Phoenix Rock Enterprises [Trading as Frank Pratt & Sons] v Hughes

• Jurisdiction: Ireland
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 26 March 2025
• Neutral Citation: [2025] IEHC 126
• Court: High Court
• Docket Number: [Record No. 2023/1988P]

Between

Phoenix Rock Enterprises T/A Frank Pratt & Sons

Plaintiff

and

George R. Hughes

Defendant

[2025] IEHC 126

[Record No. 2023/1988P]

THE HIGH COURT

JUDGMENT ofMr Justice Liam Kennedydelivered on 26 March 2025

Background

1 The plaintiff, a multi-million euro sand and gravel company with 45 employees (“the Plaintiff”), seeks specific performance of an alleged oral agreement by the defendant, a 76 year old farmer (“the Defendant”), to sell a property to the Plaintiff and to hold the Defendant to his alleged earlier, related, commitment to negotiate exclusively with the Plaintiff in relation to its disposal. The Defendant denies that any such agreement was concluded and also denies the alleged commitment. This judgment concerns his application to strike out the proceedings.

Conclusion

2 My previous judgment and that of the Court of Appeal on the Plaintiff's interlocutory injunction application identified challenges facing the claim. The Plaintiff has availed of the opportunity to advance amendments but such changes fail to cure its infirmities. For the reasons detailed below, I have concluded that I should strike out the proceedings pursuant to Order 19 rule 28, I do not need to invoke the Court's inherent jurisdiction. In short:

Accordingly, I am satisfied that the (amended) pleadings disclose no reasonable cause of action and that the (amended) claim amounts to an abuse of the process of the Court, is bound to fail, has no reasonable chance of succeeding, and is frivolous and/ or vexatious.

• a. The pleadings do not establish an arguable basis that the parties concluded an agreement for the sale of the land. There was no agreement as to the period for securing planning permission (or the arrangements for the payment of a deposit).

• b. Even if there had been such an agreement, it was not evidenced in writing as required by s.51 of the Land and Conveyancing Law Act 2009 (“the 2009 Act”).

• c. There is no basis to invoke the doctrine of part performance or to seek specific performance because

  • i. There is no concluded agreement.

  • ii. Even if there had been a concluded agreement, the Plaintiff

    • 1. is not entitled to rely on alleged detriment predating the alleged contract;

    • 2. it has failed to advance sufficient particulars or credible evidence to support its mere assertion that a planning consultant was retained and “some expense” incurred following its acceptance of the “offer”;

    • 3. Even if the Plaintiff had incurred an “economic cost” retaining a planning consultant during the brief contractual window, this would still not be a “substantial act of part performance” sufficient to justify depriving the Plaintiff of his entitlements under the s.51 because: (a) the Defendant did not induce the Plaintiff to retain the consultant or to incur such expenditure (and the controversial claims as to the Defendant allegedly inducing other detriment at other periods and in the context of other proposals are irrelevant in this regard), (b) the expenditure during the brief contractual window, if any, must have been insignificant or de minimis in the context of the proposed transaction, (c) it would not be unconscionable to permit the Defendant to avail of the statutory protection afforded to him by modern legislation which dates back to the Statute of Frauds.

• d. Even if the factual narrative as to exclusivity and forbearance was as alleged by the Plaintiff, it would not give rise to a binding legal commitment. No such commitment it would be open-ended — it would be terminable on reasonable notice which would, in my view be 1 to 3 months' notice, more likely the former, if, indeed, any notice at all was required, which I doubt.

• e. In any event, claims cannot be advanced against non-parties, on the basis of agency, estoppel or otherwise. Nor can reliefs be claimed against them. The Plaintiff's allegations as to representations concerning the Defendant's ownership of the property or as to his willingness and ability to sell to the Plaintiff cannot constitute a proprietary claim against the Property. Such allegations could only be pursued by way of a damages claim against the Defendant, rendering unstatable most reliefs sought in the Indorsement of Claim.

• f. Even if the Defendant misrepresented the position on various issues as alleged on the basis of the amended pleadings and the Plaintiff's affidavits, the Plaintiff has not suffered any legally cognisable loss as a result of any such misrepresentation.

