Appeal allowed partially regarding solicitor's sharp practice finding due to lack of cross-examination opportunity.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 252

Record Number: 2016/205

Peart J.

Hogan J.

Whelan J.

BETWEEN:

KNOCKACUMMER WIND FARM LIMITED

PLAINTIFF/RESPONDENT

- AND -

DANIEL CREMINS AND SHEILA CREMINS

DEFENDANTS/APPELLANTS

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 30TH DAY OF JULY 2018

1. I gratefully adopt the description of the general background to these proceedings which is contained in the judgment which is

about to be delivered by Mr Justice Hogan. I agree with his conclusions as to the proper construction of the 2012 settlement

agreement, and the order which he proposes in relation to rectification. I am also in agreement with the conclusions reached by Ms.

Justice Whelan in relation to the exercise of the purchase option by Mr Cremin alone in the light of s. 82(1)(b) of the Land and

Conveyancing Act, 2009, and her conclusion that time is not of the essence in relation to the exercise of the lease back option by

the company.

2. My separate judgment relates to a particular finding made by the trial judge. That issue does not arise directly from any issue

specifically raised in the pleadings, but is, nevertheless, a significant matter which arose from the evidence given at trial by the

solicitor acting for the defendants in relation to the transaction generally, and it has been raised as a ground of appeal by the

appellants in their notice of appeal. The solicitor in question was not a party to the proceedings – merely a witness called by the

defendants.

3. At paragraph 3(b) of their notice of appeal the appellants state that the trial judge erred in law and/or on mixed questions of law

and of fact by finding that the defendant’s solicitor, Aoife O’Connell, knew that the absence of a start date for the exercise of the

buy back option in the Option Agreement was a mistake, and failed to alert her opposite number in the transaction, Mr Roberts, to

that fact. They submit that this conclusion was unsupported by the evidence given by Ms. O’Connell, and furthermore that she was

not given a fair opportunity to refute the suggestion that she knew that it was a mistake, since it was never put to her during cross-

examination.

4. As I say, that conclusion was not central to how the Option Agreement should be correctly construed, but it is a finding from

which the reasonable inference can be drawn that at a time prior to the execution of the Option Agreement by her clients Ms.

O’Connell failed to alert Mr Alan Roberts, the solicitor acting for Knockacummer, to the fact that she and her clients considered that,

as drafted by him, the agreement permitted the buy back option to be exercised at any time prior to 2042, and that she knew that

this was not his understanding and intention given the conversation that she had had with him on the 30th May 2012. Without

putting a tooth in it, it is a finding that infers some sharp practice on the part of Ms. O’Connell. The appellants have argued that such

a finding against her would need to be supported by clear evidence, and reached only after she was given a fair opportunity to

address and respond to what was alleged, should she choose to do so. The appellants have argued that there was no such clear

evidence, and also that it did not seem that this particular matter would be the subject of a finding by the trial judge, particularly

having regard to a particular intervention by the trial judge during the course of Ms. O’Connell’s direct evidence. I will come to that in

due course.

5. As recorded by Mr Justice Hogan in his judgment herein, the Purchase Option and Lease option arrangements arose from the Terms

of Agreement executed by these parties on the 22nd May 2012 by which earlier proceedings (Record Number:2013/6468P) had been

compromised. Clause 1 thereof was in the following terms:

“The defendant will within seven days hereof execute a Contract for Sale of the Lands (details of which Lands are more

particularly set out on the attached schedule) with the closing date of 1 month from today’s date (or such longer period

as the parties’ solicitors shall agree). The sale of the lands to the plaintiff’s shall be subject to: (a) a buyback option after

30 years in favour of the defendants for €1.00, and (b) (should the defendants exercise such buyback option) an option

in favour of SWS for a 25 year lease of the Lands on the terms of existing Leases subject to statutory amendment,

subject to a market rent being fixed by a valuer nominated by the President, at the time, of the I.A.V.I.. The defendants

shall execute all documents necessary to give effect to this provision.” [Emphasis provided]

6. Mr Roberts undertook the task of drafting the Option Agreement in respect of the buy-back option and lease back option referred

to in the agreed terms of settlement. There was some dispute in the High Court as to whether he volunteered to do so, or whether he

was asked by Ms. O’Connell to do so. Nothing turns on the answer to that issue on which both Mr Roberts and Ms. O’Connell

disagreed.

