Phoenix Rock Enterprises t/a Frank Pratt & Sons v Hughes

• Jurisdiction: Ireland
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 29 April 2024
• Neutral Citation: [2024] IEHC 241
• Court: High Court
• Docket Number: [Record No. 2023/1988P]

Between

Phoenix Rock Enterprises T/A Frank Pratt & Sons

Plaintiff

and

George R. Hughes

Defendant

[2024] IEHC 241

[Record No. 2023/1988P]

THE HIGH COURT

JUDGMENT of Mr Justice Liam Kennedy delivered on the 29 ^th day of April 2024

Introduction

1 . The Plaintiff seeks an interlocutory injunction pending the resolution of its claim for specific performance to restrain the Defendant from selling or marketing a property which he allegedly agreed to sell to the Plaintiff for €1.2 million in April 2023. The Defendant denies that there was any such agreement. This application only concerns the application for relief pending trial. It does not conclusively determine the issues. Significant challenges could legitimately be expressed in respect of some of the Plaintiff's evidence in support of the application and the Plaintiff would say the same in respect of aspects of the Defendant's evidence. However, I am only considering the merits to the limited extent required for this application. Their final determination must await the trial and oral testimony (and cross examination). Accordingly, for this application, it is not necessary to summarise all detail raised in the affidavits, especially as to the inconclusive discussions from 2014 to 2022.

The Evidence

Background

2 . Uncontroverted evidence confirms that: (a) the Plaintiff is a substantial company with 45 employees and is engaged in the sand and gravel business; (b) the Defendant is a 76 year old farmer; (c) the land in issue is situated at Clondoogan, Summerhill, County Meath (“the Property”); (d) its registered owner (who died on 26 June 1996) bequeathed the Property to the Defendant and his family (him, his wife and their four children) as tenants in common; (e) an application to update the register remains pending; and (f) part of the Property has been leased to another party, Kilsaran Concrete Products (“Kilsaran”), for many years.

3 . The Plaintiff criticised the time taken to administer the neighbour's estate and effect the transfer of the Property to the beneficiaries. While the delay does seem extraordinary, I have no reason to believe that it is the responsibility of the beneficiaries (including the Defendant) but the issue is not relevant to the present application, in any event.

The Pre-2023 (“Prior Period”) Negotiations

4 . In 2014, the Plaintiff expressed an interest in buying or leasing some or all of the Property in order to obtain access to sand and gravel thereon. Intermittent discussions in subsequent years initially concerned on a possible lease, but, after 2017, the focus moved to a possible sale. However, there is no suggestion that the parties ever reached any agreement during the Prior Period. Significantly, when it appeared that a deal was close, both parties were represented by solicitors and, in accordance with good practice in property and commercial transactions, each side's solicitors repeatedly stipulated that, as the Plaintiff's solicitors put it in a letter dated 4 August 2017 (with similar stipulations appearing in other correspondence such as their letter of 21 September 2017):

“ PLEASE NOTE that we have no authority either to express or implied [sic] to bind our clients to a Contract and that no Contract shall be deemed to be in existence until such time as Contracts have been exchanged between both parties, deposit paid and one part of the Contract duly exchanged. Please further note that this letter is not intended to be a note or memorandum in writing for the purposes of satisfying the Statute of Frauds as amended by section 51 of the Land and Conveyancing Law Reform Act, 2009”.

5 . Although, there were occasional, inconclusive and desultory contacts up to and including 2022, the main discussions seem to have largely concluded (the phrase “ run into the sand” seems apposite) in 2017 when, in response to an enquiry from the Defendant's solicitors on 13 September 2017 (seeking the Plaintiff's response to the Defendant's 28 July 2017 “ Subject to contract/contract denied” proposal), the Plaintiff's solicitors reverted by letter dated 21 September 2017 to confirm that there were no further developments. Although the Plaintiff blames the Defendant for the failure of the past negotiations, I have seen no legitimate basis to criticise either party's approach during the Prior Period.

