Court awards damages for mental distress and Trustee Act costs where plaintiff successfully removed a lease burden.

THE HIGH COURT

[2025] IEHC 455

Record No. 2013/11229P

Between

JANICE O’BRIEN

Plaintiff

and

CATHERINE O’DONNELL and BRIAN KIRWAN & JOHN PLUNKETT PRACTISING UNDER THE STYLE AND TITLE OF PLUNKETT KIRWAN SOLICITORS

Defendants

Judgment of Mr. Justice Conor Dignam delivered on the 11th day of August 2025

INTRODUCTION

1. This judgment concerns what was described by Senior Counsel for one of the defendants as a “long and sorry tale.” That tale has its beginnings in 2007. The events had consequences for the plaintiff. The defendants admitted liability shortly before the trial but disputed, on a number of bases, the plaintiff’s entitlement to the damages claimed or to any damages. The issue to be determined, therefore, is whether the plaintiff is entitled in law to an award of damages in respect of those consequences and, if so, under what headings, and in what amounts.

2. In circumstances where the defendants have admitted liability it is not necessary to set out the background in the same level of detail as might otherwise have been required.

3. The “sorry tale” has its immediate roots in a property arrangement or agreement that was reached between the plaintiff (“Ms. O’Brien”) and a Mr. Patrick O’Donnell on the 13th August 2007 in relation to two properties, 28 Clontarf Road and No. 3 Glenbrian Hall, and two subsequent contracts for the sale and purchase respectively of those properties.

4. The 13th August 2007 agreement provided:

“Contract of Sale/Purchase

It is hereby irrevocably agreed between Patrick O’Donnell of 14 Glenbrian Hall, 98 Howth Road, Dublin 3, on the one part and Janice O’Brien of 28 Clontarf Rd., Dublin 3, on the second part that a contract exists between both parties on the following basis;

1. Patrick O’Donnell, Robert Morgan and Martin Walsh will purchase from Janice O’Brien her property at 28 Clontarf Road, Clontarf, Dublin 3, unencumbered, for the sum of €785,000 (Seven hundred and Eighty Five thousand Euro).

2. In tandem Janice O’Brien will purchase No. 3 Glenbrian Hall, 98 Howth Road, Clontarf, Dublin 3, unencumbered, from Ms. Catherine O’Donnell for the sum of €450,000 (Four hundred and Fifty thousand Euro).

3. Both deals to conclude no later than the 30th September, 2007.

4. In consideration of clause 3 above Patrick O’Donnell will pay a deposit of €125,000 (One hundred and Twenty Five thousand Euros) immediately to Janice O’Brien).”

5. Patrick O’Donnell is the husband of the Catherine O’Donnell referred to in paragraph number 2 of the agreement. She is the first-named defendant. Robert Morgan is Mr. O’Donnell’s son. He subsequently withdrew from the transactions. Martin Walsh is a business partner of Patrick O’Donnell. They had developed Glenbrian Hall, an apartment building, together.

6. It appears to be the case that Ms. O’Brien had viewed No. 3 Glenbrian Hall prior to signing this agreement.

7. The background to and nature of these transactions was considered by Birmingham J in a judgment in Patrick O’Donnell & Martin Walsh v Janice O’Brien [2011] IEHC 21 (“the injunction proceedings”). I return to this judgment. Essentially the arrangement was that Ms. O’Brien would sell 28 Clontarf Road for €785,000 which would be made up of €335,000 cash of which a deposit of €125,000 was to be (and was) paid to her immediately and the acquisition by her of No. 3 Glenbrian Hall at a value of €450,000. The significance of the €125,000 is that in family law proceedings the Circuit Court had ordered that 28 Clontarf Road be sold unless Ms. O’Brien bought out her former partner’s interest. It is worth noting at this point that at various stages in the history Ms. O’Brien has stated that these amounts were incorrect. For example, she says that she told Mr. O’Donnell when he presented her with the agreement of the 13th August 2007 that the amounts in the memorandum were wrong and that he told her they could be sorted out at the contracts stage; she also says that she told Mr. Plunkett of the second-named defendant, who she engaged to act for her, that the amounts in the subsequent formal contracts were wrong and that he told her that it was too late because she had already agreed the prices. This is disputed by Mr. Plunkett who says that the instructions he was given were that the sale price of 28 Clontarf Road was €785,000 and the purchase price of No. 3 Glenbrian Hall was €450,000 and that no other figure was mentioned to him. These are the amounts pleaded by Ms. O’Brien in her Statement of Claim of the 28th February 2014 and her Amended Statement of Claim of the 20th July 2020. This dispute assumed a degree of significance at the hearing because it could be perceived that it was being alleged that Mr. Plunkett was involved in a revenue fraud by understating the actual amounts but I do not believe it is of direct significance to what I am required to decide where it is not part of Ms. O’Brien’s pleaded claim and she does not claim that that she received different amounts.

8. Subsequent to signing the memorandum of the 13th August 2007, Ms. O’Brien engaged Mr. John Plunkett of the second-named defendants to act for her in respect of the proposed transactions. Ms. O’Brien accepts that Mr. Plunkett advised her to have the property surveyed and that she did not do so.

9. Mr. Plunkett prepared the contract for the sale by Ms. O’Brien of 28 Clontarf Road and sent it to the solicitor for the purchasers (by this stage, Mr. O’Donnell and Mr. Martin Walsh). The same solicitor acted for Mr. O’Donnell and Mr. Walsh in the purchase of 28 Clontarf Road and for Ms. Catherine O’Donnell in the sale of No. 3 Glenbrian Hall. That solicitor returned the executed contract for 28 Clontarf Road on the 3 rd October 2007. On the same day, he indicated that contracts and copy title documents in relation to No. 3 Glenbrian Hall would be forwarded to Mr. Plunkett. It seems that copies of the title documents were sent at some point thereafter. They included a copy of an undated lease of the apartment to Ms. O’Donnell which, whilst executed, had not been stamped or registered. It is not known when this was executed but I will refer to it as “the 2000 lease”. The solicitor told Mr. Plunkett that the original lease to Ms. O’Donnell had been sent for stamping and registration.

10. Mr. Plunkett sent the purchasers’ solicitor the contract for 28 Clontarf Road executed by Ms. O’Brien as vendor on the 17 th October 2007. He highlighted that he had handwritten Special Condition 10 which read “This contract is subject to the completion of the purchase of 3 Glenbrian Hall taking place on the same date as the closing of the sale herein.” He inserted a handwritten special condition in the contract for No. 3 Glenbrian Hall which read “The contract is subject to the purchaser being satisfied with the title to be furnished within 7 days from the date hereof.”

11. The sale by Ms. O’Brien of 28 Clontarf Road and the purchase by her of No. 3 Glenbrian Hall closed on the 24th October 2007. The sale to Ms. O’Brien was effected by a Deed of Assignment. The stamped and registered 2000 lease to Ms. O’Donnell was still not to hand on completion and closing and, according to Mr. Plunkett, he received a verbal undertaking from Ms. O’Donnell’s solicitor that he would forward the title deeds in due course. Mr. Plunkett was satisfied to close on that basis. Ms. O’Brien moved into No. 3 Glenbrian Hall shortly after that. I should pause at this stage to note that Ms. O’Brien was not aware that the purchase had been closed on the basis of an undertaking, and that she has taken the position that neither transaction properly closed because she did not receive the title deeds to No. 3 Glenbrian Hall which was part of the consideration for the sale of No. 28 Clontarf Road. This view becomes of significance later in this account of the background. Furthermore, Ms. O’Brien does not really accept that Mr. Plunkett received such an undertaking.

12. Two difficulties arose shortly after the closing, one in respect of each of the properties.

13. It transpired that there was in fact a charge registered against 28 Clontarf Road which Ms. O’Brien had not informed Mr. Plunkett of when he made the normal conveyancing inquiries of her when he was first engaged. This was in respect of legal fees for solicitors who had acted for Ms. O’Brien in family law proceedings. Apparently, the existence of this mortgage had emerged when Mr. O’Donnell and Mr. Walsh had attempted to sell 28 Clontarf Road very shortly after purchasing it. It seems that this difficulty was subsequently remedied. The second-named defendant places considerable emphasis on this in their written submissions, describing matters as being “greatly complicated” by it. It was stated elsewhere in the written submissions that “It is manifest that in these proceedings the issue of any ability on the part of the Second Named Defendant to obtain, or if needs be, rectify title fell into immediate difficulties on the basis of the purchasers of the Clontarf Premises ascertaining that the Plaintiff had failed to divulge the existence of a charge over the Clontarf Premises, which charge was partly in place to cover an undertaking regarding costs outstanding to the Plaintiff’s solicitors in these proceedings”

14. The second difficulty is at the core of Ms. O’Brien’s claim. Ms. O’Donnell’s solicitor did not provide the title deeds to No. 3 Glenbrian Hall despite efforts by Mr. Plunkett. Following an intervention by the Law Society, unrelated to the present case, that solicitor ceased to practice, and his files were taken over by another firm of solicitors who were nominated by the Law Society. Mr. Plunkett, it seems, continued to seek the title deeds for No. 3 Glenbrian Hall from these new solicitors.