7. The buy-back option was, according to the settlement agreement, to be exercised after 30 years i.e. not before May 2042. As can

be seen from the judgment of Mr Justice Hogan, the buy-back option as drafted provided that in consideration of €1, SWS granted to

the Cremins the option to purchase “on the Purchase Option Date which was defined as being “the earlier of (i) 22nd June 2042 or (ii)

in circumstances where SWS serves an Acceleration Notice, the date which is 150 days after the date of service of the Acceleration

Notice”. Since no Acceleration Notice was served, the relevant date is 22nd June 2042. The Option Agreement went on to provide

that the option would lapse if not exercised by that date (I am overlooking a question of whether the date 23rd April 2042 stated in

clause 2.3 is an error. It does not affect the particular issue that I am dealing with).

8. The relevant controversy for my purposes arises from the fact that Mr Roberts understood, and the trial judge so found, that the

purchase option was drafted by him in a way that was intended to enable the Cremins to exercise the buy-back option only after 30

years, consistent with what was stated in the settlement agreement.

9. However, after that draft was furnished by Mr Roberts to Ms. O’Connell, and before the Cremins had executed same, Mr Cremins

had sought advice from Ms. O’Connell as to whether by the terms of the draft option agreement he was precluded from exercising the

option prior to 2042, or whether he could exercise the option at any time prior to the date on which the option would lapse, albeit

that the buy-back would not itself take effect until 2042. One of his concerns was that the option might, through some misadventure

or omission, be overlooked and not be exercised in 30 years’ time, and the land would be lost for all time as a result. He was also

concerned that he may wish to sell on the benefit of the option to some third party. Ms. O’Connell arranged a consultation with

counsel which Mr Cremins attended on the 31st May 2012. It appears that counsel advised that there was nothing in the wording of

the option agreement as drafted that precluded him from exercising the option at any time prior to 2042, even though the lands would

remain in the ownership of SWS until 2042.

10. However, a telephone conversation took place between Ms. O’Connell and Mr Roberts on the previous day, the 30th May 2012.

The trial judge deals with that conversation at some length having heard the evidence of both Mr Roberts and Ms. O’Connell in

relation to it. At para. 58 of his judgment the trial judge stated his conclusion that as of that date both Mr Roberts and Ms. O’Connell

were aware that as drafted the Option Agreement was intended to grant an option that was not exercisable prior to 2040. The trial

judge was also satisfied that Ms. O’Connell had clearly conveyed her understanding in this regard to Mr Roberts.

11. It is a fact that Ms. O’Connell did not apprise Mr Roberts of the different view on her side of the transaction following the

consultation with counsel on the following day, namely, that the option agreement as drafted did not in fact preclude the exercise of

the option on some date earlier than the 30 years expressed in the terms of settlement despite the fact that there was contact

between the two solicitors prior to the execution of the option agreement on or about the 11th June 2012. It is her failure to have so

apprised Mr Roberts that drew some criticism of her by the trial judge in his judgment, which I will refer to in more detail in due

course. Ms. O’Connell is not a party to this litigation. Neither was she acting for the Cremins in the proceedings. She was a witness

called by the appellants to give factual evidence about the settlement negotiations which led to the settlement agreement, and in

relation to events thereafter in which she was involved. On her behalf, however, counsel for the appellants has submitted that she

was given no opportunity to address or respond to this question that arose during the hearing of her not having got back to Mr

Roberts about this matter before either his or her clients executed the agreement, and during the course of the evidence which she

gave in the High Court. It is submitted on her behalf that the trial judge ought not to have made an adverse finding against her in this

regard without clear evidence to support it, and a fair opportunity being provided for her to respond.

12. As later events have shown, Mr Cremins in fact, through his solicitor, served a notice purporting to exercise the purchase option

and provided the consideration of €1 on the 14th March 2013. Under the terms of the executed option agreement, that service

automatically triggered a fourteen day period thereafter by which SWS were required to exercise its lease back option should they

wish to take a lease of the lands from the Cremins in 2042. Upon receipt of the purchase option notice SWS did in fact purport to

exercise that lease back option within the prescribed period. However, as is explained in detail by the trial judge in his judgment, and

in the judgment being delivered herein by Mr Justice Hogan, the Cremins deny that the notice was properly served either within that

period or at all. It is that denial that has given rise to the present proceedings. One should note also that when purporting to serve

its notice exercising the lease back option, the solicitors acting for SWS did not do so on any ‘without prejudice’ basis, or on a basis

that in any way suggested that SWS took issue with the fact that Mr Cremins had exercised the purchase option earlier than was

permitted by the option agreement.

13. To appreciate why Ms. O’Connell considers that she did not have a fair opportunity to address fully the question of her not having

got back to Mr Roberts following her consultation with counsel and her clients on the 31st May 2012, and submits that the trial judge

ought not to have expressed his criticisms of her in the way he did, it is helpful to refer to some evidence given by Mr Roberts and by

Ms. O’Connell.

