Walsh v Dillon

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date02 March 2018
Neutral Citation[2018] IEHC 180
Docket Number[2017 No. 7720 P.]
CourtHigh Court
Date02 March 2018

[2018] IEHC 180

THE HIGH COURT

Costello J.

[2017 No. 7720 P.]

BETWEEN
EDWARD WALSH
PLAINTIFF
AND
PATRICK DILLON, PAUL McCANN

AND

CORN CIRCLE LTD
DEFENDANTS

Practice & Procedure – O. 19, r. 28 of the Rules of the Superior Courts – Damage and loss – Wrongful act – Breach of contract.

Facts: In the present application, the defendants issued a motion where the defendants had sought an order to dismiss the proceedings filed by the plaintiff against the defendants pursuant to both o. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court on the basis that the claim was non-serious and bound to fail. The plaintiff alleged that the defendants had breached his right to quiet enjoyment of the premises. The plaintiff also contended that the defendants had joined in the wrongful acts of the developer for their own purpose of unlawfully terminating the plaintiff's lease to the premises.

Ms. Justice Costello dismissed the plaintiff's proceedings against the defendants. The Court held that there was no evidence that the defendants were responsible for the acts done by a third party. The Court observed that the present proceedings could not continue on suspicion that the defendants might be involved in the obstruction of peaceful enjoyment of the leased premises by the plaintiff. The Court also noted that the plaintiff's claim, against the wrongful termination of the lease, would be dealt with in the Circuit Court where the proceedings had already been filed. The Court noted that if the plaintiff was entitled to a new lease, the Circuit Could would order and the defendants wound not be permitted to terminate the plaintiff's lease. The Court opined that the power to dismiss a case should be exercised rarely and the possibility of amendment of pleadings should have been explored to save the action. The Court found that the plaintiff was not able to amend his pleadings without any factual basis.

JUDGMENT of Ms. Justice Costello delivered on 2nd day of March, 2018.
1

The defendants issued a motion seeking to dismiss the proceedings pursuant to both O. 19 r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court on the basis that the claim is frivolous and vexatious and bound to fail. This is my judgment in respect of the application.

Background
2

The proceedings relate to a licensed premises located at 103 and 104 Upper Dorset Street, Dublin 1 ('the premises'). The premises is owned by the third named defendant and the plaintiff occupies the ground floor and basement of the premises, where he runs a licensed premises known as the Long Island Bar. The first and second named defendants were appointed as receivers over the premises by Ulster Bank Ireland Ltd pursuant to a deed of appointment dated 28th June, 2013.

3

The adjoining lands are being developed by a company called River Dublin 1 SARL ('River Dublin'). River Dublin has built student accommodation on these lands. The defendants say that River Dublin has no connection with any of the defendants and it is not a party to these proceedings.

4

The plaintiff claims that the works carried out by River Dublin have created a disturbance and have infringed his entitlement to the quiet and peaceful enjoyment of the premises. The defendants maintain that they bear no responsibility for the actions of River Dublin and, accordingly, assert that the plaintiff's claim against them in respect of those actions discloses no reasonable cause of action against the defendants and/or is bound to fail.

5

The proceedings were commenced in light of correspondence received by the plaintiff from River Dublin and from the receivers concerning the use of a yard adjacent to the premises and a door leading from the premises into the yard. River Dublin contended that the yard formed part of its land and that the plaintiff had unlawfully erected the door and was trespassing on its land. River Dublin threatened to sue the receivers in relation to the alleged trespass. In response, the receivers informed the plaintiff by letter dated 17th August, 2017, of their intention to remove the door and repair the boundary wall. The plaintiff then commenced these proceedings and obtained an interim order restraining the defendants from entering on to the premises for the purpose of removing the door. Following service of that order and following action by the receivers' architect, the receivers notified the plaintiff by letter dated 26th September, 2017, that the dispute concerning the use of the door and the yard was a matter between the plaintiff and River Dublin. The receivers confirmed that they intended to take no further action concerning the use of the door or the yard. The receivers subsequently gave an undertaking to that effect. The plaintiff has since acknowledged that he no longer requires any order restraining the defendants from interfering with the door or the yard.