15. As noted above, Ms. O’Brien was not aware that her purchase of No. 3 Glenbrian Hall had closed on the basis of an undertaking or an agreement that the deeds would be furnished later. She was also not aware that title had not been provided. While there is a slight degree of uncertainty about precisely when she was told of the issue, she and Mr. Plunkett are largely agreed that it was at a meeting in or about April 2008. They are also agreed that there was a further meeting on the 16 th July 2008. There is a dispute about the precise contents of the conversations at these meetings and I return to this. There is, however, no dispute between the parties that Ms. O’Brien was unhappy with the news about not having title. Ms. O’Brien’s account of how she came to be told this is that in the months shortly after she moved into the apartment it began showing signs of serious dampness. She says that she engaged a builder who advised her that there was rising damp coming up through the entire apartment block and substantial renovations had to be made to her apartment as there was rising damp in the apartment. According to Ms. O’Brien, the builder estimated that it would cost €50,000 to fix the problem. Ms. O’Brien says that she decided that she had to move and that she was going to take out a mortgage to cover the cost of remedying the problem and would then sell the apartment. According to her witness statement, it was in this context that she learned that Mr. Plunkett had not obtained the title deeds because she met with him in April 2008 and told him about the problems, about her plan to borrow money to remedy the problems and to sell the apartment. Mr. Plunkett disputes much of this but there is no dispute that Mr. Plunkett told her that in fact he had not obtained the title documents on the closing.

16. Following the meeting of the 16th July 2008, Mr. Plunkett wrote to Ms. O’Brien to inform her that she would have to discharge additional fees. According to Ms. O’Brien, this was because matters had become more complicated in light of the difficulties in respect of the undertaking and the title deeds. Mr. Plunkett says it was because he had to deal with the charge on 28 Clontarf Road which Ms. O’Brien had not originally informed him of.

17. Mr. Plunkett continued to deal with and seek the title deeds from the solicitors who had been nominated by the Law Society. This led to extensive correspondence between the solicitors and with the Law Society. The Law Society directed the firm to provide the deeds to Mr. Plunkett. Before that was done, a different firm was engaged by Ms. O’Donnell and the file, including the title documents, were transferred to the new solicitor. Mr. Plunkett continued dealing with the new firm in relation to the title issue.

18. Ms. O’Brien withdrew her retainer to Mr. Plunkett in February 2009 though she had indicated that she was going to do so in July 2008.

19. Ms. O’Brien consulted another solicitor. That solicitor issued a Repudiation Notice and a Completion Notice.

20. Between the 10th and 12th June 2009, the solicitors who were then acting for Ms. O’Donnell furnished to Ms. O’Brien’s solicitor what purported to be the deeds. These included a lease to Ms. O’Donnell but this was a lease of the 29th May 2009 (rather than the stamped and registered version of the 2000 lease). The parties were different to the parties to the 2000 lease and did not demise a car park which was included in the 2000 lease. It was executed by Patrick O’Donnell, Catherine O’Donnell, Martin Walsh, Monica Walsh, Jack Connaughton and Desmond Noel Sherry Brennan, Glenbrian Management Company Limited, Martin Walsh and Monica Walsh, Finance Life Limited, and Catherine O’Donnell as lessee.

Ms. O’Donnell had signed this document both as one of the lessors and as lessee. It recited that by an earlier indenture No. 3 Glenbrian Hall had been demised to Catherine O’Donnell from the 1st September 2000 and that this earlier indenture was defective. An Indenture of Assignment with the altered date of the 10th June 2009 from 2007 was also provided which purported to assign Ms. O’Donnell’s interest to Ms. O’Brien. Ultimately, it was accepted in the Supreme Court (to which Birmingham J’s judgment had been appealed) that good and marketable title had not been given to Ms.

O’Brien. It is worth interrupting the narrative at this stage to say that in the documents attached to Ms. O’Brien’s witness statement the solicitors acting for Ms. O’Donnell (and Mr. O’Donnell and Mr. Walsh) at the time explained that they had identified a problem with the 2000 lease and that Ms. O’Donnell had not in fact taken title (so could not assign to Ms. O’Brien). They explained that the same problem applied to other leases also. They saw the 2009 lease and assignment as a means by which to resolve that issue. This lease and assignment were unacceptable to Ms.

O’Brien. She was of the view that Ms. O’Donnell and her solicitors were not entitled to interfere with Ms. O’Brien’s title and that all they should have done was stamp and register the 2000 lease. She was also of the view that the 2009 lease was invalid because the property had already been vested in Ms. O’Donnell by the 2000 lease and could not be revested. She was of the view that the 2009 assignment was invalid and ineffective because it did not refer to the 2009 lease (and it also did not assign a car park space). She also does not accept that it was an effort to rectify a title issues.

She claims that Ms. O’Donnell intermeddled with her title deeds by inserting this lease and by altering the date on the deed of assignment and that she did so in order to improperly gain a financial benefit.

21. Returning to the narrative, in April/May 2009, Ms. O’Brien unilaterally re-entered the property at 28 Clontarf Road. She did so in the belief that she had not received the consideration for this property and therefore was entitled to re-take possession (and ownership). Mr. O’Donnell and Mr. Walsh then issued the injunction proceedings referred to above against Ms. O’Brien. McKechnie J granted interlocutory injunctive relief. He directed that she must vacate the property.

22. Ms. O’Brien delivered a Defence and Counterclaim to those proceedings. She represented herself at the substantive hearing before Birmingham J. In her counterclaim, Ms. O’Brien sought, inter alia, damages for breach of contract and an Order setting aside both contracts. Birmingham J gave judgment on the 21st January 2011 (O’Donnell & Walsh v O’Brien [2011] IEHC 21). He granted an injunction and dismissed Ms. O’Brien’s counterclaim. Ms. O’Brien makes a number of points about these proceedings, including that Mr. Justice Birmingham was incorrectly told that her title had been perfected (by the lease of the 29th May 2009).

23. Birmingham J ordered costs against Ms. O’Brien.

24. Ms. O’Brien appealed Birmingham J’s judgment and his dismissal of her defence and counterclaim. The appeal was dealt with by the Supreme Court in May 2022. The Court was informed at that stage that she was withdrawing her appeal save on the issue of title to No. 3 Glenbrian Hall. The Supreme Court allowed her appeal against the finding that she had been given good and marketable title. The Court also varied the High Court costs Order.

25. Ms. O’Brien claims that she suffered from distress, stress and anxiety and became very ill and her health deteriorated drastically as a result of not obtaining title and all that followed. I return to these issues later in the judgment.

26. She ultimately engaged a solicitor who had previously acted for her in her family law proceedings. He remains her solicitor in these proceedings. He identified a number of issues in relation to Ms. O’Brien’s title.

27. These proceedings were then issued on the 15 th October 2013. A Statement of Claim was delivered on the 28th February 2014. The Statement of Claim was subsequently amended in 2020. I return to the pleadings in due course.

28. On the 7th May 2015, Glenbrian Management Company (the development’s management company) issued proceedings against Ms. O’Brien in respect of a leak. It seems these proceedings went nowhere. Glenbrian Management Company also issued proceedings against Ms. O’Brien on the 23rd July 2015 seeking to have a previous judgment in respect of arrears of management fees declared well-charged. Gilligan J refused to make an Order for Sale. Crucially in the evolution of this matter, Gilligan J appointed a conveyancing barrister to provide an Opinion on title. Counsel provided that Opinion in, it seems, January 2017 and identified serious defects in the title which was purported to have been given to Ms. O’Brien and indeed to the owners of the other apartments.

29. Ms. O’Donnell appointed her current solicitors in early 2018. Ms. O’Brien is critical of the slow pace at which this solicitor dealt with matters (and I consider this below) but I think it is fair to say that this solicitor did address his mind to seeking to resolve the title issues. The steps he took are set out in detail in his witness statement, which he adopted at the hearing. I will have to refer to some of the details later in the judgment but for present purposes the main point is that it ultimately led to an application being made pursuant to the Trustee Act. This came before Reynolds J on the 4 th February 2020. It was supported by Ms. O’Brien, through her solicitor who was in attendance, and Reynolds J acceded to the application. The Order was perfected. The solicitor then set about applying for first registration with the Property Registration Authority and this was finally achieved on the 4th July 2022 after two previous applications had been rejected. Ms. O’Brien was clear that she would not accept the lease of the 29th May 2009 as her root of title and that it should not be referred to in the application for registration. However, this lease was registered as a burden on the folio on the 30th June 2022. This continued to be an issue between the parties until it was deleted from the folio on the 23 rd June 2023.

30. It is now common case that these steps ensure that good title can be furnished to Ms. O’Brien and the hearing proceeded on the basis that the title issue had been rectified. It does, however, bear noting that I have been informed at For Mention dates that the title has not yet been rectified.

31. As noted, these proceedings were issued in 2013, and a Statement of Claim was delivered in 2014. Defences were subsequently delivered. An Amended Statement of Claim was delivered on the 20 th July 2020 and Amended Defences were delivered in December 2020.

32. In the Amended Statement of Claim, Ms. O’Brien claims that Ms. O’Donnell was guilty of breach of contract in failing, neglecting or refusing to give or to assign to or validly transfer to Ms. O’Brien No. 3 Glenbrian Hall, to give clear title to Glenbrian, or to complete the contract relating to the property. The claim against the second-named defendant is that they were in breach of contract and retainer and guilty of negligence in relation to the sale and exchange of 28 Clontarf Road and No. 3 Glenbrian Hall. Specifically, it is claimed that the second-named defendant was in breach of special condition 10 in the contract for

28 Clontarf Road because they allowed completion of the sale when the purchase of No. 3 Glenbrian Hall was not completed on the same day, and that they allowed Mr. O’Donnell and Mr. Walsh to take possession of 28 Clontarf Road when it was “wrong, unsafe and contrary to the agreement of simultaneous exchange to allow them to do so; and acted in breach of special condition 4 of the contract for No. 3 Glenbrian Hall in failing to secure satisfactory title and clear unencumbered marketable title to the apartment before allowing the properties to be exchanged and wrongfully yielded possession of 28 Clontarf Road to the purchasers.” The alleged breach of contract and retainer and negligence are further particularised in paragraph 12 (i) – (xxvi) of the Amended Statement of Claim.