14. In his evidence on Day 1 of the hearing Mr Roberts referred to a telephone conversation that he had with Ms. O’Connell on 30th

May 2012, and in respect of which he created a memorandum or note for his file. He stated that during that call Ms. O’Connell had

asked if SWS would agree to a clause whereby SWS would essentially undertake to issue some sort of notice to remind the Cremins in

30 years time of the existence of the option to purchase. That request was refused. But Mr Roberts made the point that there was

no mention by Ms. O’Connell in that conversation that the view on her side of the transaction was that the option could be exercised

at any time prior to 2042, even if the lands would not actually revert until 2042. He went on to state that it would not have made

sense for her on the one hand to be asking that SWS would agree to remind the Cremins of the existence of the option in 2042, yet

at the same time be of the view that they need not wait until 2042 to exercise the option. He was certain that Ms. O’Connell had not

referred to that view to him during that telephone call or at any time. In fact he went on to say that the first time he became aware

that they held this altered view was when he saw the discovery documentation provided by the Cremins which included memos of

consultations with counsel and the Cremins.

15. Ms. O’Connell gave her evidence on Day 3 of the hearing. She stated that when the draft settlement agreement was handed to

her by Mr Roberts on the evening of the 22nd February 2012 she discussed its contents with her counsel and her clients before it was

signed. She stated that there was no discussion with Mr Roberts as to the commencement date for the exercise of the option. It was

understood that “it would be effective for 30 years”. She stated that when she received the draft Option Agreement from Mr Roberts

it contained a clause stating that the option would lapse if it was not exercised prior to 2042. In her direct evidence she was asked

by counsel for the Cremins: “Now, insofar as you are concerned, does the Option Agreement have a commencement date for the

Option Agreement?” She responded: “It couldn’t commence before the closing was completed. It could only commence once the

conveyance had come to an end, and the Cremins had released their interest to SWS. After that, I understood this to mean and still

understand this to mean any time up to 90 days before the end in 2042”.

16. Ms. O’Connell was asked also about the fact that Mr Cremins had sought advice prior to executing the Option Agreement. She

stated that he had sought advice from counsel as to whether he could exercise the option sooner than 30 years. She also recalled

contacting Mr Roberts to inquire whether SWS would agree to a clause obliging them to remind the Cremins of the existence of the

option in 30 years time, and that the response was in the negative. She went on to explain the thinking behind Mr Cremins’ wish to be

able to exercise the option earlier. He was, she said, concerned lest something should happen in the future whereby through some

mistake or omission the option was not exercised before it lapsed, and the land would be lost to them for all time. His view was that

the sooner it was exercised the better, since he could then order his affairs with some certainty, even though he knew and was

advised that regardless of the date on which the purchase option was exercised the lands would not actually revert to his ownership

before 2042. She went on to state that she did not recall any discussion with Mr Roberts as to a commencement date for the

exercise of the option, and that she certainly had made no agreement in that regard.

17. Counsel for SWS objected to it being stated by Ms. O’Connell that she had made no agreement as to the commencement date

and that there had been no such discussion with Mr Roberts. That objection was on the basis that it had not been put to Mr Roberts

during his evidence that his understanding of what Ms. O’Connell had spoken about on the 30th May 2012 (i.e. the request for a

reminder in 2042 of the existence of the purchase option) was incorrect. Counsel for the Cremins made the point that Mr Roberts

could be recalled so that the matter could be put specifically, even though counsel considered that it was covered in the matters put

to Mr Roberts already, and also that there was no dispute between the parties in any event that the exercise of the option could not

become effective before 2042. There were further exchanges but the trial judge ruled that counsel for the Cremins could pursue that

line of questioning.

18. There followed a further objection by counsel for SWS when counsel for the Cremins again attempted to direct Ms. O’Connell to

the conversation with Mr Roberts on the 30th May 2012. The objection was on the basis that in her prepared witness statement

(which was prepared after she would have seen Mr Roberts’s witness statement) she had not disputed his stated recollection of the

telephone conversation, and that she ought not now be permitted through counsel’s questioning to do so, particularly where no other

version of the conversation had been put to Mr Roberts when he was cross-examined on his witness statement.

19. Immediately after that objection is made by counsel for SWS the transcript records the following:

Judge: She doesn’t mention it at all.

Counsel (SWS): No, not the letter or the telephone call and Mr Roberts deals with it in detail. So I am objecting, judge,

and it is entirely unfair having regard to the procedures of the Commercial Court that my friend would now start asking

questions of this witness, having never put a positive proposition to Mr Roberts that the witness would disagree in any

way with what he had said.

