Triatic Ltd v The County Council of the County of Cork

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 31 March 2006
• Neutral Citation: [2006] IEHC 111
• Court: High Court
• Docket Number: [1998 No. 856 P]
• Date: 31 March 2006

[2006] IEHC 111

THE HIGH COURT

[No. 856 P/1998]

TRIATIC LTD v CORK CO COUNCIL

BETWEEN

TRIATIC LIMITED

PLAINTIFF

AND

THE COUNTY COUNCIL OF THE COUNTY OF CORK

DEFENDANT

CORK CO DEVELOPMENT PLAN 1996

ABRAHAMSON v LAW SOCIETY OF IRELAND 1996 2 ILRM 481

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL 2002 1 IR 84

O'TOOLE v HEAVEY 1993 2 IR 544

DEPT FINANCE GUIDELINES ON PUBLIC PROCUREMENT 1994

WALFORD v MILES 1992 2 AC 128

PITT v PHH ASSET MANAGMENT LTD 1993 4 AER 961

MCDERMOTT CONTRACT LAW 2001

ROONEY v BYRNE 1933 IR 609

FLUID POWER TECHNOLOGY CO v SPERRY (IRL) LTD UNREP COSTELLO 22.2.1985 1985/5/1186

LIVINGSTONE v ROSKILLY 1992 3 NZLR 230

PETROMEC INC & ORS v PETROLEO BRASILEIRO SA PETROBRAS & ORS 2005 EWCA CIV 891

DUGGAN v AN TAOISEACH & ORS 1989 ILRM 710

PINE VALLEY DEVELOPMENTS LTD v IRELAND 1992 14 EHRR 319

CONTRACT

Sale of land

Concluded contract - Mere negotiations -Legitimate expectations - Public body -Failure of public body to respect legitimate expectations - Good faith -Glencar Exploration plc v Mayo County Council (No2) [2002] 1 IR 84, Fluid Power Technology Co v Sperry (Ireland) Ltd (Unrep, Costello J,22/2/1985) and Walford v Miles [1992] 2 AC 128 followed - Claim dismissed (1998/856P- Laffoy J - 31/3/2006) [2006] IEHC 111 Triatic Ltd v Cork County Council

Facts: The plaintiff contended inter alia that the defendant's re-advertisement of a site of land to

secure tenders was in breach contract. The plaintiff contended that it had a legitimate expectation

that the defendant would not seek out or advertise for potential purchasers other than the plaintiff

or sell a specific site pending its negotiations with the plaintiff.

Held by Laffoy J., that while a contractual relationship had existed as between the plaintiff and the

defendant whereby the defendant dealt exclusively with the plaintiff, its contractual obligations

terminated upon the expiry of the exclusivity period. Thereafter, the parties were merely in negotiations and no contractual relationship existed between them. The plaintiff had failed to make out any case as to a legitimate expectation.

Reporter: E.F.

1 Judgment of Miss Justice Laffoy delivered on 31st March, 2006.

The factual background

2 The plaintiff was incorporated on 16th February, 1993 under the name Barevan Limited. Two brothers, James O'Brien and William O'Brien, own the entire share capital of the plaintiff and they are its sole directors. The claim being pursued in these proceedings arises out of dealings between the plaintiff and the defendant in relation to the proposed development and acquisition of Fort Camden at Crosshaven, County Cork in the mid-1990s. At the time, William O'Brien was working abroad and it was James O'Brien who primarily dealt with the defendant.

3 Fort Camden, which got its name from the Earl of Camden, the Lord Lieutenant of Ireland between 1795 and 1798, is described in an historical note which was put in evidence as being recognised internationally to be one of the world's finest remaining examples of a classical Coast Artillery Fort. After it was handed over to the Irish government in 1938, it was renamed Fort Meagher in honour of Thomas Francis Meagher. However, the evidence indicates that it continued to be known as Fort Camden locally. It was handed over by the Department of Defence in late 1988 to the defendant on the basis that the defendant would develop it for tourism and amenity purposes. What emerged on the evidence was that "handed over" meant that physical possession of the property was given to the defendant. The ownership remained in the State, a fact of which James O'Brien was unaware until 31st August, 1995.

4 The defendant, being unable to identify a suitable source of funding the development work, decided to seek private sector involvement. In September 1989, the defendant placed advertisements in a number of publications, including the Cork Examiner, announcing the availability of "serviced development sites" for industrial, commercial and tourism development at a number of locations in Cork, including Crosshaven. Fort Camden was not specifically mentioned. The advertisement elicited no response in relation to Crosshaven. Subsequently a French enterprise expressed interest but withdrew. The defendant's involvement with an Irish enterprise was somewhat more fruitful and on 7th April, 1993 the defendant issued a notification of decision to grant planning permission, subject to conditions, to Valcoast Limited to "convert and refurbish part of Fort Meagher (Camden) to a hostel, restaurant and lounge bar and ancillary activities". James O'Brien's involvement with the defendant in relation to Fort Camden commenced shortly after that.