33. Both sets of defendants delivered full Defences and then full Amended Defences, denying, inter alia, the alleged breaches of contract and negligence. However, shortly before the hearing they admitted liability. Thus, the issue to be determined is whether Ms. O’Brien is entitled to the reliefs claimed. It is necessary to identify what relief is sought.

34. The reliefs sought against Ms. O’Donnell in the Amended Statement of Claim are a decree of specific performance of the contract relating to No. 3 Glenbrian Hall, all necessary and consequential accounts, directions and enquiries, and damages for non-completion and breach of contract in lieu of or in addition to specific performance. The reliefs sought against the second-named defendant are damages for breach of contract/retainer and/or negligence. The pleaded losses are (i) loss of consideration of €450,000, (ii) 15% per annum on €450,000 from the closing date to date, and (iii) monies expended on No. 3 Glenbrian Hall. It was agreed that the need for a decree of specific performance had fallen away.

35. The specific reliefs and, in particular, the heads of damages, were refined in the written submissions delivered on behalf of Ms. O’Brien prior to the hearing. The reliefs that were sought at that stage were:

(i) Contractual interest at 12% per annum;

(ii) Damages in the amount of the difference between the value of the property at the date of the agreement and the value at the time of judgment;

(iii) Damages for loss of earnings as a result of becoming unfit to continue working in her job in April 2013;

(iv) Damages for stress and distress;

(v) The costs incurred by Ms. O’Brien in various proceedings. These include the costs of the injunction proceedings, the proceedings involving arrears of management fees, and the costs of the Trustee Act application.

36. At the commencement and conclusion of the hearing, Senior Counsel for Ms. O’Brien further refined the claim and set out what reliefs were still being sought. He stated that the claim for contractual interest did not arise. He also stated that the costs of the injunction proceedings and the management fees proceedings were not being sought and those claims were withdrawn. The claim for loss of earnings was not pursued in its own right but rather it was submitted that the amount of the loss of earnings should be taken into account in assessing the level of general damages.

37. The claims which were pursued, therefore, were the claim in respect of diminution of value of No. 3 Glenbrian Hall (this is also cast as a claim for loss of opportunity to sell);

(ii) the costs of dealing with the Trustee Act application; and (iii) general damages for distress. A claim for aggravated damages was also made. This was a new claim that was only introduced in express terms at the hearing.

38. I will deal with each of these in turn though in a different order.

DAMAGES FOR DISTRESS

39. It was submitted on behalf of Ms. O’Brien that she would be entitled to damages for “distress, disappointment and anxiety” and ill-health caused by the poor condition of the property and, separately, by the defendants’ failures in respect of title. These were advanced as two separate bases though it was accepted that Ms. O’Brien could not recover on the double.

40. However, at the hearing, the claim for general damages was really advanced on the basis of the interplay between the alleged defective condition and the failure to give good title. It seems to me that this was the real basis for the claim and I am approaching the claim on that basis. In any event I am not satisfied that Ms. O’Brien has established that the poor condition of the apartment of the apartment in itself gives rise to an entitlement to damages.

41. Ms. O’Brien’s evidence is that shortly after she moved into the apartment it began showing signs of dampness and mould. She claims that this became serious and she decided very quickly that she would have to move out. She claims that she decided that she would have to get remedial works done in order to sell the property which, she said, would cost €50,000. However, she was unable to raise money because she did not have title and could not give the apartment as security and she was therefore stuck in the

property until title was rectified and this caused her distress, disappointment, anxiety and ill-health.

42. On the basis of this approach, Ms. O’Brien has to establish that the apartment was in defective condition, that she intended to sell, and was unable to raise money due to the title issue, and that she suffered distress, disappointment, anxiety and ill-health as a result. She also has to establish that damages are recoverable at law.

43. I will deal with these in turn.

44. Ms. O’Brien’s own evidence in respect of the condition of the apartment was that “...it took several months and just gradually as the fresh paint smell wore off the smell of mould became very obvious. The wardrobes, just to take your clothes out of the wardrobes, they were actually green mouldy” and “...the mould, the smell of damp, all our belongings, presses, it was just, I had never seen anything like it. I contacted Mr. O’Donnell...Within three months...” Furthermore, Ms. O’Brien gave evidence of having consulted a builder and obtaining an estimate for remedial works. She said that the builder said dampness was coming from the roof top and there was rising damp. She had previously dealt with these issues in her witness statement (paragraph 34) where she said that she told Mr. Plunkett in April 2008 that a builder inspected the property and told her that there was rising damp coming up through the entire apartment block and substantial renovations to the apartment were necessary. She gave evidence that the builder told her that it would costs €50,000. However, the builder was not called to give evidence to give evidence as to cost, the works involved or the reason why they were necessary.

45. Ms. O’Brien did not call any appropriate expert evidence as to the condition of the property or the causes of it in the period after she moved in and when the damp and mould started appearing or in the years since. Indeed, she did not call any appropriate expert evidence in relation to the current condition of the property and the causes of it.

46. The valuers called on behalf of the parties gave evidence as to the current condition of the apartment based on their inspections for valuation purposes. They are not qualified to give evidence as to the causes of any condition or defect that they observed, but they are entitled to give evidence as to their observations of the physical condition. The valuer called on behalf of Mr. O’Brien said that “[V]isibly or nasally it is damp and visibly there is

– I have never seen anything like it, there was water flowing in the carpark and that was taped, just taped up. I just think the condition of that building is not good...” He also said that there were multiple damp issues, in the carpark and in the walls. He said “It is just

not a good development. There is something wrong in that development, the way it was built.”

47. The valuer called on behalf of the second-named defendant said in evidence that the condition of the apartment “looked okay” and that it was in reasonable condition. He said that he did not see “any damage, water damage or anything of the nature.” He described the water in the car park as “a bit of water ingress coming through which I have seen on multiple occasions in carparks, standard enough.” He later described it as “a bit of a dribble of water coming through some bit of cement.”

48. I accept Ms. O’Brien’s evidence in respect of the condition of the apartment. I do so for the following reasons.

49. Ms. O’Brien’s evidence of the condition of the apartment was not challenged by the defendants save in one respect which I return to. Indeed, in cross-examination Senior Counsel for the second-named defendant said “I don’t doubt that the place is in poor condition, I am not suggesting it is not”.

50. It is important to note that the defective condition of the apartment was not expressly pleaded by Ms. O’Brien. Indeed, during Ms. O’Brien’s examination in chief, in the context of an argument about the admissibility of photographs, Senior Counsel for Ms. O’Donnell said that the evidence about the condition of the property was “in respect of something which isn’t pleaded”. However, he did not maintain any objection beyond that and did not cross-examine Ms. O’Brien on this. It seems to me that the fact that it is not pleaded would preclude the plaintiff from maintaining a separate claim for damages in respect of the condition of the property. However, it does not preclude her from raising it as part of the case as to why the failure to give title caused distress and anxiety. I am satisfied that the defendants were not taken by surprise and must have been aware that the condition of the apartment was part of Ms. O’Brien’s case. Ms. O’Brien deals with the condition of the property in her witness statement; she previously cross-examined Mr. Plunkett in respect of informing him of her concerns about the condition of the apartment in the injunction proceedings; it was also raised in a letter to Mr. O’Donnell of the 26 th January 2009 (of course, Mr. O’Donnell is not a party to these proceedings but the letter is attached to Ms. O’Brien’s witness statement, so even if Ms. O’Donnell was not previously aware of this letter at the time, she was aware of it from the 1 st February 2023 (the date of the witness statement); it was also stated in Replies to Particulars of the 13th April 2021 (albeit in a different context) that “[T]he Plaintiff has pleaded that the apartment was defective and damp. As she was unable to sell, the Plaintiff was caused to expend monies on it. If the Plaintiff had been able to sell then the Plaintiff would not have had to expend monies on repairs, upkeep or be liable for service charges.” (It is not clear to me where the plaintiff had “pleaded that the apartment was defective and damp”) but it was clear from this reply that the condition of the apartment was an issue).

51. I am therefore satisfied that the defendants had ample opportunity to challenge Ms. O’Brien’s evidence. They did not do so save in the following limited respect. Ms. O’Brien glazed in the balcony of the apartment shortly after she moved in. It was put to the valuer called on her behalf that this led to a lack of ventilation and he agreed. However, he did not agree that this would give it a sense or smell of damp and no evidence to the contrary was called by the defendants. In any event, the valuer is not qualified to give expert evidence in relation to the cause of the dampness and mould. Furthermore, this was not put to Ms. O’Brien. It does appear to have been an issue in correspondence in 2009 and also in the injunction proceedings because Birmingham J states in his judgment “...I have also had the benefit of expert engineering evidence called by both sides. From that evidence it emerges that there is a conflict about the cause of such problems as exist. In particular there is disagreement about the extent to which a conservatory erected by the defendant may have actually caused or contributed to the difficulties. While the erection of the conservatory may have been unwise, I express no view in that regard, but I am satisfied that all of the problems identified cannot be attributed to the conservatory...”

52. I am therefore satisfied that the apartment suffers from damp and mould and these issues emerged shortly after Ms. O’Brien acquired the property.