Counsel (Cremins): In fairness, judge, I don’t think there is any dispute between this witness and Mr Roberts.

Judge: Then do we need to go into it any further?

Counsel (Cremins): We don’t really need to go into it further. So, Ms. O’Connell, if we could just move on …..” [Emphasis

provided]

20. Some further evidence was given by Ms. O’Connell before the end of her direct examination to which it is unnecessary to refer,

and she was then cross-examined.

21. During her cross-examination counsel for SWS suggested to Ms. O’Connell that the only reason Mr Cremins would have sought

advice as to whether the purchase option could be exercised sooner than 2042 was that he knew that the Settlement Agreement did

not permit him to do so, and he asked her whether she did not find it “curious” that he had not asked whether it could be exercised

in, say, 5 years, but had asked by reference to the 30 year period referred to in the agreement. It will be recalled that the

Settlement Agreement provided that there would be “a buy back option after 30 years” [emphasis provided]. Ms. O’Connell replied

that she had not considered it to be “curious”. She confirmed that advice had been given to Mr Cremins in that regard. As referred to

earlier that advice was to the effect that there was nothing in the agreement that precluded the exercise of the option earlier than

2042. She was then questioned by reference to certain timelines for steps to be taken in accordance with clause 6.2 of the

agreement, if and when SWS exercised its lease back option within the 14 day period provided for. The suggestion was that these

timelines could not be met unless the purchase option was exercised only in 30 years’ time since clause 6.2 speaks of rent being

calculated at a future date, and changes in legislation and in landlord and tenant practice that may have occurred at the date of the

exercise of the option and so forth. When Ms. O’Connell was asked how the timelines in clause 6.1 and the requirements in clause 6.2

could be met if the option was exercised sooner than 2042, she replied: “I don’t have an answer for that. That is how the document

was presented and these were the conditions that were inserted by SWS”. She was asked whether she accepted that the steps

specified in clause 6.1 to be taken once the lease option was exercised by SWS envisaged the exercise of the purchase option in

2042, to which she answered “Yes”. She was asked also whether the advice given to Mr Cremins as to whether he could exercise the

purchase option earlier than 2042 was qualified in any way in the light of those timelines and other conditions. Ms. O’Connell replied:

“No, I don’t recall that”.

22. Ms. O’Connell stated in her evidence that it was always clear to her from her conversations with Mr Cremins that he intended to

exercise the purchase option, and that it was after he had signed the agreement that she learned in a conversation with him that he

would do so as soon as possible rather than wait until 2042. She was asked if she had ever thought of getting back to Mr Roberts to

tell him this, to which she answered “No”, and added:

“At that stage … we were trying to get contracts signed. I was dealing with the bank. There were issues in relation to

title. There was a lot going on in relation to the conveyance. The conveyance was quite some time before closing and it

never crossed my mind to go back to Mr Roberts about that.”

23. Counsel for SWS referred Ms. O’Connell to the final paragraph of Mr Roberts’s letter to her dated 30th March 2012 written

following his conversation with her that day of which he had made a memo for his file. That final paragraph stated:

“We have extended the period during which your client may exercise their Purchase Option. However, our client is not

willing to accept any obligation to notify your client of the availability of the Option after 30 years. As discussed, the

entire benefit of the Purchase Option accrues to your client and, in those circumstances, our client is not willing to

assume any obligations with respect to the exercise of the Purchase Option.”

24. It was put to Ms. O’Connell that this paragraph clearly meant that Mr Roberts was stating that the exercise of the option was to

take place in 30 years’ time. Ms. O’Connell responded by saying that it was not how she read the paragraph. She was asked if she

had had any discussion with her client about this letter. She said that she did not, but that she had had a discussion about the

documents that were enclosed with the letter. She was also asked whether she had raised with Mr Cremins the question of whether

she should get back to Mr Roberts and clarify the issue of when the Option could be exercised in the light of his letter. She had not

done so. She was asked whether she now accepted that it was something that she should have done. S he did not accept that she

should have done so.

25. This cross-examination concluded shortly after those questions. When her cross-examination concluded, the trial judge asked her

a number of questions. I will set out that short series of questions verbatim from the transcript:

“Judge: Ms. O’Connell, presumably before you prepared your witness statement you had a chance to read Mr Roberts’

witness statement.

Answer: Actually I didn’t. I received Mr Roberts’ statement last week.

Judge: At any rate you had a chance to read it and did you read also his memorandum of his conversation with you on

the 30th May 2012?