The interlocutory injunction application

3 On 29 April 2024 I rejected the Plaintiff's application for interlocutory orders preventing the property's sale pending trial. Costello P delivered the Court of Appeal's judgment, agreeing that the Plaintiff had not established an arguable case. The Plaintiff then sought to amend and the Defendant sought the dismissal of the Claim in whole or part or its remission to the Circuit or District Court. The Defendant no longer opposes the proposed amendments so this judgment focuses on the dismissal motion and largely proceeds on foot of the (draft) amended pleadings and the affidavits exchanged in the proceedings in respect of both motions and on earlier motions, including the applications for injunctive relief, admission to the Commercial List and discovery. (Rule 28 (3) specifically empowers the Court to have regard to affidavits exchanged in respect of the particular application but I consider that the Court may also have regard to evidence previously tendered).

4 The Notice of Motion seeks:

“1. An Order pursuant to Order 19 rule 28(1) … and/ or the inherent jurisdiction of the Court striking out the Plaintiff's claim (and all or any parts thereof) on the grounds that it:

i. discloses no reasonable cause of action, and/ or

ii. amounts to an abuse of the process of the Court, and/ or

iii. is bound to fail, and/ or

iv. has no reasonable chance of succeeding, and/ or

v. is frivolous and/ or vexatious.

2. An order pursuant to Order 19 rule 28(2) … dismissing the Plaintiff's action herein or such parts thereof as have been struck out as aforesaid.

3. If necessary and appropriate, an Order pursuant to the provisions, inter alia, of Order 49; rule 7 … remitting the above proceedings (or such portion thereof that has not otherwise been dismissed or struck out …) toeither (a) the Circuit Court

…; or (b) District Court”.

5 Although it also relies on other grounds, including the breach of an alleged exclusivity commitment, the Plaintiff's primary claim depends on its contention that the Defendant offered to sell the property in a 11 April 2023 telephone call and the Plaintiff accepted that offer (by letter from its solicitor dated 20 April 2023, received 25 April 2023). It seeks to amend its Claim to assert that there is a note or memorandum which meets the requirements of s.51 of the 2009 Act, but in any event claims to be entitled to invoke the doctrine of part performance to enforce the “agreement”.

The Contract

6 Throughout these proceedings, the Plaintiff has confused and conflated events and communications from different periods and it also confuses and conflates points relied upon in respect of the alleged exclusivity commitment with those which are pertinent to its contractual claim. However, in terms of the assertion that a contract was actually concluded, the Plaintiff has consistently alleged that, in the course of the 11 April 2023 telephone call, the defendant offered to sell the property for €1.2 million subject to planning permission and that the Plaintiff accepted the offer in a letter from its solicitors to the Defendant which was dated 20 April 2023 and was received by the Defendant on 24 April 2023. The Plaintiff has consistently described the “agreement” in these terms in its various pleadings, replies to notices for particulars and in affidavits sworn on its behalf throughout the proceedings 1. For example, paras. 5, 18 and 19 of the Original Statement of Claim set out the Plaintiff's case on this key issue, alleging:

“5.…an agreement entered into between the Plaintiff and the Defendant for the Plaintiff to purchase the property for €1,200,000.00, which followed an offer from the Defendant to the Plaintiff on 11th April 2023 to purchase the property for €1.2million subject to planning permission. The offer was accepted on 20th April 2023 and resiled on by the Defendant on 25th April 2023 who stated to Ivan Pratt that he was instead putting the property to tender…

18. … by telephone call on or about 11th April 2023 the Defendant called Ivan Pratt and offered to sell the property for €1,200,000.00 subject to planning permission.

19. By letter dated 20 April 2023 the solicitors for the Plaintiff accepted the Defendant's aforementioned offer of 11 April 2023. The letter states:-

‘Our clients 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 clients has funds in place and is ready, willing and able to complete the said purchase via this office…’”

The Plaintiff's managing director's 4 May 2023 affidavit grounding the injunction application was in the same terms 2.

7 There are additional nuances concerning the alleged contract. Firstly, I consider (and reject) below an argument advanced in the amended Statement of Claim that, although concluded in 2023, the “agreement” was evidenced in writing by inconclusive intersolicitor correspondence six years earlier. Secondly, the Plaintiff relies on negotiations over the years to argue that it would be unconscionable for the Defendant to resile either from the alleged April 2023 agreement or from the alleged exclusivity commitment. In particular, it relies...