53. Secondly, Ms. O’Brien claims that she wished to sell the apartment due to its condition but that she could not do so before carrying out remedial works and that she could not raise money because she could not give the apartment as security without having title. Ms. O’Brien was clear in her own evidence about her desire to sell. She said in evidence that when the problems emerged she raised it with Mr. O’Donnell in December 2007/January 2008 and in or around that time contacted a builder “to see how this could be put right because at this stage I just wanted out of the apartment. It was – it wasn’t the new start that I thought, it had turned into a nightmare.” She explained that her intention in contacting the builder was to get out of the property as quickly as possible. She went on to say that it was “[t]o be able to sell it and put it right, you know. I wouldn’t have liked to do to anybody else what was done to me. But it needed, it wouldn’t have sold in the condition it was in anyway...”

54. There is no evidence that Ms. O’Brien approached any estate agents at that stage in relation to selling. Nor is there any independent evidence of her applying for finance or a mortgage.

55. I do not believe that the fact that she did not approach an estate agent should lead to the conclusion that her evidence that she wished to sell should not be accepted. She could, of course, have asked an estate agent whether it was necessary to repair the apartment in order to sell it. However, her view that it was necessary to do so is perfectly understandable. Furthermore, while the point was made in submissions that she did not take any steps to try to sell, it was not put to her by the defendants that she could have attempted to sell without first repairing the condition of the apartment.

56. There is no objective evidence that Ms. O’Brien sought or applied for finance. Discovery was made and it did not disclose any documents evidencing applications or attempts by Ms. O’Brien. Indeed, she essentially accepted in evidence that she did not make any formal applications. She did say in cross-examination that she “took many steps to many banks to raise €50,000”, that she had meetings with bank managers, that she was with Ulster Bank at the time and spoke to the manager about a loan, that she had several meetings with Ulster Bank, and that she had a meeting with Bank of Ireland.

57. I am unconvinced about these conversations. If they had occurred, one would expect that Ms. O’Brien would have referred to them in her direct evidence. In any event, even taken at their height, they appear to have been no more than informal conversations.

58. However, it is understandable that she would not have applied for a mortgage once she was informed by Mr. Plunkett that she did not in fact have title. It stands to reason that she could not do so without having title. Of course, she was not aware that she did not have title until April 2008 and there is no evidence that she sought finance or a mortgage before that. She was even non-specific about when she had the conversations with bank officials. Again, however, it is perfectly understandable that where a person wishes to sell a property which they had just bought due to its poor condition and requires a mortgage to do so the starting point would be to consult the solicitor who acted for them in the purchase.

59. In this case, Ms. O’Brien had a meeting with Mr. Plunkett in April 2008 and another in July 2008. There is a dispute about the precise contents of the conversations in April and July 2008. Ms. O’Brien says that she explained to him at the meeting in April 2008 that the apartment was in a very poor state and that she wanted to get it fixed up and then sold and she needed the title documents to get a mortgage to renovate it. It was at that meeting that Mr. Plunkett told her that the vendor had not provided the title documents. There was also a meeting on the 16th July 2008. In her witness statement and oral evidence, Ms. O’Brien said that at the meeting in July she was annoyed because Mr. Plunkett had released the deeds to 28 Clontarf Road and she had not received the full consideration. She said that Mr. Plunkett was very upset with what she said to him. She also said that she told him that she would have to get legal advice in relation to the transaction because she wanted to sell Glenbrian and move to Malahide because there was damp and the property was uninhabitable due to its condition. Mr. Plunkett denied that Ms. O’Brien ever mentioned wanting to mortgage the property, raising a mortgage to pay for repairs selling the property, or moving to Malahide. He said in cross-examination that “she never discussed the condition of the apartment with me.” It was put to Ms. O’Brien on behalf of the second-named defendant that there was a meeting in April 2008 but that there was no conversation about a sale or a mortgage. Ms. O’Brien replied that “we did mention the condition of the apartment and I explained the reason I wanted the mortgage was because of the uninhabitable condition of the apartment after that I wanted to sell”. It was put to Ms. O’Brien that Mr. Plunkett would disagree with that version.

60. Strikingly, Mr. Plunkett did not refer to either of these meetings at all in his witness statement notwithstanding how central they are, particularly the April meeting, to the dispute that followed and that they are dealt with by Ms. O’Brien in her statement. Ms. O’Brien attached Mr. Plunkett’s attendance note of the July meeting to her witness statement. This note records that there was a discussion about the mortgage on 28 Clontarf Road but does not record a discussion about Ms. O’Brien wanting to get a mortgage in order to sell the apartment and move.

61. I am satisfied that Mr. Plunkett is incorrect in relation to the question of whether Ms. O’Brien ever mentioned the condition of the apartment, wishing to move, and the need to raise finance, particularly at the meeting in April 2008. It is significant that he did not even recall when this meeting took place despite the fact that it must have been a significant meeting as he had to tell his client that he had not secured the title deeds. Furthermore, he offers no explanation as to why they had a meeting in April 2008. There must have been a purpose for the meeting. In the absence of any explanation by Mr. Plunkett for this meeting it seems to me that it is most likely to have come about due to Ms. O’Brien wishing to discuss the condition of the apartment and/or seeking the title deeds. This is consistent with Ms. O’Brien’s account of wishing to move and telling Mr. Plunkett this. Furthermore, in the transcript of Mr. Plunkett’s evidence in the injunction proceedings (in which he was called as a witness) he confirmed that Ms. O’Brien had raised concerns about the condition and dampness of the apartment. This is contrary to his current recollection. Of course, there has been a significant passage of time and his evidence in the injunction proceedings was much closer to the events in question. It is clear from the questions that were put by Ms. O’Brien in the injunction proceedings that she raised these concerns at the same time as Mr. Plunkett first told her of the title problem. Mr. Plunkett confirmed that Ms. O’Brien explained that she was living in bad conditions, and he stated that he recalled Ms. O’Brien being very concerned about the condition of the apartment. He also confirmed that Ms. O’Brien requested the title documents. He said that he had no recollection of a mortgage being mentioned. During the course of the cross-examination of Mr. Plunkett in the injunction proceedings, Ms. O’Brien referred to this as being in January 2008, but it seems to me that she was incorrect. Indeed, neither Ms. O’Brien or Mr. Plunkett referred to any conversation in January 2008 in their witness statements or their evidence before me. This error on the part of Ms. O’Brien casts some doubt on the accuracy of her recollection but it is also noteworthy that Mr. Plunkett did not correct Ms. O’Brien at the time.

62. It is entirely possible that Ms. O’Brien was not as clear with Mr. Plunkett as she believes and that there was therefore a misunderstanding. However, I am satisfied that she did say that she wanted to raise finance in order to sell. There is no other reason why she would have been looking for the title deeds from her solicitor.

63. I am therefore satisfied as a matter of fact that the apartment was damp and mouldy, that Ms. O’Brien wished to sell and move but would not have been able to get a mortgage without title.

64. Ms. O’Brien also has to establish that she suffered damage as a result of the failure to provide or secure title and that they are damages which are recoverable in law. Ms. O’Brien’s claim is that shortly after she moved into the apartment it began showing signs of dampness and mould. She claims that this became serious, and she decided very quickly that she would have to move out. She claims that she decided that she would have to get remedial works done in order to sell the property. However, she was unable to raise money because she did not have title, and she was therefore stuck in the property until title was rectified and this caused her distress, disappointment, anxiety and ill-health. I deal with the question of damage and causation below. I deal with the legal principles first.

65. As a matter of contract law, non-pecuniary losses (to include damages for mental distress and disappointment) are not recoverable, subject to limited exceptions. Those exceptions were considered by the Supreme Court in Murray v Budds [2017] 2 IR 178, Denham CJ had to consider the question of whether a claim framed as a professional negligence action seeking damages for negligence and breach of contract, in which the particulars of loss and damage claimed were worry and stress short of physical injury, should be treated as a personal injury action, and therefore subject to the statutory limitation period applicable to personal injury actions (see Murray v Budds [2016] IESCDET 20). Denham CJ held that because the claim in breach of contract had previously been disallowed, the claim was one in tort only and was statute barred. She went on to hold that as it was a claim for “worry and stress” without any psychiatric illness, no damages would, in any event, be recoverable (paragraph 26). She agreed with the judgment of Hogan J in Walter v Crossan [2014] IEHC 377 to the effect that damages for worry and stress not giving rise to psychiatric injury are not recoverable in tort. However, notwithstanding that the claim in breach of contract had previously been disallowed, Denham CJ considered whether loss and damage arising from “worry and stress”, short of psychiatric illness, may be recovered in an action for breach of contract and professional negligence. She referred to Addis v Gramaphone Co Ltd [1909] AC 488 and held that it had remained the foundational case on this issue for many years. It set out a number of exceptions to the rule that damages for “worry and stress” are not recoverable for breach of contract. These particular exceptions are not relied upon by Ms. O’Brien but additional exceptions have been added in specific cases. Denham CJ referred to Bingham LJ’s decision in Watts v Morrow [1991] WLR 1421 and agreed with the following statement:

“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy. But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind, or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead...” [emphasis added]

66. Denham CJ stated at paragraph 38 that the key is that one looks to the very object of a contract. She gave the example of a case where the solicitor had been retained specifically to address the anxiety of a wife that her husband would abduct their children. The children were abducted, and her solicitors had taken insufficient measures to prevent the abduction. Denham CJ also gave other examples, including contracts in relation to holidays, where such a contract is to provide for pleasure and relaxation. Denham CJ referred to the Australian case of Baltic Shipping Co. v Dillon (1993) 11 ALR 289 and the case of Smyth v Huey & Co [1993] NI 236. Brennan J said in Baltic Shipping Co. v Dillon:

“To ascertain whether the obtaining of peace of mind is the object of a contract or, more accurately, an object of a contract, reference is made to its terms, express or implied, construed in the context of facts which the parties know or are taken to have known.