Answer: Yes, I did.

Judge: And I take it you regard that as an accurate record of that conversation? It is annexed to his witness statement,

which is at Tab 5.

Answer: Yes, I think so.

Judge: So why were you requesting a mechanism of notification?

Answer: Because I had seen the paragraph in relation to the option lapsing and in the event that for any reason it hadn’t

been exercised. An abundance of caution.

Judge: Thank you.”

26. I believe that what I have set out from the evidence are the passages which are relevant to the issue taken with the trial judge’s

criticism of Ms. O’Connell arising from her interaction with Mr Roberts, on the basis that she was not afforded a fair opportunity to

address the particular matter that gave rise to his criticism.

The trial judge’s conclusions in this regard

27. The trial judge concluded that as of the 30th May 2012 Ms. O’Connell was fully aware not only that as drafted the Option

Agreement was intended to grant a purchase option which was not exercisable before 2040, but also that this was the belief and

assumption of both Mr Roberts and of Ms. O’Connell He was also satisfied that she conveyed this understanding to Mr Roberts during

the conversation on the 30th May 2012. In that regard he stated that in so far as there was any conflict of evidence in this regard,

he preferred the evidence given by Mr Roberts [para. 58].

28. The trial judge then referred to the consultation with counsel on the 31st May 2012, counsel’s advice that the wording of the

Option Agreement did not preclude Mr Cummins from exercising the purchase option earlier than 2042, and the fact that thereafter Mr

Cremins had reason to believe that he was entitled to exercise the purchase option once the Option Agreement was executed [para.

59].

29. The trial judge then stated that it was probably following that consultation that Ms. O’Connell’s own understanding of the period

during which the option could be exercised had changed. He noted that she had at no time between that date and the execution of

the Option Agreement communicated to Mr Roberts that the legal advice given to Mr Cremins, and indeed her own understanding, was

that the option could be exercised at any time up to 2042, notwithstanding the contrary understanding conveyed in her telephone

conversation with Mr Roberts on the 30th May 2012.

30. At para. 65 et seq. the trial judge stated:

“65. From 31st May 2012 Ms O’Connell, who continued to act on behalf of the defendants in relation to completion of the

Option Agreement and the transfer of the lands, had knowledge of the mistaken understanding of the plaintiff’s solicitors

as to the meaning and effect of the Option Agreement as drafted. Regardless of her own opinion, and regardless of what

views or advice she may have expressed to the defendants, it was incumbent on her to bring this difference in

interpretation and understanding to the attention of Mr Roberts/the plaintiff’s solicitors. Whether both or either of the

defendants were aware of the mistaken understanding does not matter, because O’Connell & Clarke were acting on their

behalf, and they must therefore be fixed with Ms O’Connell’s knowledge.

66. On the basis of these findings the first three requirements of the doctrine as summarised by Buckley L.J. are satisfied;

firstly the plaintiff’s solicitors erroneously believed that the Option Agreement contained terms that did not permit the

exercise by the defendants of the Purchase Option before 2042; secondly the defendants through their solicitors became

aware of that mistaken understanding; thirdly the defendants through their solicitors omitted to draw the mistaken

understanding to the notice of the plaintiff’s solicitors prior to execution.

67. With regards to the fourth element mentioned by Buckley L.J. namely the requirement that the mistake “must be one

calculated to benefit B” Eveleigh L.J. in Thomas Bates & Son v. Wyndhams Ltd differed. He stated (at p.1090):-

‘I do not think that it is necessary to show that the mistake would benefit the party who is aware of it. It is enough

that the inaccuracy of the instrument as drafted would be detrimental to the other party, and this may not always

mean that it is beneficial to the one who knows of the mistake’.

68. In Chitty on Contracts (30th edition) at para. 5.188 the authors resolve this difference as follows:

“It is submitted that either should suffice. In practice, if the claimant’s mistake was known to the defendant, or the

defendant deliberately induced the mistake in the way described earlier, and the terms of the written document are

less favourable to the claimant than those the defendant knew that the claimant actually intended, it will be

inequitable for the defendant to insist on the terms stated in the document and the grounds for rectification will be

satisfied’.

