Palamos Properties Ltd v Brooks

• Jurisdiction: Ireland
• Judge: Mr. Justice Feargus M. Flood
• Judgment Date: 01 January 1996
• Neutral Citation: 1996 WJSC-HC 2160
• Court: High Court
• Docket Number: [1987 No. 1603P],No. 1603P./1987
• Date: 01 January 1996

PALAMOS PROPERTIES LTD v. BROOKS

BETWEEN

PALAMOS PROPERTIES LIMITED AND HUGH O'NEILL

PLAINTIFFS

AND

PHILIP T. BROOKS, GERALD HICKEY, RAYMOND WALKER, BRIAN J. BOHAN, JONATHAN P.T. BROOKS, JOHN F. BUCKLEY, W. JOHN CUNNINGHAM, GERARD HICKEY, JAMES J. O'REILLY, ANTHONY M.D. KIRWAN, VALENTINE J.D. KIRWAN, THOMAS J. O'REILLY, FRANKLIN O'SULLIVAN AND SHARAN SCALLY (PRACTISING AS HICKEY, BEAUCHAMP, KIRWAN & O'REILLY)

DEFENDANTS

1996 WJSC-HC 2160

No. 1603P./1987

THE HIGH COURT

Synopsis:

PRACTICE

Pleadings

Amendment - Leave - Application - Delay - Reasons - Reluctance of defendant solicitors to plead statute of limitations against former client - Defendants also sought to plead contributory negligence by plaintiff - Plaintiff's claim to damages for defendants" alleged negligence - Delay of six years - Amendments allowed - Rules of the Superior Courts, 1986, order 28, r. 1 - (1987/1603 P - Flood J. - 11/1/95) [1996] 3 IR 597

|Palamos Properties Ltd. v. Brooks|

Citations:

RSC O.28 r1

CROPPER V SMITH 1883 26 CH D 700

KETTEMAN V HANSEL PROPERTIES LTD 1988 1 AER 38

CLARAPEDE & CO V COMMERCIAL UNION ASSOCIATION 1883 32 WR 262

BOWER V MAXWELL UNREP CA WOOLF 8.5.89 (UK)

SHEPPERTON INVESTMENT CO LTD V CONCAST (1975) LTD UNREP BARRON 21.12.92 1993/5/1393

MCFADDEN V DUNDALK & DOWDALLS HILL COURSING CLUB LTD UNREP SUPREME 22.4.94

1 Judgment of Mr. Justice Feargus M. Flood delivered this 11th day of January, 1995.

THE PLAINTIFFS

2 The first named Plaintiff is a limited liability company registered in the Channel Islands. The second named Plaintiff is a controlling shareholder and director of the first named Plaintiff and resides at 8 Effra Road in the City of Dublin. The Plaintiffs claim to be successors in title to the interest formerly held by Delvin Limited in certain lands at Foxrock in the County of Dublin (hereinafter called the "Delvin lands").

THE DEFENDANTS

3 The Defendants were at all times material hereto partners in a firm of solicitors practising as Hickey Beauchamp & O'Reilly at Dollard House, Dublin.

THE CLAIM

4 The Plaintiffs" claim in these proceedings is for damages for negligence, breach of duty and breach of contract by the Defendants whilst acting as solicitors for the first named Plaintiff on and subsequent to the month of August 1976 in relation to their affairs and in relation to the sale of the Delvin lands.

5 This matter comes before the Court by way of Notice of Motion for

6 (1) an Order striking out the claim of the first named Plaintiff herein as against the Defendants by reason of the dissolution and striking off of the first named Plaintiff from the register of companies, Jersey, Channel Islands and by reason of its non-existence at law in the said jurisdiction or in this jurisdiction,

7 (2) an Order granting leave to the Defendants to amend their defence and Counterclaim herein in terms of draft amended defence, and

8 (3) for further and other incidental relief.

THE FACTS

9 The essential facts which are either admitted or deposed to on Affidavit cover a period since 1976.

10 In the Statement of Claim it is said that the second named Plaintiff engaged the Defendants for reward to act on his behalf and in due course on behalf of the first named Plaintiff in respect of the sale of the Delvin lands situated at Foxrock in the County of Dublin. Early in 1977 the Defendants were instructed to sell part of the said Dublin lands for which planning permission had been obtained from the County Council of Dublin (hereinafter called "the building land") and to retain the remainder of the lands which under the terms of the planning permission were reserved free from building in order to facilitate the widening of the Stillorgan Road, which remainder of the lands are hereinafter called "the reserved lands".