Thus, if peaceful and comfortable accommodation is promised to holidaymakers and the accommodation tendered does not answer the description, there is a breach which directly causes the loss of the promised peacefulness and comfort and damages are recoverable accordingly. In cases of this kind, a statement of the promisor commending a service or facility to be provided under the contract is frequently a term of the contract, not a mere representation.”

67. In Smyth v Huey & Co, the plaintiffs brought a claim for damages for personal injuries arising out of the defendant solicitors’ negligence. It was claimed that one of the plaintiffs had “developed depression as a result of the anxiety, worry and, to use the current but expressive jargon ‘hassle’ which he was subjected to and endured”. The other plaintiff claimed that she was diagnosed with schizophrenia and this was caused, contributed to, or precipitated by stress caused by the breach of duty. It was also claimed that each plaintiff was entitled to general damages for inconvenience, distress and annoyance. McDermott LJ held that the first-named plaintiff did not suffer from depression and the second-named plaintiff had not established that her schizophrenia was caused by the defendants’ negligence. Thus, the question which is of relevance to the current discussion is whether either of them were entitled to damages for general distress, inconvenience and annoyance. McDermott LJ quoted the passage from Bingham LJ’s

decision in Watts v Morrow set out at paragraph 65 above and went on to quote the rest of the passage from that judgment:

“...If the law did not cater for this exceptional category of case it would be defective. A contract to survey the condition of a house for a prospective purchaser does not, however, fall within this exceptional category. In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort.

If those effects are foreseeably suffered during a period when defects are repaired I am prepared to accept that they sound in damages even though the costs of the repairs is not recoverable as such. But I also agree that awards should be restrained, and that the awards in this case far exceeded a reasonable award from the injury shown to have been suffered.”

68. McDermott LJ went on at paragraph 246 to say that:

“Thus it seems to me that a plaintiff is not entitled to general damages for ‘distress and inconvenience’ unless he can bring himself within one of the two exceptions to the general rule: namely (1) Mental distress caused by physical discomfort or inconvenience resulting from the breach of duty in contract or in tort. (2) A contract whose very object is to provide pleasure, relaxation, peace of mind or freedom from molestation.”

69. Thus, Ms. O’Brien can only recover for mental distress caused by physical discomfort or inconvenience resulting from the breach of duty of contract, or if the very

object of the contracts with the defendants was to provide pleasure, relaxation, peace of mind or freedom from molestation.

70. It was submitted on behalf of Ms. O’Brien that the contract for the purchase of No.

3 Glenbrian Hall is properly characterised as personal and that its object was to provide pleasure, relaxation, peace of mind or freedom from molestation. I was referred to Dinnegan v Ryan [2002] 3 IR 178. This related to a publican refusing access to a bride and groom on their wedding day. The Court held:

“The loss sustained by the plaintiffs arising from the breach of contract was not just disappointment at losing the advantages which might accrue from a successfully completed commercial transaction. The loss which they sustained, was the denial to the plaintiffs of an occasion for enjoyment and happiness to be shared with their family and friends. That was the essence of the contract. For that loss they are entitled to compensation.”

71. Ms. O’Brien relied on Leahy v Rawson & Ors (Unreported, O’Sullivan J, 14th January 2003) and Mitchell v Mulvey Developments Limited & Ors [2014] IEHC 37. I return to these in a moment.

72. I am satisfied that the object of the contracts with Ms. O’Donnell and the secondnamed defendant were not personal, in the sense of having as their object the provision of pleasure, relaxation, peace of mind or freedom from molestation.

73. The plaintiff in Smyth v Huey & Co relied on the “holiday“ cases and argued that the contract was to effect the conveyance of a family home and that it must have been within the contemplation of the defendants that the plaintiffs were expecting them to discharge their duties so that they could enjoy their new home. McDermott rejected the reliance on the “holiday” cases and this argument saying:

“To my mind these cases are far removed from the present. The purpose of the contract between the Smyths and the defendants was that the latter should do all conveyancing actually necessary to convey [the house] into Mr. Smyth’s name with good title. In such circumstances a purchaser’s solicitors are not agreeing to provide an enjoyable home – no one knows at the conveyancing stage if a property will turn out to be an enjoyable or unsatisfactory home. I do not consider, and have not been satisfied by the evidence, that the contract in the case could properly be described as one ‘to provide entertainment and enjoyment...”

74. I agree with this as a general proposition. In general, the object of a contract for the purchase of land is precisely that – to effect the purchase. Its object is not to contract with the purchaser that the land will be enjoyably used for any particular purpose. The object of a contract for professional services in respect of such a transaction is a contract to perform with reasonable care the conveyancing to convey the property to the purchaser.

75. I am however satisfied (subject to the discussion below in relation to causation) that damages are in principle recoverable by Ms. O’Brien under the first exception. Ms. O’Brien has suffered physical discomfort and inconvenience arising from the dampness and mould taken together with the inability to move from the property due to the absence of title. She describes there being a smell of mould and clothes coming out of the wardrobe with green mould on them. She could not recover damages for distress caused by the physical discomfort from the dampness and mould alone. However, by not being able to sell and move due to the failure to provide title (or to ensure that title was obtained), she was compelled to remain in the property.

76. I am also satisfied that she has suffered from mental distress, anxiety and ill-health during the period since 2008. However, the real question is whether this distress, anxiety, and ill-health were caused by the physical discomfort and inconvenience brought about by the defendants’ breaches of duty.

77. I will deal with the question of ill-health first and then with the question of mental distress and anxiety.

78. Ms. O’Brien has undoubtedly suffered from significant episodes of ill-health. Her evidence is that she suffered from kidney failure which required dialysis three times per week for a period and that she subsequently suffered from lung failure. However, Ms. O’Brien did not adduce any medical evidence establishing a link between these difficulties and the defendants’ breaches of duty. Indeed, it was emphasised by Senior Counsel for Ms. O’Brien that this was not a personal injuries claim. Furthermore, Ms. O’Brien’s evidence was that her doctor said that she could not blame her lung failure on the legal difficulties. I did permit a medical report from her General Practitioner to be admitted even though the doctor was not called in circumstances where it was referred to in cross-examination but I did not permit it to be relied upon as proof of its contents. I can not, therefore, conclude that Ms. O’Brien’s physical health difficulties were caused by the defendants’ breaches of duty.

79. In relation to distress and anxiety, in her evidence, Ms. O’Brien said that the smell of mould became very obvious and clothes were coming out of the wardrobe with green mould. She explained that her daughter had asthma. She described what she thought would be a new start as having turned into a nightmare. In documents attached to her witness statement, she explains how it was necessary for her daughters to spend prolonged periods with their grandmother. In her witness statement, Ms. O’Brien said that she was devastated that she did not have title. She said “I was shattered, I got very depressed and ill and I considered myself homeless, living in a damp flat. I did not own it because my solicitor had given away all my money in the value of my property in Clontarf. I had never felt so low.” She also described how, when she received the conveyancing counsel’s opinion in 2017, she cried for a week with the relief that she would finally be able to get out of the conditions that they were living in. Ms. O’Brien was not challenged on these matters.

80. I am satisfied that this distress and anxiety were partly caused by the breaches of duty in respect of title. Indeed, Senior Counsel for Ms. O’Donnell correctly accepted that “failure to provide good title would cause a certain amount of stress and anxiety”. However, it is equally clear that other factors contributed to the distress and stress. These factors include a separate injury and Ms. O’Brien’s own actions in re-entering 28 Clontarf Road.

81. Ms. O’Brien accepted that she suffered a serious injury to her face in 2012 and she had been left with neuralgia. She agreed with Senior Counsel for the second-named defendant that “years after that you were suffering, and perhaps still are, from excruciating constant pain, insomnia and difficulty eating et cetera, all of those.” She said “the facial injury damaged nerves and that would have added to the facial injury, because of this case, would have neuralgia, it gets very highly stressed from nerves so the more stress the higher the pain.” She also confirmed that she previously suffered from a level of anxiety. She also said in relation to the neuralgia that “it is very painful and what actually it makes accelerate is actually stress. So if you have got a bout of neuralgia, it could be days...”

82. I am satisfied that mental distress was caused by Ms. O’Brien’s own actions in unilaterally re-taking possession of 28 Clontarf Road, an action which Birmingham J held was wrongful. Ms. O’Brien’s own evidence of the level of stress caused by the proceedings which arose from that action is very clear. She said in evidence that following Birmingham J’s decision and her filing an appeal she became ill and had to leave her job due to stress. At paragraph 75 of her witness statement she said, inter alia:

“Following the trial of the action, I was devastated because I was facing costs in the first action against my former partner, Mr Ryan, and now had a substantial award of costs against me in respect of the plaintiffs’ claim in the injunction proceedings. I entered my old premises at the Clontarf property because [her former solicitor] advised me to do so, because I had not received the full consideration but only part consideration the sale was

not closed. At that time, I was in deep trouble because Patrick O’Donnell’s solicitor had served the Bill of Costs, the costs were to be taxed and eventually the costs were taxed in excess of €140,000. At that time, I became very ill and my health went downhill when I realised what was happening to me, that I had no title deeds to my property and was facing the loss of my property with the award of costs. I was unable to work, I had to attend my doctor on numerous occasions and I was on dialysis three times a week because my immune system collapsed. I decided to accept my mother’s advice who made an appointment for me to see my former solicitor...”

83. Ms. O’Brien was cross-examined about this on behalf of Ms. O’Donnell. It was put to her that the contents of this paragraph appeared to suggest that the distress and health issues were as a result of the injunction proceedings. It is worth setting out the short exchange:

“Q. ...So in the immediate aftermath of the experience of losing the High Court proceedings, your evidence is that is when your health, you became very ill and your health went downhill?