I accept as correct the position as stated by Eveleigh L.J. and in my judgment it is sufficient if in the circumstances of a

unilateral mistake the claimant/plaintiff suffers a detriment in circumstances where it would be inequitable for the

defendants to rely on the mistake of which their solicitors had knowledge. This also accords better with the view

expressed by Costello J. in O’Neill v. Ryan quoted previously. Nonetheless I do find in the present case elements of sharp

practice, the term used by Buckley L.J. [Emphasis provided]

69. The failure of Ms O’Connell to revert to Mr Roberts caused or permitted SWS to execute the finalised Option

Agreement without material alteration. This was to the benefit of the defendants because it facilitated early exercise of

the Purchase Option at any time up to 23rd March 2042. Mr Cremins, as Ms O’Connell well knew, was keen to exercise the

Purchase Option as soon as possible after execution, rather than having to wait until 2042. It was therefore to the

defendant’s advantage. It was also to the detriment of the plaintiff, in that its officers, and in particular Joanne Ross,

who was then Head of Legal Regulation of Bord Gais Energy (and whose evidence in this regard I accept), believed that

the defendants option was not exercisable until 2042, and that accordingly the plaintiff did not have to take a decision on

exercising the Lease Option until 2042 when the planning and business plan required to make an informed decision would

have been developed.

70. Also while I am satisfied that Mr Cremins always wanted to buy back the lands, I do not accept as credible his

evidence that at the time of the 2012 Settlement Agreement he said or believed that he could exercise the option

“immediately”. In my view in opposing the plaintiff’s claims he is seeking to take advantage of a perceived error in drafting

that would not have occurred if it had been drawn to the attention of SWS’s solicitors by his solicitors, as should have

happened. These circumstances make it inequitable for the defendants to rely on or take advantage of the Option

Agreement as executed if it has the meaning that they now assert. Moreover the fact that the plaintiff’s solicitors were

responsible for the perceived drafting error cannot be relied on by the defendants in circumstances where A&L Goodbody

were obliging the defendants’ solicitors in drafting the Option Agreement – and the reliance placed on this by the

defendant’s solicitor and counsel in their evidence was ill judged”.

31. The above findings were reached in order to support the granting of an order for the rectification of the Option Agreement, as an

alternative remedy to the trial judge’s conclusion at para. 49 of his judgment where he held that clause 2.4 should be construed to

read:

“SWS hereby grants to Cremins the option to purchase SWS’ interest in the Option Property in 2042 for the Purchase

Price on the Purchase Option Date subject to compliance with the following conditions…”.

In that regard, at para. 71 of his judgment, the trial judge stated:

“I am therefore satisfied that the Option Agreement should, in the alternative, be rectified by the insertion of the words

“in 2042” in clause 2.4, line 1after the words “the Option Property”.

32. There is little doubt from the trial judge’s remarks that he took a very unfavourable view of the fact that Ms. O’Connell had, in his

view, improperly failed to advise Mr Roberts after the consultation with counsel and Mr Cremins on the 31st May 2012 of the view

then held by her, and advice given to Mr Cremins, that contrary to their mutual understanding as discussed on the 30th May 2012 the

agreement as drafted did not preclude the exercise of the purchase option by Mr Cremins on any date prior to 2042 following its

execution. The trial judge has indicated his view that her conduct in this regard had “elements of sharp practice” and that she should

have informed Mr Roberts of the change in her view.

33. Given the trial judge’s conclusion at para. 49 of his judgment that the Option Agreement should be construed to read in a way

that precluded the exercising of the purchase option prior to 2042, it was not strictly necessary for him to proceed to address the

alternative claim made by the plaintiff for rectification of the Option Agreement, during which he made his remarks in relation to Ms.

O’Connell. However, it is often helpful not only to the litigants, but also to an appellate court if alternative claims are the subject of a

conclusion at first instance, so that if by any chance the primary conclusions are reversed on appeal, the appellate court is in a

position to deal also with the alternative claims, rather than have to remit those alternative claims to the High Court for a

determination. I also do not think that the conclusion which he reached in relation to Ms. O’Connell was something that he needed to

reach and express in order to found his conclusion that as an alternative to the proper construction conclusion at para. 49 of his

judgment, the plaintiffs were entitled to rectification. He fully, and if I may say so respectfully, correctly set forth the legal principles

applicable to rectification. Having done so, and having considered the relevant evidence as he saw it, he stated at para. 63:

“If upon its true construction the Option Agreement did allow the defendants to exercise the Purchase Option at any time

up to 90 days prior to the end of the 30 year period, then I find that at the date of execution of the Option Agreement

there was a clear divergence of understanding between SWS/it’s solicitors on the one hand, and the defendants/their

solicitors on the other hand, and on that construction SWS/its solicitors were mistaken as to its effect. The rectification

sought is therefore on the basis of SWS’s unilateral mistake as to the meaning of the Option Agreement from the time it

was first drafted up to and including the date of its execution.”