5 In the Cork County Development Plan, 1996, which was published as a draft in 1994, the development of Fort Camden was addressed under the heading "Amenity & Tourism û Cork Harbour". It was stated that the Fort Camden development would help develop Crosshaven's tourist function; there were proposals at a fairly advanced stage to develop a substantial tourist hostel in the fort complex; and the possibility of developing water based activities at the lower levels would be examined in conjunction with its development as a stop-off point in the proposed harbour transport tourism initiative.

The plaintiff's involvement with the defendant

6 By agreement between the parties the documents discovered by the defendant were admitted in evidence without formal proof. The following outline of the involvement of James O'Brien and the plaintiff and their advisers with the defendant in relation to the development of Fort Camden is drawn from those documents and from the plaintiff's witnesses, namely: James O'Brien; William O'Brien; William Brady, an architect in the firm of W.H. Hill & Son, who was retained in connection with the plaintiff's project for Fort Camden in 1994; Peter Roberts, an accountant in the firm of V.F. Nathan & Company, which firm was engaged by the plaintiff in August, 1996 to secure investment for the Fort Camden project and to assist in the preparation of an outline proposal to be submitted to the defendant; Brendan Cunningham, a solicitor in the firm of Barry C. Galvin & Son, which acted for the plaintiff; and Ian O'Leary, a partner in the firm of O'Leary Lehane & Co., Accountants, who became involved in the plaintiff's project for Fort Camden at the beginning of March, 1995.

7 The plaintiff's involvement with the defendant in relation to Fort Camden evolved as follows:

8 • James O'Brien was made aware of the development potential of Fort Camden in July, 1993 by an administrative officer in the planning department of the defendant when he brought in proposals to the defendant in relation to a proposed development at Ringaskiddy, which never came to fruition. Mr. O'Brien's perception was that he was encouraged towards Fort Camden and, in particular, towards the development of the lower part of the fort, the wharfage, quays and such like. He visited the locus with officials of the planning department. At the time, planning permission had issued on foot of the notification of decision referred to earlier for the development of the upper part of the fort and agreement in principle had been reached between the Irish enterprise, which I will refer to as "Valcoast", and the defendant, under which Valcoast was to raise £500,000 under a business expansion scheme to fund the development, carry out the development and secure Bord Fáilte approval for the project and the defendant was to grant a 35-year lease to Valcoast. Although James O'Brien kept in contact with the planning department throughout the remainder of 1993, he made little or no progress in relation to getting involved in a project at Fort Camden.

9 • In late March, 1994, James O'Brien and his solicitor, Barry Galvin, had a meeting with the personnel behind Valcoast at which a suggestion that Mr. O'Brien would develop the lower part of Fort Camden, the waterfront, was well received. This was followed by a letter dated 21st April, 1994 from Valcoast to Mr. Galvin, which proposed discussions to examine the possibilities of a joint venture with James O'Brien "to acquire and develop [Fort Camden] outright". This letter disclosed that Valcoast was considering another location for a hostel project in Crosshaven because it perceived its efforts to make progress with the defendant were being frustrated by bureaucracy. Through his solicitors, James O'Brien responded that he would be interested in a joint venture.

10 • On 3rd June, 1994, the O'Briens, on behalf of the plaintiff, met with Brendan Kelleher, the Chief Planning Officer of the defendant, to discuss where they were in relation to Camden Fort. They were accompanied by their architect, Mr. Brady, and their solicitor, Mr. Cunningham. They learned that the defendant, which at one time was considering a heritage development within the Fort, was no longer interested in that project. A one-page document was presented to Mr. Kelleher, which illustrated the type of development which the O'Briens considered might be accommodated at Camden Fort involving: a heritage trail, hotel, holiday cottages, self-catering apartments, craft shops and a picnic area at the upper level; and, in addition to fishing, boat hire, sailing, diving and water skiing at the lower level, a heritage trail, bar and restaurant, fishermen's cottages, and a fishing shop. Mr. Kelleher suggested that the plaintiff and Valcoast might discuss a joint development of the entire property and bring back a joint proposal to the defendant. However, it was emphasised by Mr. Kelleher that a heritage centre would have to be incorporated in the development. On the same day, an official of the defendant wrote to Valcoast seeking confirmation...