A. Well it didn’t become – it was gradually becoming. I was gradually becoming sick.

Q. I am sorry, I understood the phrase “I became very ill” to be something more dramatic?

A. Well it did become dramatic, my kidneys failed.

Q. Okay. When you say “I became very ill at the time”, that is in the immediate aftermath of the litigation?

A. It was maybe several months after the litigation that I suffered kidney failure.

Q. Do you relate it to the litigation?

A. I relate becoming ill to the litigation. I don’t think anybody can blame kidney failure on litigation or stress but it certainly didn’t help, the level of stress my body was under and that was in my doctor’s words.”

84. Senior Counsel for Ms. O’Donnell also put particulars of loss which were served on behalf of Ms. O’Brien in November 2022 to her. The particulars of loss referred to Ms. O’Brien’s employment and went on to say that she “...took leave of absence to prosecute the defence in the High Court case, Patrick O’Donnell and others v Janice O’Brien. The plaintiff was gainfully employed and ceased working due to the pressures of defending the claim. The plaintiff could not afford a solicitor or barrister and had to defend the case.” In response, Ms. O’Brien said that it was a combination of stress and having to defend the proceedings. When it was put to her that her case is that the cause of her loss of employment was defending the injunction proceedings, she confirmed that was the case, that she had to leave and had no choice. Senior Counsel than put it to her that “So in fact the injunction proceedings were brought about by your unlawful entry on the Clontarf premises, as found in the High Court and the Supreme Court. That unlawful occupation of the premises was predicated upon the advice of [her new solicitor] and you still decided to give him a free pass. Why then do you seek to blame Catherine O’Donnell for losing your job?” She answered that she does not blame Catherine O’Donnell for losing her job, that she blames her for “pretending she owned an apartment that she didn’t actually own.”

85. It is clear from Ms. O’Brien’s own evidence that her mental distress were at least partly caused by her own actions in re-taking possession of 28 Clontarf Road and the proceedings which ensued. These proceedings continued in the form of Ms. O’Brien’s appeal to the Supreme Court. This was also framed by the defendants in the context of the obligation to mitigate her losses.

86. In relation to mitigation, in McKew v Holland, Hammond and Cubitts (Scotland) Limited [1969] 3 All ER 1621 (HL), Lord Reid stated:

“If the injured man acts unreasonably, he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens.

The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defenders’ fault tort or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability.”

87. In Hyland & Ors v Dundalk Racing (1999) Limited [2017] IECA 172 Irvine and Finlay Geoghegan JJ stated the common law principle that a plaintiff cannot recover loss that could have been avoided had they acted reasonably in the prevailing circumstances and also said at paragraph 82:

“Apart from the aforementioned common law principles, s.34(1) of the Civil Liability Act 1961 is also of relevance. That section provides that where an action is brought in respect of a wrong (which includes a breach of contract), and where it is proved that the damage suffered to the plaintiff was caused partly by the want of care of the plaintiff and partly by the wrong of the defendant, the damages recoverable in respect of that wrong shall be reduced by such amount as the court thinks just and equitable. Under s.34(2)(b), negligence or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such same exceeds the damage that would otherwise have occurred. It is important to note that the wording of s.34(1) provides that the damages recoverable in respect of the wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and the defendant. The test under this section is to be assessed on the basis of blameworthiness by reference to what a reasonable man or woman would have done in the circumstances.”

88. It was sought to be argued that all of Ms. O’Brien’s distress other than caused by the facial injury) was caused by her own unreasonable actions including re-entering 28 Clontarf Road. I think it is artificial to disregard entirely the distress that was caused by the predicament in which Ms. O’Brien found herself, i.e. in a damp mouldy apartment without title and therefore unable to move. Nonetheless, it seems to me that the facial injury and Ms. O’Brien re-taking possession of 28 Clontarf Road and the ensuing court proceedings are both very significant contributory factors to Ms. O’Brien’s mental distress, and must be taken into account in the assessment of damages.

89. It was also submitted on behalf of Ms. O’Donnell that Ms. O’Brien herself was responsible for her own distress because it was prolonged by of the nature of her defence and counterclaim in the injunction proceedings where she was seeking to undo the entire arrangement including the sale of 28 Clontarf Road and the purchase of No. 3 Glenbrian Hall. It was submitted that this was an unsustainable claim which complicated matters and made resolution impossible. Her position was that the whole transaction should be unravelled and both properties should be returned. This was only resiled from in the Supreme Court. I do not need to determine this as I have already decided that some of the stress was caused by Ms. O’Brien’s actions in re-taking possession, which gave rise to the injunction proceedings and the appeal. I would not be satisfied to conclude that Ms. O’Brien’s position, in her counterclaim in particular, was so unreasonable or unsustainable that the mere fact of maintaining that position could be seen as grounds to reduce an award of damages on the basis of McKew or Hyland. While Birmingham J held that there were two separate transactions, the position that they were two aspects of one transaction was not unreasonable. It must also be recalled that while the relief was being sought by Ms. O’Brien in those proceedings was not conceded, it was ultimately conceded that Ms. O’Brien had not been given good and marketable title. I should also say that I do not accept that her position made it impossible to resolve the issues of title.

90. As noted above, Ms. O’Brien relies on Leahy v Rawson & Ors and Mitchell v Mulvey Developments Ltd in respect of the entitlement to an award of general damages and in respect of quantum.

91. O’Sullivan J said in Leahy v Rawson & ors (at pages 37 – 39):

“A number of Irish cases have established that a plaintiff is entitled to general damages in circumstances such as the present. In Johnson v. Longleat Properties (Dublin) Ltd.

[1976 – 1977] I.L.R.M. 93 McMahon J. established this principle when he acknowledged that it had (then) recently received recognition in Jarvis v. Swan Tours Ltd. [1973] 1 Q.B.

233. He awarded general damages in that case for inconvenience and loss of enjoyment within the presumed intention of the parties. So did Carroll J. in Roche v. Peilow (Unreported, High Court, Carroll J., 8th July 1986) where she awarded the plaintiffs a total of £22,000 for strain involved in uncertainty relating to the legal title of their house and consequent financial worries attributable to negligence of their solicitor in conveying the house. The £22,000 appears to have been referable to an eleven year period during which the carefully calculated finances of the plaintiffs went into disarray and they had financial worries and uncertainties about the house title resulting in great personal strain on both the plaintiffs and their marriage. They were entitled to what Carroll J. described as substantial damages for the foregoing troubles and also for social embarrassment, inability to have their own families visit and miserable conditions at home. They were also awarded a sum of £8,000 into the future. In Doran v. Delaney (No. 2) [1999] 1 I.R. 303 Geoghegan J., explicitly having regard to the judgment of Carroll J. just referred to, awarded £10,000 general damages for anxiety and upset as a consequence of the negligence of the building contractor defendants. In Roche some of the plaintiff’s distress was due to the husband’s unemployment; also, there was evidence of depression which was reflected in the general damages both past and future.

In Roche and Doran there was evidence of health problems attributable to the negligence of the defendants in respect of which there was no evidence in the present case. It is also true that the plaintiff in the present case has included a number of medical type expenses but no evidence was given in relation to them.

On the other hand, her finances were clearly put under severe pressure and went into some disarray in a way which clearly relates to the breaches of the defendants. The plaintiff was attempting to provide a home for her son during six crucial years of his life when he was aged between 9 and 15, she had to contend with living at the rear of a partially completed house and extension with no landscaping and a generally untidy outlook (I am bearing in mind that relatively little expenditure of effort or money could have produced an improvement in this regard) and perhaps worst of all she and her son had to live in excessively cramped conditions because they had occupied a small two bedroomed “garage” structure (24 ft by 34 ft) accessed by way of the partially finished badly built building referred to. There was evidence that this structure had acquired a reputation (which was the reason given for the builder’s unwillingness to come within 40 ft of it – to

use the expression of Barra Flynn the plaintiff’s solicitor) and also that the plaintiff’s son was unable to have friends up to the house to visit him.

A review of the cases shows that general damages under this heading has traditionally been modest and indeed were so described by Lord Mustill in Ruxley Electronics –v- Forsythe [1996] 1 A.C. 344. On the other hand Carroll J. held the plaintiffs in Roche entitled to substantial damages.

Towards the end of the trial I visited the house and inspected it in the presence of representatives of all parties. The plaintiff lives in the garage which is located at the back of the house from the road and looks onto the incomplete and defective building which has been left in that state (with some minor additions by way of reveals and other limited work done by her father) since the break up of her partnership in July, 1997. It is a depressing and untidy sight and the existence of this incomplete and defective work is a major disamenity whereas what should have been provided included landscaping albeit, at the price charged, landscaping of a rudimentary kind. I do not think I am entitled to take into account in addition the fact that the presence of the house in its incomplete state continues as a harrowing and offensive reminder of the tension and stress brought on not only by a failure of the building works but also by the collapse of the plaintiff’s relationship in July 1996. It seems to me that the plaintiff is entitled to a sum in to the amount of £5,000 for each of the six years commencing in mid-1997 to the commencement of the trial and allowing for a further period of disruption, likely to amount to a further year from now, while the extension is being demolished and re-built. She is therefore entitled to a sum in this regard of £30,000.”

