Patrick Kelly, Simon Kelly, Emma Kelly, Christopher Kelly, John McCormack, Brian McCormack, Niall McCormack, Alan McCormack, and Pierse Contracting Ltd T/A The North Wall Quay Partnership v Clarion Quay Management Company Ltd by Guarantee

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 02 June 2021
• Neutral Citation: [2021] IECA 162
• Docket Number: Record No. 2019/60
• Date: 02 June 2021
• Court: Court of Appeal (Ireland)

Between/

Patrick Kelly, Simon Kelly, Emma Kelly, Christopher Kelly, John McCormack, Brian McCormack, Niall McCormack, Alan McCormack, and Pierse Contracting Limited T/A The North Wall Quay Partnership

Plaintiffs/Appellants

and

Clarion Quay Management Company Limited by Guarantee

Defendant/Respondent

Between/

John McCormack, Brian McCormack, Niall McCormack, Alan McCormack, Pierse Contracting Limited, and Patrick Kelly T/A The Campshire Partnership

Plaintiffs/Appellants

and

Clarion Quay Management Company Limited by Guarantee

Defendant/Respondent

[2021] IECA 162

Whelan J.

Collins J.

Binchy J.

Record No. 2019/60

Record No. 2019/59

THE COURT OF APPEAL

Joinder – Trespass – Liability – Appellants seeking orders permitting the joinder of the directors of the respondent and the management agent of the respondent as co-defendants to the proceedings – Whether the trial judge failed to recognise that liability for trespass extends to any person who directs a trespass and is not limited to persons who physically enter a property

Facts: The plaintiffs/appellants in each case, on 16th October 2018, issued motions whereby they sought orders, pursuant either to O.15 r.4 and/or r.13 of the Rules of the Superior Courts, and/or the inherent jurisdiction of the High Court, permitting the joinder of the directors of the defendant/respondent, Clarion Quay Management Company Limited by Guarantee, and the management agent of the respondent (the directors) as co-defendants to the proceedings. The appellants also sought an order pursuant to O.28 r.1 of the Rules of the Superior Courts granting them liberty in each case to amend the plenary summons in terms of the draft amended plenary summons exhibited to the grounding affidavit, sworn in support of each motion, by Mr A McCormack. In an ex tempore judgment, the High Court (Haughton J) refused the reliefs sought. The appellants appealed to the Court of Appeal on the grounds that the trial judge: (1) applied an incorrect and too exacting a test to the application to join the directors as co-defendants; (2) failed to recognise that liability for trespass extends to any person who directs a trespass, and is not limited to persons who physically enter a property; (3) misapplied principles of director liability and failed to have regard to the appellants’ case that the alleged wrongs had been a deliberate and premeditated strategy by the proposed co-defendants; (4) took into account irrelevant considerations, such as whether the actions of the directors were motivated by profit, whether their joinder to the proceedings would give rise to a conflict of interest and the fact that the trespass was not continuing; (5) incorrectly concluded that an action against joint tortfeasors represented a new or separate cause of action; (6) disregarded relevant e-mail communications implicating the proposed co-defendants; and (7) erred in concluding that the joinder of the proposed co-defendants would slow down or complicate the proceedings in circumstances where they were already being case managed alongside significantly more complex proceedings (the Defects proceedings).

Held by Binchy J that he could find no error in the decision of the trial judge. In Binchy J’s view, his decision was made within his reasonable discretion. Binchy J held that the new evidence discovered by the respondent left unaffected many of the considerations identified by the High Court judge as weighing against allowing the joinder of the directors, including the potential impact on the continued prosecution of the Defects proceedings, the potential for conflicts of interest to arise and, more generally, the concern that the joinder of the directors was being sought as a forensic tactic in the wider litigation between the parties.

Binchy J held that the appeal should be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT ofMr. Justice Binchydelivered on the 2 ^nd day of June 2021

1 . The plaintiffs/appellants in the second of the above mentioned proceedings (the Campshire Partnership) were co-developers, together with the Dublin Docklands Development Authority (“DDDA”) of a development known as Clarion Quay, Excise Walk, Dublin 1 (“the Development”). Construction of the Development was substantially completed in or around 2002.

