Vavasour -v- O'Reilly & Ors,  IEHC 16 (2005)
|Docket Number:||1993 859P|
|Party Name:||Vavasour, O'Reilly & Ors|
Neutral Citation No.  IEHC 16THE HIGH COURT[1993 No. 859 P]BETWEENWILLIAM PEARSE VAVASOURPLAINTIFFAND
PATRICK MICHAEL O'REILLY AND WINDSOR MOTORS LIMITED
WINDSOR RENT A CAR LIMITEDDEFENDANTSJUDGMENT of Mr. Justice Clarke delivered 28th January, 2005.
The plaintiff in these proceedings makes a number of complaints about the circumstances in which he ceased to be involved in aspects of the car hire rental business being conducted under the auspices of the Windsor Motor Group. The plaintiff has represented himself at all recent times in the course of these proceedings.
The proceedings commenced in 1993 in the immediate aftermath of the termination of the plaintiff's contract of employment with the third named defendants ("Windsor Rent a Car"). An immediate application for interim relief was granted by Lardner J. on 5th February, 1993 which restrained the then defendants (that is the first and second named defendants) from carrying on the business of a franchise arrangement, from terminating the employment of a Ms. Collins in relation to that franchise business or from procuring any alteration in the telephone or facsimile numbers of that business. The matter subsequently came before Costello J. (as he then was who delivered judgment in respect of an interlocutory application on 3rd March, 1993. There is extant an agreed counsel's note of the ex tempore judgment delivered by the court. From same it is clear that Costello J. was satisfied that the plaintiff had established a prima facie case to the effect that a contract existed between the plaintiff and the first named defendant whose terms included a provision that the profits of the franchise arrangements (to which I will refer in more detail later on in the course of this judgment) were, after deduction of all appropriate expenses, to be divided equally. Costello J. was also satisfied that a prima facie case had been established to the effect that there was an implied term in the aforementioned arrangements to the effect that the plaintiff's employment with Windsor Rent a Car would be retained during the currency of the franchise agreement. The court was not satisfied that there had been established a prima facie case to the effect that there was a breach of that agreement in various other respects which were then argued including in respect of the termination of Ms. Collins employment and the moving of the phone and fax lines. No order, in respect of these latter matters was, therefore, was made. In those circumstances Costello J. was not persuaded that he could make an order requiring the defendants to maintain the plaintiff in employment pending the trial of the action but by virtue of being satisfied that there was a prima facie case in respect of an entitlement on the part of the plaintiff to a 50% share in the net profits of the franchise the court ordered the first named defendant to account to the plaintiff's solicitors on a monthly basis "in respect of the turnover of the business of Holiday Autos Ireland Limited both in respect of the incoming and outgoing business the accounts to commence on 1st day of May, 1993 until the trial of the action or until further order".
For reasons some of which will be touched upon in the course of this judgment it has taken a very long time indeed for this action to come on for trial. It should be noted that the matter came on for hearing on 22nd June, 2004 before Kelly J. As I understand it by that stage the plaintiff was conducting the case himself. In the course of his presentation of the case to Kelly J. it became clear that some of the matters which he wished to pursue as part of his claim to damages were not pleaded. In that context Kelly J. considered an application made by the plaintiff for leave to amend his pleadings. I have had the opportunity of reading a transcript of the ex tempore ruling made by Kelly J. on 22nd June as a result of which such leave was granted.
It is therefore on foot of the amended pleadings authorised by that order of Kelly J. that this matter finally came on for hearing before me.
The plaintiff left school in 1970 with what he described as a "good" leaving certificate. During the 1970s he had a successful and rising career. However he suffered a reversal in the early 1980s when, as a result of a change of direction in a major firm by whom he had been headhunted he was effectively left with no job to do. Thereafter the 1980s proved to be a most difficult period for him. He candidly outlined in evidence that he would have been, in effect, unemployed for three to four years of that decade and had also been involved in what ultimately turned out to be a failed hotel business venture. He also very candidly informed the court that he began, during that period, to suffer from serious alcohol problems. Ultimately those problems led him to seek, successfully, the assistance of a charitable agency experienced in dealing with such problems. Having come through those difficulties the plaintiff assisted in fundraising for that agency and it was in that context that he first met the first named defendant ("Mr. O'Reilly"). For those reasons it was common case that Mr. O'Reilly was well aware of the plaintiff's background at all material times.