92. In Mitchell v Mulvey Developments Ltd, Hogan J said at paragraph 20:

“In Leahy v. Rawson [2004] 3 I.R. 1 O’Sullivan J. allowed the sum of IR£5,000 per year in respect of general damages for “anxiety and upset as a consequence of the negligence of the building contractor defendants.” This, of course, was an Irish pounds sum and it further referred to events which took place over the late 1990s and early 2000s. While it is true that inflation has on the whole been low since 2003 (the date of that judgment), I propose to allow each of the plaintiffs the sum of €10,000 per year as measured by that benchmark. The extent of the inconvenience and distress in Leahy was admittedly considerable, but this case is, if anything, probably worse. I will accordingly award the two plaintiffs €20,000 for each of the last nine years, i.e., a total sum of €180,000 for anxiety distress, upset and inconvenience as a result of negligence and breach of contract.”

93. Both of these cases must be approached with some caution as they were building cases.

94. As touched on above, Ms. O’Brien claims that she had to give up her job in April 2013 (it appears that she took a leave of absence earlier). She did not pursue a claim for loss of earnings but rather urged the Court to have regard to the figure for loss of earnings when assessing the appropriate level of general damages. There are a number of difficulties with doing so. Firstly, on the plaintiff’s own Particulars of Loss, she “ceased working due to the pressures of defending the claim” in the injunction proceedings. Secondly, loss of earnings per se would not be recoverable. They are too remote. In Doran v Delaney (No. 2) [1999] 1 IR 303, the plaintiff originally claimed loss of earnings due to time spent by the plaintiff resolving the difficulties arising from the defendant’s breach of contract, breach of duty and negligent misstatement. This was abandoned (described by Geoghegan J as “properly abandoned”) at the hearing as being “too remote”. Geoghegan J stated “I am of course totally disallowing item 4 being loss of earnings as being too remote.” Furthermore, if the loss of earnings claim is founded on a claim for damages for personal injuries it could not succeed because the claim was not authorised by PIAB and, in any event, such a claim would be statute-barred. The relevant dates were that Ms. O’Brien claimed to be unable to work from the 1st April 2013 and the first time a claim for injuries in the nature of personal injuries was made was in the Amended Statement of Claim dated the 20th July 2020. It was further submitted that insofar as Ms. O’Brien claims for psychiatric damage in the absence of physical injury Ms. O’Brien fails to meet the criteria set out in Kelly v Hennessy [1995] 3 IR 253 and Fletcher v Commissioners of Public Works [2003] 4 IR 465. Finally, there is no medical evidence to the effect that the reason she was unable to work was the defendants’ breaches of duty. In those circumstances, I can not take account of the figure for loss of earnings.

95. It was accepted on behalf of Ms. O’Donnell that damages for inconvenience and loss of enjoyment were awarded in Johnson v Longleat Properties [1976-1977] ILRM 93 and in Roche v Peilow [1986] WJSC-HC 1643 but distinguished them from the instant case. In Johnson, the damages that were awarded only reflected a period of time that the plaintiff was required to vacate the house for remedial works to be carried out and the damages were therefore for inconvenience only. In Roche v Peilow, Carroll J awarded general damages on the following basis:

“Taking into account all the elements mentioned in evidence, (social embarrassment, inability to have their own families to visit, miserable conditions at home,) and on the basis that the bad building could have been remedied if the title had been in order, as general damages to date, having been asked to award a joint sum, I award £22,000. In calculating general damages in the future I have taken into account the damage done to both of them physically and mentally which will leave its mark in terms of future depression, and heightened susceptibility to illness. There is also an allowance for not having a mortgage. I award a joint sum of £8,000.”

In this case, on the other hand, it was submitted, Ms. O’Brien moved into the Glenbrian property in October 2007 and resided there since and does not make any claim for damages in respect of the condition of the property. I do not accept that moving out of the property is a pre-condition to an entitlement to damages, if the other requirements for such an award are satisfied. In Roche v Peilow, much of the award was not referable to the plaintiffs having spent time out of the relevant property. In Mitchell v Mulvey Developments, Hogan J awarded damages to three sets of plaintiffs but there is only reference to one of the sets of plaintiffs moving out of their house.

96. In my view, the correct approach is to award a sum in respect of each year since Ms. O’Brien became aware of the fact that she did not have title in April 2008 (the failure to give or obtain title could not have caused distress before then) to the date upon which title was resolved (which, for the purpose of this assessment, I am taking as the date of the hearing) with appropriate reductions to reflect that the mental distress was contributed to by Ms. O’Brien’s facial injuries, her own action in re-taking possession and the proceedings arising therefrom. It seems to me that the best guide as to quantum is the

decision in Hogan J in Mitchell v Mulvey Development as it is the most recent, though some allowance has to be made for inflation in the ten years since judgment. Every case will, of course, depend on its own facts. Hogan J awarded €10,000 per plaintiff per year. However, the difficulties suffered by the plaintiffs in that case were worse than in this case. The houses in question had a “multitude of defects”. For example, in one of the houses there was water staining in the ceiling of the playroom within a month of the plaintiffs moving in, and within four months water started streaming through the playroom ceiling and down through the downlights which required the emergency evacuation of the house and later that evening the plasterboard on the ceiling collapsed. A year later the ceiling collapsed again. Hogan J described the impact on the plaintiffs’ family life in the following terms “The balcony has had to be boarded up and this has obviously been the subject of comment in the community. Traditional parties for the children – such as birthdays, Christmas and Halloween – have been overshadowed by a playroom which is a poor state of repair. The master bedroom is so cold that Ms. Mitchell was forced to don a ski cap to keep warm and in the last twelve months she abandoned the effort and moved out of that bedroom.” One of the other houses suffered pervasive cracking in the walls, the kitchen floor subsided and the sitting room floor started to slope. Plaster fell off the walls on a regular basis. There was a partial collapse of the kitchen ceiling and the internal brickwork was cracked. The house was cold and was always vulnerable to draughts. In a third house there were extensive serious defects which are described in paragraphs 38-41 of Hogan J’s judgment, including: extensive cracking in the walls, including the major supporting walls, which allowed wind and rain into the house; the kitchen cupboard doors began to come loose and the kitchen windows jammed as if due to downward pressure; intermittent odours from the sewage system; the central heating system did not work and the bedrooms were extremely cold. Hogan J also dealt with the impacts on each of the plaintiffs.

97. I therefore believe, allowing for inflation since Hogan J’s decision, that the appropriate figure, if the mental distress was entirely caused by the defendants’ breach of duty would be €6000 per year. The relevant period runs from the date of Ms. O’Brien becoming aware that she could not sell due to absence of title to July 2023 (fifteen years). Thus, the total sum would be €90,000. This must be reduced to reflect Ms. O’Brien’s own evidence that mental distress was caused by the proceedings brought about by her own actions of re-taking possession of 28 Clontarf Road and that she suffered stress as a result of pain from her facial injury. These are significant contributory factors. The appropriate reduction to reflect that significance is 60%. I will therefore award €36,000 for general damages for mental distress and anxiety.

DIMINUTION OF VALUE/LOSS OF OPPORTUNITY

98. Ms. O’Brien claims that she is entitled to recover damages to reflect a diminution in value of the property between the date of purchase and the date of hearing. The defendants reject that she is entitled to recover the difference and dispute Ms. O’Brien’s current valuation of the property.

99. In relation to the claim against Ms. O’Donnell, it was submitted on behalf of Ms. O’Brien that the appropriate time to assess the damages is at the time of judgment (see Duffy v Ridley Properties [2008] 4 IR 282 where it was held that the normal rule is that damages should be assessed as at the date of breach but that it is open to the court to assess the damages at the date of hearing or judgment or, indeed, to fix a date other than the date of breach or the date of judgment). It was also submitted that the “normal rate as to damages” in cases involving breach of contracts for the sale of land (i.e. the claim against Ms. O’Donnell) is the difference between the value of the land at the time of the agreement and the value at the time of judgment (Roberts v O’Neill (Unreported, Supreme Court, McWilliam J, 3rd July 1981).

100. It was accepted on behalf of Ms. O’Donnell that a purchaser may be entitled to damages for “loss of bargain” for failure to deliver good and marketable title but denies that there is a “loss of bargain” in this case in circumstances where Ms. O’Brien has been in possession of the Glenbrian property since 2007 and has now received good marketable title. She distinguished the case of Roberts v O’Neill on the basis that in that case the court was considering either to grant a decree of specific performance or to award damages in favour of the original purchaser. She also distinguished Duffy v Ridley Properties Ltd on the basis that the court had refused to grant specific performance and held that the plaintiff was entitled to damages in lieu of specific performance. Duffy v Ridley Properties Ltd was undoubtedly a case where specific performance had been refused and therefore Finnegan J was considering the point at which damages should be assessed in the context of specific performance having been refused. However, I see no reason in the judgment why the point that damages can be assessed at the date of judgment or some other date rather than the date of breach should not be of general application.

101. In relation to the claim against the second-named defendant, the parties addressed the principles applying to claims for professional negligence in property transactions.

102. In ACC Bank plc v Johnston & Co. Solicitors & Ors [2010] IEHC 236 (referred to by Clarke J in Kelleher), Clarke J said at paragraphs 7.3 – 7.7:

“7.3 It is a difficulty which is compounded by the second factor to which I wish to refer.

The case made by ACC is that, had Mr. Johnston not been negligent, none of the relevant funds would have been advanced to Mr. Tiernan. The evidence led by ACC in that regard is compelling. Each of the relevant senior officials from ACC gave clear and credible evidence to the effect that they would not have authorised funds being paid out to Mr.

Tiernan unless a three-way closing were in place. I am satisfied, therefore, that this is a so-called “no transaction” case, in the sense in which that term is used in the United Kingdom jurisprudence.