11 The Defendants as such solicitors prepared an agreement under which the Plaintiffs" said interest in the buildings lands were sold to Fabrica Investments Limited together with the benefit of certain further rights over the reserved lands, then in the control of the Plaintiffs. The said agreement was dated March 1st, 1978 and the Deed of Conveyance dated April 14, 1978.

12 The interest of the Plaintiffs" said predecessors in title in the reserved lands was transferred to the first named Plaintiff by Indenture of Conveyance dated the day of February, 1979. By agreement in writing dated the 27th day of November, 1979 the Plaintiffs agreed to transfer to the County Council the reserved lands free of incumbrances.

13 On and subsequent to the said agreement, on examination of the title the County Council ascertained that the said lands were subject to the incumbrances created on the sale of the building lands and refused to accept the title.

14 The Plaintiffs issued proceedings for specific performance against the County Council by Plenary Summons dated the 13th day of November, 1981 and the said proceedings were listed for trial on or about the 26th day of April 1994. On the date of hearing the Plaintiffs on advice from Counsel abandoned the said proceedings.

15 Negotiations then ensued with the County Council and the County Council by agreement dated the 20th day of March, 1986 agreed to take a conveyance of the reserved lands and to pay therefor the sum of £250,000 together with interest from the date on which the Notice of Entry on the said reserved lands was served by the County Council which, after certain deductions, amounted to a total sum of £255,758.00.

16 The Plaintiffs claim that by reason of the fact that the agreement for sale to the County Council dated the 27th of November, 1979 was incapable of being enforced resulted in loss of benefit of the said contract price from the 1st day of January, 1980 up to and including the 20th day of March, 1986 together with interest at the Court rate of interest from that date.

17 The Plaintiffs claim that the said loss is occasioned by the negligence, breach of duty and breach of contract of the Defendants as such solicitors as aforesaid in the conduct and preparation of the documents relating to the sale of the building lands. On February 19th, 1987 the Plaintiffs issued the proceedings in the present case by way of Plenary Summons to recover their said loss.

18 The chronological sequence of events is as hereunder set out:

19 (a) July 9th, 1987 - Statement of Claim

20 (b) February 4th, 1988 - Notice for Particulars from the Defendants as solicitors on record in the proceedings

21 (c) March 29th, 1988 - Reply to Notice for Particulars

22 (d) April 7th, 1988 - Defence and Counterclaim — delivered by Messrs Hickey, Beauchamp, Kirwan & O'Reilly

23 (e) September 5th, 1988 - Notice for further Particulars

24 (f) September 6th, 1988 - Notice of change of solicitors

25 (g) September 28th, 1988 - Reply to further Notice for Particulars

26 (h) October 12th, 1988 - Memorandum of Appearance by the solicitors presently on record

27 (i) January 11th, 1989 - Notice of Motion for Discovery

28 (j) March 1989 - Affidavit of Discovery by Plaintiffs

29 (k) March 22nd, 1989 - Affidavit of Discovery by Defendants

30 (l) October 15th, 1992 - Notice of Intention to Proceed

31 (m) December 10th, 1992 - Reply and Defence to Counterclaim

32 (n) January 21st, 1993 - Reply and Defence to Counterclaim

33 (o) July 8th, 1993 - Notice of Trial,

34 (p) April 26th, 1994 - Case listed for hearing but not reached and adjourned to the next list to fix dates,

35 (q) May 18th, 1994 - Notice of Motion for the Relief claimed which is presently before the Court.

36 It is common case that the delay which occurred between March, 1989 and October, 1992 on the part of the Plaintiffs in progressing the action was entirely due to a major illness within the Plaintiffs" solicitors firm and is in no way considered by the Defendants to constitute dilatory conduct on the part of the Plaintiffs or their advisers.

37 The Defendants" Notice of Motion as already indicated seeks two reliefs. The first is for an Order striking out the claim of the first named Plaintiff by reason of the dissolution and striking off of the first named Plaintiff from the register of companies, Jersey, Channel Islands. It is correctly said that at the date at which this matter came into the list for trial the first named Plaintiff company was non-existent at law in Jersey. That situation has since been put right by means of an application to restore the company to the register which was successful and accordingly the first named Plaintiff company is presently validly in existence and in my opinion the said Order has retrospective effect. No doubt at the date the matter was listed for trial a very interesting legal problem could have confronted the Court. At the present date that problem no longer exists. Accordingly I do not propose to grant any relief under the said claim in the Notice of Motion.

38 The second relief claimed in the Notice of Motion is an Order giving leave to amend the...