Mr. O'Reilly had been the proprietor of a successful motor group for a significant period of time prior to the early 1990s. The primary business of the group was concerned with the sale of motor cars through, I am informed, a series of subsidiary companies which operated separate outlets. These companies were under the umbrella of the second named defendant. A further limb to the business was Windsor Rent a Car which carried on a relatively traditional car hire business.
It is again common case that Mr. O'Reilly offered the plaintiff a job whose principal initial focus was intended to be to bring marketing skills (an area in which the plaintiff had an established expertise) to bear on the car hire business. It is common case that his contract of employment was with Windsor Rent a Car.
The plaintiff and Mr. O'Reilly had first met during 1990 and the plaintiff joined Windsor Rent a Car in March 1991.
THE HOLIDAY AUTOS CONNECTION
Holiday Autos is a large company based in the United Kingdom. No representative from the company gave evidence in the proceedings before me. However it would appear that its principal business is concerned with facilitating arrangements for the international hire of motor cars. To that end it operates through agents or franchisees in many countries. So far as material to these proceedings there are two elements of that business which require further consideration.
The first ("inward business") consists of the appointment of an agent within a country who will supply cars to the order of international clients of the Holiday Autos network. The second ("outward business") may involve the appointment of an agent or franchisee who will take bookings from within a country for the rent of cars in a second country. The arrangements would be challenged through Holiday Autos who would arrange to have a car in the appropriate country made available by its agent in that jurisdiction.
While there were minor discrepancies of an immaterial nature in the respective accounts given by the plaintiff and Mr. O'Reilly as to the precise circumstances in which a business relationship between Holiday Autos and either or both of them emerged it seems clear that in general terms the initial idea came about as a result of Mr. O'Reilly noticing a Holiday Autos outlet while on other business in London while much of the detailed work in setting up the arrangements between Holiday Autos and the Windsor Group and/or the plaintiff was in fact conducted by the plaintiff himself.
Initially the business consisted of inward business as a result of which Windsor Rent a Car as was appointed as the entity which would supply cars in Ireland for Holiday Autos international customers. There is no dispute but that those arrangements were with Windsor Rent a Car rather than with the plaintiff and/or Mr. O'Reilly. As this business was in the course of being established it would appear that the plaintiff broached with Holiday Autos the possibility that the outward business might also be secured. The plaintiff gave a clear account of being told by the representatives of Holiday Autos that as a matter of policy they did not consider it appropriate to allow the same entity to act as an agent or franchisee for both outward and inward business within the same jurisdiction. I did not understand Mr. O'Reilly to differ significantly from that evidence. There is no doubt but that a franchise agreement came to be executed which provides for the granting of the outward business of Holiday Autos within Ireland. That agreement is at the core of the dispute between the parties. The first significant issue is as to whether the benefit of that franchise arrangement is conferred upon the plaintiff and Mr. O'Reilly personally (as the plaintiff contends) or upon both of them in their capacity as agents of the second named defendant or other companies within the Windsor Motors Group (as the defendants contend).
THE FRANCHISE AGREEMENT
The relevant agreement is relatively straightforward in its terms. It is dated 14th November, 1991 and appears, on the evidence, to have been drafted by Messrs. Rochman Landau who are English solicitors and who acted on behalf of the franchisor which is stated to be H A International Limited of 12 Bruton Street, Mayfair, London W1, England. Insofar as the issue of the identity of the franchisee is concerned the following further provisions appear to me to be material:-
(1) The franchisee is defined as "PATRICK MICHAEL O'REILLY and WILLIAM PEARSE VAVASOUR of Windsor Car Rentals Limited, South Circular Road, Dublin 8".
(2) The agreement bears the signature of both the plaintiff and Mr. O'Reilly who are stated as having signed "for...
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