7.4 The logic of a no transaction case stems from the basic principle that damages, either in tort or in contract, are designed to put the injured party into the position in which that party would have been, had the tort not taken place or the breach of contract concerned not occurred. Where the breach of contract involves professional negligence on the part of an advisor, then there is unlikely to be, in most cases, any significant difference between the proper approach, whether same is considered from the perspective of a tort or a breach of contract, for the breach of contact concerned will simply be a failure to act or advise in a nonnegligent way (with the relevant duty of care being assessed by according due weight to any relevant terms of the contract).

7.5 It follows that it is necessary to analyse, on the facts of each case, what would (or would have been likely) to have occurred had there been no negligence. An advisor (whether lawyer, valuer, accountant or the like) who is involved in a transaction cannot guarantee that his client will get what he wants out of the transaction. He or she can only guarantee that the relevant part of the transaction (including any relevant advice) will be carried out in a competent manner. In some cases, it will be clear that, had the relevant advisor carried out his or her duties in competent manner, no transaction would, in fact, have taken place. A solicitor instructed on behalf of a purchaser in a conveyancing transaction does not guarantee that the relevant client will get a good title to the property concerned. Rather, the solicitor commits that there will be an adequate investigation of the title and that the client will only be allowed to complete in the event that good title is made out. If the solicitor negligently advises that there is good title (when there is not), then a proper analysis of the situation suggests that, had the solicitor not been negligent, the relevant sale would not have closed. The fundamental approach to damages in such cases must necessarily, therefore, involve an analysis of what would have happened had the transaction not taken place, rather than what would have happened, had the transaction taken place without any problems, for the solicitor could not, in the hypothetical case which I have posited, have procured that the sale would have taken place without problems.

7.6 It must be recalled that damages for breach of contract or tort are designed to restore the injured party to the position in which they would have been had the relevant wrong not taken place. In the ordinary way such damages are assessed as of the date of the wrong concerned, although it is clear that the court retains a wide discretion to choose another date where assessing by reference to the date of the wrong would not adequately reflect the overall and fundamental principle that the injured party should be restored to a “no wrong done” position.

7.7 The problem in assessment stems from events that post date the wrong.

Consequential losses which accrue after that date, but as a foreseeable consequence of the wrong, will normally be allowable. In a “no transaction” case, involving the injured party expending monies as of the date of the wrong, damages will normally involve the amount of the monies so expended less any value obtained by the transaction (which obviously would not have been obtained had there been no transaction). However, damages also need to reflect the fact that the party has been without of its money between the date of the wrong and the trial.”

103. He also said at paragraphs 7.11 and 7.12:

“7.11 In general terms, it seems to me that there may well be cases where such a “surrogate” approach is an appropriate way to look at damages. If, for example, the purchaser of an ordinary residence ends up with no title to the property concerned by reason of the negligence of a solicitor, then it will normally be reasonable to assume that, had the purchaser been properly advised and had the sale not, therefore, gone through, the purchaser would have bought a similar house for similar money. Precisely what house the purchaser might or might not have bought is purely speculative. However, using the house which was actually bought as a surrogate seems to be a reasonable approach to putting the purchaser back into the position in which the purchaser would have been, had the negligence not taken place. In those circumstances, another similar house would have been bought which would have appreciated or depreciated at broadly the same rate.

Assessing the situation in which he would now be, had there been no negligence, by reference to the house which the purchaser actually tried to buy, seems a reasonable way of approaching damages in those circumstances. It would not, however, always be the case that such an approach is appropriate. For example, if there was some special feature of the house which, for reasons emerging after the time of purchase, added significantly to its value (such as a change in zoning not contemplated at the time when the house was originally bought), then it is difficult to see how such a “windfall” gain could form part of the proper assessment of damages in such a case. If it be a no transaction case, then the plaintiff was never going to get that property, no matter how competent his solicitor was. He would have bought another similar property, but it is unlikely (unless there were compelling circumstances pointing to the contrary) that the alternative property would also have been lucky enough to secure the same “windfall” gain. Likewise, a loss of bargain is not an appropriate part of the calculation of damages in a no transaction case, for the whole point of such cases is that there should have been no transaction and therefore no bargain.

7.12 It follows that in no transaction cases, the court needs to assess what would have happened in the event that no transaction, in fact, occurred. Of course it is the case, as pointed out, that damages are normally assessed as at the date the wrong was committed unless to follow that rule would be to create an injustice (see for example County Personnel (Employment Agency) Ltd v. Alan R Pulver & Co [1987] 1 W.L.R. 916). Where it is likely that any money would have gone into a similar transaction, then there may well be cases where justice requires that damages be assessed to include developments since the wrong and where it may be reasonable to assess such damages by using the transaction in question as a surrogate for what would have happened the money, had it been available for an alternative similar transaction. However, before so doing, it is necessary for the court to be satisfied that the use of the instant transaction, as a surrogate for what would have happened the relevant monies in the event that there was no transaction, is an appropriate basis for the assessment of damages.

104. In Kelleher v O’Connor [2010] IEHC 313, Clarke J said at paragraph 6.2 that:

“In order, therefore, for there to be a causal connection between any negligence on the part of Mr. O’Connor and the undoubted consequences which the Kellehers suffered, it is necessary that that negligence should be such as would lead to the inference that, had it not been for that negligence, the Kellehers would have become aware of the relevant problems in advance of closing and could, therefore, have legitimately pulled out of the contract.”

105. He said at paragraph 8.1 that:

“...On the evidence, I am satisfied that the Kellehers would not have gone ahead with the sale in all the circumstances. It follows that this is a “no transaction” case, such as I had to analyse in ACC v Johnston (Unreported, High Court, Clarke J, 1st June, 2010)...”

106. Clarke J said at paragraphs 9.1 – 9.10 of Kelleher v O’Connor, under the heading “The Law on Damages”:

“9.1. It is important to start with the fundamental proposition that, in almost all cases, the principle function of the award of damages is to seek to put the party concerned back into the position in which they would have been had the relevant wrongdoing not occurred. The differences which are identified in the authorities concerning the proper approach to the calculation of damages for a tort, on the one hand or, a breach of contract on the other hand stem from that fundamental proposition. In the case of a tort, the court has to attempt to put the plaintiff back into the position in which that plaintiff would have been had the tort not occurred at all. It is the pre-incident position that the court must look at as a starting point. On the other hand, the wrongdoing which a party sued successfully for breach of contract is liable for, is the failure of that party to comply with its contractual obligations. The position which the court must look at as a starting point is, therefore, the position that should have been obtained post-incident in the sense that the court is looking at what would have been the situation had the contract been complied with in accordance with its terms. The court is not, therefore, concerned directly with the position of the aggrieved party pre-contract, but rather what the position of that party post contract would and should have been had the contract been complied with.

9.2. However, it is important in making that distinction to note that it is necessary to analyse the contractual obligations which have been breached before going on to ascertain the proper approach to the calculation of damages. As pointed out in ACC v.

Johnston, a solicitor does not contract with her client that she will procure for that client a successful conclusion of a conveyancing transaction. Rather, the solicitor contracts with her client that she will carry out a proper professional job on the conveyancing transaction. Depending on the circumstances, that obligation might lead to the solicitor advising the relevant client not to proceed at all, or only to proceed provided certain assurances or terms can be imposed or the like.

9.3. While it is true to say that a solicitor can be sued in breach of contract or in negligence, it does not seem to me that it is likely, at least in the majority of cases that there will be any practical difference between the approach to damages in either case. If the proper conduct of the conveyancing transaction by the solicitor concerned ought to have led the relevant client not to go ahead with the transaction at all, then the proper approach of damages in such a case is to look at what would have happened had there been no completed transaction.

…

9.7. What Joyce v. Bowman Law makes clear is that there may be intermediate cases in between what I might term a pure “no transaction” case, on the one hand, and a case where it is clear that, in the absence of negligence, a proper and complete conveyance could have taken place. It might perhaps be useful to term such a case as a “completed transaction” case. It is important to note why that is the case. In order to analyse the consequences of negligence on the part of a solicitor (and this analysis applies equally to a breach of contract on the part of the solicitor stemming from the same facts), it is necessary to look at what would have happened had the solicitor not been negligent, no transaction would have taken place. At the other end of the spectrum, it may be clear that had the solicitor not been negligent, the solicitor’s client might have obtained good title to the relevant property. For example, if, due to an error in drafting the relevant deed of assurance, the deed does not actually pass title to the solicitor’s purchaser client, then it may well be possible to argue that, had the deed been properly drafted, the client would have obtained proper title. In many such cases it might well, of course, be possible to rectify matters so that title could still be procured with the only damages flowing being whatever costs might be associated with remedying the matter. However, it is possible to envisage circumstances where, for example by virtue of intervening events, it is no longer possible to remedy certain matters. In those circumstances, the proper approach to the calculation of damages is to look at what would have happened had the conveyancing transaction been properly conducted. On the hypothesis with which I am dealing the purchaser client would have obtained proper title to the property and in such a case it is appropriate to assess damages on that basis.

9.8. However, there may well be intermediate cases where it is not possible to say for certain what would have happened. Joyce v. Bowman Law is one such case. There was an adverse clause in the contract. The licensed conveyancer should have noticed it, advised his client about it, and, almost certainly, raised it with the vendor. What would have happened next was not absolutely clear. The vendor might not have been willing to renegotiate the terms of the contract, in which case there might well have been “no transaction”. On the other hand, the vendor might have been willing to renegotiate the term. In those circumstances there would have been a “completed transaction”. In intermediate cases the court is faced with the situation where there is a hypothetical event which never occurred precisely because the conveyancer concerned was negligent, but where the court has to make some assessment as to the likelihood or otherwise of the conveyancer having been able to successfully deal with the problem had it been identified at the time. In all those circumstances the proper approach of the court for reasons similar to those identified in Phillip v. