claim, subject to whatever submissions there may be concerning the appropriate terms of those orders: first, a permanent injunction restraining Mr Sherlock from preventing or impeding access to the quarry site; second, an injunction restraining Mr Sherlock from interfering with the conduct of Nutgrove's business; and third, an injunction preventing Mr Sherlock from dealing with his lands in any manner that causes prejudice to Nutgrove. Keane J dismissed Mr Sherlock's counterclaim in its entirety. Keane J did not believe that there was the necessary evidence of loss or damage before the court to permit an award of damages to Nutgrove for Mr Sherlock's breach of the lower field quarry licence agreement, subject to whatever submissions the parties may wish to make on that issue. Keane J came to the conclusion that Nutgrove's application for the attachment and committal of Mr Sherlock for his alleged contempt of the order made by Gilligan J on 2 July 2015 was legally misconceived; the relevant complaint was that Mr Sherlock was in breach of the heads of agreement made a rule of court, rather than in breach of an order of the court, which did not provide the necessary platform for an application for attachment and committal.

Keane J held that he would hear the parties on whether the interlocutory injunctions sought by Nutgrove to facilitate the restoration works agreed with the council were necessary or appropriate in view of the permanent injunctions granted.

Relief granted in part.

JUDGMENT of Mr. Justice David Keane delivered on the 2nd November 2018

Introduction

1 In this plenary action, Nutgrove Sand and Gravel Limited ("Nutgrove"), a quarry operating company, claims for breach of agreement against James Sherlock, an owner of quarry lands, who denies that claim and counterclaims for breach of agreement against Sean Wisely and John Wisely ("Mr Wisely Jnr"), a father and son (together, "the Wiselys") who are directors of Nutgrove. Further, Nutgrove seeks the attachment and committal to prison of Mr Sherlock for deliberate breach of an interlocutory order already made in the proceedings on 2 July 2015 by Gilligan J.

The conflicting claims

i. Nutgrove's claim

2 Nutgrove advances the following case.

3 In April 2005, Mr Sherlock agreed to allow it to develop and operate a limestone quarry on lands described as "the old quarry lands" at Kilmainham, Mountmellick, County Laois. Mr Sherlock represented himself as the owner of those lands and, indeed, confirmed that was so in a letter, dated 9 January 2006, that he wrote to Laois County Council ("the Council"). Nutgrove duly expended a significant sum of money in the preparation and submission of an application for planning permission for the development of a quarry there, with the knowledge and consent of Mr Sherlock. Only when that application for planning permission was opposed by Mr Sherlock's brother did Nutgrove become aware that the old quarry lands still formed part of the unadministered estate of Mr Sherlock's deceased father (also James Sherlock), who had died intestate in 1972. Nutgrove then withdrew that application for planning permission on 17 January 2007, having incurred significant losses.

4 Undeterred, Nutgrove entered into a further agreement with Mr Sherlock in November 2007, whereby it obtained the exclusive right to quarry limestone rock on certain adjoining lands to the south, referred to in these proceedings as "the lower field", directly owned by Mr Sherlock. Nutgrove was to apply for planning permission and, should it be obtained, to develop and operate the quarry. Nutgrove was to pay Mr Sherlock €20 per load of saleable limestone rock extracted from the quarry for the life of the quarry or the duration of the planning permission; whichever occurred sooner. Mr Sherlock was to have the right to extract stone and gravel from the quarry for his own personal use. Nutgrove was to make aggregate payments to Mr Sherlock in accordance with the agreement in the first week of every month.

5 Nutgrove expended considerable time, effort and money in applying for, and obtaining, planning permission, and in developing the quarry. Planning permission was granted on 20 January 2009. By the beginning of 2012, Nutgrove had spent in excess of €134,000 to that end.