The events of April 2023

6 . In 2023, the two principals (Ivan Pratt, the Plaintiff's Managing Director (“the Managing Director”) and the Defendant) engaged in further direct discussions about the Property. While there are (not terribly material) disagreements as to the discussions in January/February 2023, it is common ground that there were sporadic contacts. The Plaintiff says that the Defendant committed to negotiate exclusively with the Plaintiff, but the Defendant denies doing so at any time and, to the contrary, maintains that he repeatedly made clear throughout his 2023 engagement with the Plaintiff that he intended to sell by tender. There is no suggestion of any consideration being given in return for the alleged exclusivity or there being any binding commitment in that regard, as would be the case, for example, with a formal option to purchase.

7 . According to the Plaintiff's Managing Director: (a) at a meeting on “24 January 2023” it offered to pay €975,000.00 for the whole property, including €300,000.00 for a house thereon (the parties disagree as to the date of this meeting but nothing turns on it for present purposes, so I will use the earlier date for simplicity's sake); (b) on 25 January 2023, the Defendant sent the Plaintiff a map of the land and confirmed its acreage; and (c) on 21 February 2023, the Defendant telephoned him, seeking €380,000.00 for the house (to which he agreed) and matters were left on the basis that the Defendant would revert in respect of the total price.

8 . Although neither party suggests that the January/February 2023 engagements resulted in an agreement at that point, the Defendant has a different recollection of the discussions. He denies discussing his expectations with the Plaintiff other than at the “24 January 2023” meeting. He says that: (a) he telephoned the Plaintiff's Managing Director on 19 January 2023 to tell him that, over the Christmas period, the family had decided to sell by tender; (b) he never agreed at any stage to deal exclusively with the Plaintiff and it would not have made sense for him to have done so; (c) when the parties met on “24 January 2023”, he reiterated to the Plaintiff's Managing Director (and to the latter's father who also attended) that the family was selling by tender; (d) the Managing Director confirmed his familiarity with such processes but offered €25,000.00 per acre and queried the acreage; (e) the Defendant confirmed that the Property comprised about 27 acres, whereas the Plaintiff thought there was only 24 acres; (f) the Plaintiff offered €320,000.00 for the house in the course of the “24 January 2023” meeting; (g) the Defendant made no response beyond saying that he would put it to the family (but added that he was “ taken aback”, as he had told the Managing Director that the sale would be by tender and the latter had said that he was familiar with the process; (h) the Plaintiff's Managing Director asked about the Defendant's expectations as to price and, on being told, informed the Defendant that “ he would not be drawn into a ‘Dutch Auction’”, at which point the “24 January 2023” meeting ended; (i) the Defendant agreed to send the Plaintiff a map at the latter's request (and duly did so); and (j) on 21 February 2023, he told the Plaintiff's Managing Director that his family had considered the Plaintiff's offer of “24 January 2023” but they still intended to proceed with sale by tender.

9 . There do not appear to have been any significant communications after 21 February 2023 until 11 April 2023. The Plaintiff says that, on that date, the Defendant telephoned, offering to sell the Property for €1.2 million, subject to planning permission, and that the Plaintiff accepted that offer by a registered letter from its solicitor dated 20 April 2023 (“the Registered Letter”). Accordingly, the fundamental issue in the proceedings is whether the Defendant made an unconditional, legally effective, offer in the 11 April telephone call. The Defendant denies doing so. His uncontroverted evidence was that he had instructed the family's solicitor on 4 April 2023 to initiate the sale by tender. He says that, following on from that call to the solicitor, his 11 April 2023 telephone call was intended to confirm that the tender process (which he had previously intimated to the Plaintiff) was actually getting underway. He denies making any offer during the call.

10 . The Managing Director says that as a result of the 11 April 2023 “offer”:

“ we got a planning consultant and passed on other opportunities”.

He does not identify the missed opportunities between 24 April (when the Defendant received the Registered Letter) and 25 April (when the Defendant made clear that the family still intended to sell by tender).

11 . The Registered Letter reflected the Plaintiff's view of the position. It stated:

“ Dear Mr. Hughes,

We are instructed by our above-named client in respect of the purchase by our client of the lands at Clondoogan, Summerhill, County Meath from you.

Our client wishes to accept your recent offer of 11 April 2023 whereby our client will pay €1.2 million to you for the freehold estate in the lands subject to planning permission and good clear marketable title.

Our clients have accordingly arranged a planning consultant to apply for the requisite planning permission and our client has funds in place and is ready, willing and able to complete the said purchase via this office.

We look forward to receiving the relevant contract documentation with 10 days of the date of this letter.”

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