34. That conclusion was reached on the basis of the facts as found by the trial judge up to that point in his judgment. In my view

there was ample evidence which he was entitled to accept for his findings of fact. The necessary elements for rectification of the

agreement were in place, and it was not strictly necessary to proceed further as he did, including by making adverse findings in

relation to Ms. O’Connell. It was sufficient for the trial judge to state, as indeed he did at para. 68 of his judgment, that “it is

sufficient if in the circumstances of a unilateral mistake the claimant/plaintiff suffers a detriment in circumstances where it would be

inequitable for the defendants to rely on the mistake of which their solicitors had knowledge”. There was certainly evidence available

to the trial judge which he was entitled to accept that after the 31st May 2012 Ms. O’Connell was aware that the view held on her

side of the transaction as to the date on which the purchase option could be exercised differed from Mr Roberts’ view. That is a

finding of fact which he was entitled to reach, and which in my view did not depend upon him reaching a conclusion that Ms.

O’Connell had engaged in any way that could be described as “sharp practice”. In a sense it was an unnecessary finding for him to

make.

35. Nevertheless, the real issue arising is not whether it was unnecessary for him to reach in order to properly ground his conclusion

as to rectification, or whether he was correct in his conclusion, but rather whether he was entitled to reach and express that

conclusion where as a matter of fair procedures Ms. O’Connell was not provided with a proper opportunity (a) to be aware that the

standard of her professional behaviour would be an issue upon which the trial judge would reach a conclusion, and (b) have the

matter put to her directly during her evidence so that she had an adequate opportunity to respond. It bears repeating that Ms.

O’Connell was not a party to these proceedings. It was not an action against her for negligence or any other claim in which the

standard of her professional conduct was directly engaged.

36. A person’s reputation in society generally is important. That is not simply my own personal view but it is also reflected in the

provisions of Article 40.3.2 of the Constitution whereby the State pledges itself to protect that right to a good name “as best it may

from unjust attack,” A person’s professional reputation is of equal if not greater importance since it is the means by which such a

person earns a livelihood. Once lost it is difficult to retrieve. There are many ways by which a professional’s reputation can be

adversely affected both in the eyes of his/her peers in the profession and in the eyes of the public at large – professional misconduct

in any of its many guises can be one such way. At a lower level, and perhaps particularly relevant to a member of the solicitors’

professional where there is such an emphasis on integrity, honesty and straight dealing with one’s colleagues, an allegation that a

solicitor has engaged in sharp practice with a colleague is a serious allegation, and one which if not quickly refuted and appropriately

addressed can gain traction to the point where that a solicitor’s reputation is tarnished to the point where other colleagues may be

slow to place complete trust in that colleague in the future. An accusation of sharp practice is serious. It should not be made lightly.

In the present case, there has been not just an allegation of sharp practice, but a judicial finding that such occurred in the way

described above, but in respect of a witness and not a party to the proceedings as such.

37. It is important that before any finding of unprofessional behaviour or sharp practice is made in respect of a witness, that the

witness is aware that this is an issue upon which some finding may be made. It is important as a matter of fair procedures that the

witness has an opportunity to have relevant matters put to him/her so that there is an opportunity to rebut the suggestions being

made or otherwise rebut same. This is particularly important in the case of a witness, because unlike the parties to the proceedings

the witness does not deliver pleadings. Consequently, the witness will not be able to plead to or otherwise respond to any allegations

that may be made against him/her in the parties’ pleadings. The importance of fair procedures in this regard was referred to by

Charleton J. in his judgment in McDonagh v. Sunday Newspapers Limited [2017] IESC 46, [2017] 2 I.L.R.M. 217, 236-237 where at

paras. 40-41 he stated the following:

“40. In McNamee v Revenue Commissioners [2016] IESC 33, the judgment of Laffoy J approves the decision of the House

of Lords in Browne v. Dunn (1893) 6 R 67 which is encapsulated in the following statement of Lord Halsbury at pages 76-

77:

‘To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which

they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity

often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to

disbelieve what they have said, although not one question has been directed either to their credit or to the

accuracy of the facts they have deposed to.’