6 From September 2011, relations between the parties began to deteriorate. Mr Sherlock, directly or through others, interfered with Nutgrove's operation of the quarry, thereby breaching the agreement between them, in the following ways:

(i) knocking down a security barrier that Nutgrove had erected at the entrance to the quarry site on 31 December 2011 at Mr Sherlock's request;

(ii) on 3 or 4 January 2012, deliberately blocking access to the quarry by parking a combine harvester at the entrance of the laneway to it, preventing the operation of the quarry and causing damage and loss to Nutgrove's business;

(iii) on 10 January 2012, deliberately preventing a blasting operation, causing further loss and damage to Nutgrove's business;

(iv) and on 1 February 2012, deliberately blocking access to the quarry by placing a tractor and slurry tank across the entrance to it, preventing access and causing further loss and damage to Nutgrove's business.

7 Nutgrove seeks a number of reliefs: first, a permanent injunction restraining Mr Sherlock from preventing or impeding access to the quarry site; second, an injunction restraining Mr Sherlock from interfering with the conduct of Nutgrove's business; third, an injunction preventing Mr Sherlock from dealing with his lands in any manner that causes prejudice to Nutgrove; and fourth, damages.

ii. Mr Sherlock's defence to Nutgrove's claim

8 In his defence and counterclaim, Mr Sherlock pleads as follows.

9 In April 2005, the Wiselys approached Mr Sherlock to propose operating a limestone quarry at the lands known as the quarry field. Mr Sherlock had been in exclusive possession and occupation of those lands since his father's death in 1972. From the very outset, the Wiselys knew that Mr Sherlock was not the owner of the quarry field and knew that Mr Sherlock's brothers claimed a share in the ownership of those lands and that they objected to the Wiselys operating a quarry there. The Wiselys did not spend any money on the proposed development of a quarry at the quarry field nor was there any joint venture between Mr Sherlock and either Nutgrove or the Wiselys in that regard. The letter that Mr Sherlock wrote to the Council, dated 9 January 2006, confirming his ownership of the quarry field was one drafted by the Wiselys. The Wiselys told Mr Sherlock that it was "a formality required for administration purposes" by the Council and that he "must" sign it. The Wiselys did not suffer any loss in seeking to develop a quarry at the quarry field and, if they did, Mr Sherlock was not responsible for it.

10 In November 2007, Mr Sherlock entered an agreement with the Wiselys (and not Nutgrove) to permit them to extract and quarry limestone from the lower field. That agreement included the following terms:

(a) The Wiselys would carry out the quarrying activity through the vehicle of their company, Nutgrove.

(b) Nutgrove would apply for planning permission for the quarrying operation and would operate the quarry in accordance with that permission.

(c) The Wiselys would pay Mr Sherlock €1 per tonne of rock extracted.

(d) The Wiselys would pay Mr Sherlock a rent in the sum of €8,000 per annum.

(e) Nutgrove would only quarry and extract rock within the area, and using the access, specified in the planning permission.

(f) Nutgrove would not cause damage to the adjoining lands or the support for those lands.

(g) Nutgrove would not cause a nuisance or damage to Mr Sherlock's lands or those of his neighbours.

(h) Nutgrove would not interfere with the water table.

(i) Nutgrove was permitted to connect with Mr Sherlock's electricity, water and sewage services on a temporary basis, until the direct installation of those services.

(j) The Wiselys would ensure that Nutgrove would comply with the terms of the agreement.

11 Despite Mr Sherlock's demand, the Wiselys refused to pay him for the rock Nutgrove extracted.

12 Nutgrove breached in a very substantial way the terms of the planning permission.

13 Nutgrove did not expend €134,000 on the development and operation of the quarry as it claims.

14 Relations between the parties deteriorated from September 2011 because Nutgrove fundamentally breached the terms of the planning permission for the development and operation of the quarry, causing damage to the environment and nuisance and damage to Mr Sherlock's property.

15 Mr Sherlock blocked the entrance to the quarry in February 2012 to prevent Nutgrove from operating the quarry in breach of contract; breach of environmental law; breach of Mr Sherlock's private...