6

The plaintiff occupied the premises under a lease dated 10th January, 2013, for a term of two years and nine months from 1st December, 2012. The term of the lease expired on the 31st August, 2015. There is a dispute between the receivers and the plaintiff concerning the plaintiff's continued occupation of the property. The plaintiff has commenced separate Circuit Court proceedings claiming an entitlement to a new tenancy in respect of the premises. There is no claim in these proceedings relating to the plaintiff's occupation of the premises.

7

Clause 3 of the lease provides:-

'The landlord agrees with the tenant that the tenant paying the rent and performing and observing the agreements on the tenant's part hereinbefore contained may peaceably hold the premises during the term without any disturbance by the landlord or any person lawfully claiming under the trust (sic) for the landlord.'

The effect of this clause is central to the defendants' application.

The plaintiff's case
8

The plaintiff delivered a statement of claim dated 19th October, 2017. Insofar as the claim relates to the issue of the door and the yard, those issues are moot as between the plaintiff and the defendants, having regard to the defendants' undertaking not to interfere in the use of the door or the yard. This was accepted by counsel for the plaintiff at the hearing of the motion.

9

Other than the injunction relating to the door and the yard, the remaining reliefs sought in the plenary summons are:-

'2. Damages against the landlord, or against the receivers as the person responsible for the conduct of the landlord, for causing or permitting me not to peaceably hold the premises without any disturbance by the landlord or any person lawfully claiming under the trust for the landlord.

3. Damages against the landlord, or against the receivers as the persons responsible for the conduct of the landlord, for causing or permitting me not to have quiet use and enjoyment of the premises because of the conduct of the development at the adjacent property.'

10

In the statement of claim, the plaintiff pleads that he acquired a new lease for two years and nine months beginning on the 1st September, 2015, and ending on 30th May, 2018, in accordance with special condition 6 of the lease. The pleading sets out the dispute between the parties as to whether he is entitled to or has acquired a new lease.

11

In paras. 47 to 64, the plaintiff pleads his case against the defendants alleging a breach of para. 3 of the lease dated 10th January, 2013. At paras. 49 and 50, he pleads as follows:-

'49. It was an express term of para. 3 of the lease that the plaintiff "...may peaceably hold the premises during the term..."

50. It is an implied term of para. 3 of the lease that the plaintiff may have the quiet use and enjoyment of the pub consistent with its use.'

The acts which he says interfered with his quiet use and enjoyment of the premises relate to the building works carried out on the neighbouring site by River Dublin. At para. 52, he pleads:-

'In particular, the defendants breached their obligation to uphold the plaintiff's rights in this respect by failing, refusing, and/or neglecting to act appropriately or at all to abate the negligence and nuisance that they have allowed to have been committed (sic) with respect to the noise, vibrations, dust, odours, hours of work, trespass to land, damage to the fabric and contents of the pub caused by the development, and the slander of title committed by the developer.' (Emphasis added)

12

Separately, he alleges that the defendants joined in with the wrongful acts of the developer for their own purpose of unlawfully terminating the plaintiff's lease to the premises. The statement of claim then pleads particulars of the actions of the workers carrying out the development for River Dublin. At paras. 62 to 64, he pleads:-

'62. The plaintiff reserves the right to plead further particulars of the negligence and nuisance, and slander of title committed by the developer and/or the workers, and facilitated by and/or also committed by the defendants.

63. The defendants' breaches of contract have caused the plaintiff to suffer damage, loss, and expense.

Particulars of the plaintiff's damage, loss and expense.

64. The plaintiff's damage, loss and expense caused by the defendants' breaches of contract are continuous and ongoing. Further and detailed particulars will be furnished to the defendant as and when they become available. In that respect, the plaintiff will rely on expert evidence including that of engineers, quantity surveyors, architects, and accountants.'

13

The reliefs sought in the statement of claim differed to those in the plenary summons. In substance, they are:-

'1. General damages against the defendants for causing and/or permitting the plaintiff not to peaceably hold the premises without any disturbance by the landlord or any person lawfully claiming under the trust of...

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