(R) McD v (v) McD

CourtHigh Court
JudgeMr. Justice Barron
Judgment Date29 January 1993
Neutral Citation1993 WJSC-HC 907
Docket NumberNo. 11,206p/1991
Date29 January 1993

1993 WJSC-HC 907


No. 11,206p/1991
MCD (R) v. MCD (V)


R. McD.
V. McD.






Proof - Absence - Action - Settlement - Terms - Dispute - Question of fact - (1991/11206 P - Barron J. - 29/1/93)1993 ILRM 717

|M. v. M.|



Negotiations - Contract - Formation - Proof - Failure - Matrimonial proceedings - Whether party liable to pay costs of proceedings - Common intention to insert disputed term not established - (1991/11206 P - Barron J. - 29/1/93) [1993] ILRM 717

|M. v. M.|


Judgment of Mr. Justice Barron delivered the 29th day of January 1993.


The parties to this action are husband and wife. Difficulties arose in the course of their marriage and various proceedings were brought in the Circuit Court in relation to maintenance, custody and the distribution of their property. These proceedings were listed for hearing in the Circuit Court on the 17th of October 1989. On the 16th of October 1989 the Parties met to try to settle the various matters in issue between them. Negotiations took place in the Clarence Hotel Dublin between 8.30 p.m. on the 16th of October and 2.30 a.m. on the 17th October. The wife, together with her Senior Counsel, her Solicitor, her Accountant and her brother stayed in the lobby of the hotel. The husband together with his Senior Counsel, Solicitor and Accountant stayed in a room on the first floor of the hotel. Negotiations which took place between the respective parties were conducted in the main by their respective Senior Counsel. However, they were on occasion accompanied by the respective Solicitors and sometimes by their Accountants. Ultimately, Heads of Agreement were written out at 2.30 a.m. on the morning of the 17th of October. The dispute which now arises as to whether or not the agreement which was entered into at that time included a provision for the payment by the husband of his wife's costs of the separation proceedings.


The agreement which was made and signed is as follows:-

"Heads of Agreement

In consideration of £216,000.00 the wife agrees to do all things necessary to the sale of her husbands sole benefit of 80 Park Avenue; to release to the husband her interest in 6 Leeson Court, Upper Leeson Street and Flat 4 Elm Court Ballsbridge; and to wave all other claims of a capital nature against the husband.


Husband to pay maintanance for wife and children at a rate of £18,000.00 net of tax payable monthly until a date in July next; and to pay the children's educational expenses; the issues of maintanence and educational expenses to be relisted for review by the Court in July if not agreed.


Husband to insure his life for £250,000.00 for benefit of wife and children.


Sale not to occur before April; husband to vacate within one week of 17th October 1989.


Contents to be divided equally - arbitration if not agreed. Husband to indemnify wife against any claim on her for tax if any such arising to-date.


Custody to wife; access to husband to be agreed, liberty to apply on this matter.


Husband to have sole carriage of and control of sale".


That document was signed by both of the parties in the presence of their respective Solicitors.


The following morning Mr. Millar, the wife's Solicitor, rang Mr. Judge, the husband's Solicitor, for the purpose of telling him that he had realised that the Heads of Agreement which had been signed contained no provision as to costs and that in fact it had been agreed that the husband would pay his wife's costs. He says that Mr. Judge agreed that this was so. The husband himself when giving evidence said that his Solicitor had rung him on that morning and had informed him that a problem had arisen but that if he was agreeable to pay costs he thought that matters could be resolved. On the following day Mr. Millar prepared a separation agreement as was the intent of the parties and sent it to Mr. Judge. Within the next couple of days the wife felt that she had been forced into the agreement under duress and indicated that she was no longer prepared to observe it. As a result the proceedings which had been adjourned for one week from the 17th of October to 24th October were further adjourned and Mr. Millar was allowed to come off record for the wife.


Apparently the wife was prepared subsequently to carry out the agreement and in November she gave fresh instructions to Mr. Millar to act on her behalf. Following these instructions he submitted a second draft of the separation agreement. The wife thereafter apparently was still dissatisfied with the terms of the agreement and sought to re-open the question of assets of the husband and to obtain a share of such assets. This resulted in proceedings been brought by the husband to enforce the settlement and such proceedings were issued on the 26th of February 1990. They sought specific performance and damages. A defence was entered on behalf of the wife which sought an Order for rectification of the document entitled "Heads of Agreement" to include the following words at the end of the first paragraph of the said document: "The waiver by the wife of all claims of a capital nature against the husband shall not apply in respect of any property or assets held by him outside Ireland".


Subsequently the wife withdrew her defence to the claim and on the 4th of July an Order was made by the Court in the following terms: "The Court doth make the following Order:


1. The Equity Civil Bill be amended and in particular the Plaintiff's claim therein to include such further or other Orders or relief as to the Honourable Court shall seem just.


2. Specific performance of the agreement dated the 17th day of October 1989 by the Defendant herein.


3. The Defendant herein to vacate the family home situate at 80 Park Avenue Sandymont in the City of Dublin on or before the 31st day of August 1990.


4. No Order as to damages"


Although the document handed up to me does not deal with costs, it was agreed that the wife would pay her husband's costs of those proceedings. Meanwhile other proceedings were apparently taking place because on the 30th of July 1990 the Circuit Court made an Order in relation to maintenance.


The Statement of Claim in the present case pleads, inter alia, as follows:


2 "4. As part of the said agreement of the 17th of October 1989 it was expressly agreed between the plaintiff, her servants or agents and the Defendant, his servants or agents, that the Defendant would pay to the Plaintiff the cost of all matrimonial proceedings which were in being between the Plaintiff and the Defendant as of the 17th October 1989.


5. The Heads of Agreement...

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1 cases
  • Ulster Bank DAC v McDonagh
    • Ireland
    • High Court
    • 6 April 2020
    ...of agreement’ is not conclusive as to whether or not the parties actually reached a concluded agreement. For example in R McD v McD [1993] I.L.R.M. 717 at 721, Barron J. stated that: ‘It seems to me that the heads of agreement were in fact just that. They were agreement as to the core of th......

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