41. The extent to which fairness requires cross-examination is essentially dependant on how a trial runs. Fairness,

however, is what the law requires both in relation to procedures that are dedicated towards achieving a correct

conclusion in a trial and in relation to the right of a witness to be given a real opportunity to comment on a verdict the

implication of which may only be interpreted as adverse. Here there was such a conclusion. If the Garda evidence as to

statements had been accepted, then certainly the jury’s verdict that it had not been proven that the plaintiff was a loan

shark would be impossible. Hence, it is clear that the sworn Garda testimony on this issue was rejected. As to the drug

dealing allegation, the jury’s verdict did not carry that implication as, unlike the loan sharking issue, the plaintiff was not

recorded in Garda interviews as at all agreeing that he was drug pushing. But, equally, it must be pointed out the paucity

of any challenge to the Garda testimony by counsel for the plaintiff. There is a minimum standard here that must be

observed. Certainly, the plaintiff’s evidence began the case and, equally, he made the case that one Garda had somehow

mistreated him. What were his instructions? Surely the particular passages disputed should have been highlighted in

cross-examination and surely the reasons for the dispute, misunderstanding by the interviewing officers or perhaps a

malicious fraud should have been put on his behalf. It only needs a few sentences putting core instructions as a matter of

a few questions. Were that done, the procedures would have been fair since, then, there would have been an aspect of

what was wrong with the interviews according to the plaintiff and what the Garda response was. Laffoy J also approved

another passage from Browne v. Dunn, that of Lord Herschell LC at page 71. There, he stated a rule that if you intend to

impeach a witness, you are bound, whilst that testimony is live, to give that witness an opportunity of making any

explanation which is open. This was characterised as not only a rule of professional practice in the conduct of the case,

but as essential to fair dealing:

‘… but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more

fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of

truth, I mean upon a point which is not otherwise perfectly clear that he has had full notice beforehand that there

is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that

there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is

impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to

him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he

has not had any opportunity to give an explanation by reason of there having been no suggestion whatever in the

course of the case that his story is not accepted’.”

38. I have already set forth certain passages from the transcript of the evidence given by Ms. O’Connell. I refer to what is set forth

at paras. 15- 20 above where it is evident that during her direct examination by counsel for the defendant by whom she had been

called counsel started to deal with the communication between Ms. O’Connell and Mr Roberts on the 30th May 2012. Counsel for the

plaintiff objected to a line of questioning on the basis that it had not been put to Mr Roberts that there was any disagreement as to

the date for the exercise of the option. Once the trial judge intervened by asking the somewhat rhetorical question “Then do we need

to go into it any further?” that line of question ended. In my view it was not thereafter foreseeable that an issue that the trial judge

would turn his mind to was going to the propriety of Ms. O’Connell not getting back to Mr Roberts to explain that there was a change

in their opinion as to the meaning of the Option Agreement. There is no difficulty at all arising from the trial judge’s conclusion that

after the 31st May 2012 the parties were not ad idem, and therefore that Mr Roberts preceded on the basis of a unilateral mistake

which justified rectification. But I fear that his further and, in my view unnecessary conclusion, effectively that she engaged in sharp

practice by not getting back to Mr Roberts after the 31st May 2012, is something that ought to have been directly put to her as a

matter of fair procedures, before the trial judge could reach a properly evidentially based conclusion. I appreciate that it may have

been necessary to recall Mr Roberts so that he also could have matters put to him, but there was no particular difficulty in doing that

should it have been deemed necessary. But if Ms. O’Connell had continued to be examined in the way counsel had sought, she would

have had these matters put to her, and she would have had the opportunity to respond, and to be cross-examined in relation to

them.

39. With the benefit of hindsight in the light of the conclusion expressed by the trial judge, one might now discern from the questions

asked of Ms. O’Connell by the trial judge at the very end of her cross-examination that he had taken a rather dim view of the fact

that she had not thought it necessary to get back to Mr Roberts after the 31st May 2012. I have referred to those few questions

above. But at the time, I do not believe that the witness was alerted to the fact that her own professional behaviour might be the

subject of an adverse finding in the Court’s judgment, and I do not think that she had a reasonable opportunity to address it.

40. It is only in this respect that I would allow the appeal – in other words only to the extent of (a) overturning the conclusion at the

end of para. 68 of his judgment where he stated: “Nonetheless I do find in the present case elements of sharp practice, the term

used by Buckley L.J.”, (b) his statement in para. 65 that “it was incumbent upon her to bring the difference in interpretation and

understanding to the attention of Mr Roberts/the plaintiff’s solicitors, and (c) in para. 70 the conclusion expressed in the phrase “as

should have happened”. Without these matters, being put clearly to Ms. O’Connell, given their potential to impact upon her

professional reputation, I do not consider that the trial judge was correct to express those particular conclusions.

41. I have written this judgment only in order to deal with the trial judge’s conclusion in relation to Ms. O’Connell. In relation to other

issues addressed on the appeal, I am in agreement with the conclusions of Mr Justice Hogan in his judgment in relation to the proper

construction of the 2012 settlement agreement, and as to the rectification that he proposes in order to provide certainty for the

future.

42. I would dismiss the appeal.