2 . The defendant/respondent, a company limited by guarantee, was incorporated in June 2000 for the purposes of taking over the management of the Development. It was envisaged that the respondent would at some time after completion of the Development acquire, by way of fee farm grant, title to the common areas in the Development, as well as the reversionary interest in the leases pursuant to which the Development was sold. The Development comprises 184 residential units, 8 retail units, storage areas, common areas and car parking areas. The interest of DDDA in the Development was at some stage taken over by Dublin City Council (“DCC”). The respondent has to date declined to take a conveyance of the common areas in the Development because of what it claims are serious defects in the construction of the Development. These alleged defects are the subject of separate proceedings issued by the respondent against DCC and the partners in the Campshire Partnership (the “Defects proceedings”). This Court was informed that the respondent is claiming damages of the order of €16.8m from the defendants in the Defects proceedings, being the sum estimated as being required to remedy the alleged defects. The Court was also informed of a third set of proceedings between the respondent and a number of the original subscribers to the respondent (who are mainly members of the Campshire Partnership) in the Circuit Court pursuant to the Multi-Unit Developments Act 2011, relating to the power of the Campshire Partnership to control the respondent through weighted voting rights.

3 . Each of the proceedings with which this judgment is concerned were issued by way of plenary summons dated 12 ^th June 2018, and a statement of claim in each case was delivered on 17 ^th December 2018. The proceedings issued by the North Wall Quay Partnership are concerned with unit 5A in the Development, which the appellants in those proceedings claim to own and occupy pursuant to a 200-year lease. In those proceedings, the appellants claim that the respondent trespassed upon the unit known as unit 5A, changed the locks and caused advertising placards to be displayed at the property advising contact to be made with the respondent. It is also claimed that the respondent unlawfully interfered with the enjoyment of the North Wall Quay Partnership in the property by, inter alia, impeding access through common areas, and by refusing to provide the appellants with essential services associated with that property. The appellants claim damages for trespass and/or nuisance, as well as permanent injunctions restraining the respondent from trespassing upon the property or from holding itself out as being the owner thereof.

4 . The second proceedings referred to in the title hereto are in very similar terms, and relate to numbers 4A Excise Walk, Apartment No. 14 of Block 1 of the Development and 49 carpark spaces. The appellants claim to be beneficial owners of these premises, and assert an entitlement to possession of the same. The appellants also claim that the respondent has trespassed upon the aforementioned properties and claim the same reliefs from the respondent as described in the first set of proceedings.

5 . On 16 ^th October 2018, the plaintiffs/appellants in each case issued the motions with which this judgment is concerned, whereby they sought orders, pursuant either to O.15 r.4 and/or r.13 of the Rules of the Superior Courts, and/or the inherent jurisdiction of the Court, permitting the joinder of the directors of the respondent and the management agent of the respondent as co-defendants to the proceedings. Those parties are identified in the notices of motion as follows: Ian Keogh, Thomas Hayes, Jennie Bray, Liam Francis Miller, Elean Ali, Michael Kinsella, John O'Sullivan, David Ward and Q Agile Limited t/a Core Estate Management (for convenience, I will refer to these parties, including the management agent, as “the directors”). The appellants also sought an order pursuant to O.28 r.1 of the Rules of the Superior Courts granting them liberty in each case to amend the plenary summons in terms of the draft amended plenary summons exhibited to the grounding affidavit, sworn in support of each motion, by Alan McCormack.

6 . Q Agile Limited acts as agent of the respondent in the management of the Development. Of the remaining directors, the addresses of all bar two (as provided by the appellants in their grounding affidavits) are stated to be at apartments in the Development. The two directors whose addresses are not within the Development are nominees of the Voluntary Housing Association known as Clúid. They are Mr. John O'Sullivan and Ms. Jennie Bray. Somewhat unusually, the Court was given to understand that the parties whose joinder is sought by these applications were personally served with the applications and, according to affidavits sworn by Mr. Miller and Mr. O'Sullivan, they were served upon them at their home addresses.

7 . As already mentioned, the applications to join the directors were in each case grounded upon the affidavit of Mr. Alan McCormack. In each affidavit sworn by him, Mr. McCormack provides particulars of the acts of trespass alleged against the respondent as referred to in paras. 3 and 4 above. In paras. 3, 18 and 19 of his affidavit in the first proceedings (which correspond in content to paras. 3, 24 and 25 of his grounding affidavit sworn in the second proceedings), Mr. McCormack sets out the reasons why he is seeking to join the directors as co-defendants as follows:

“3. I believe and am advised that the continuing trespass and...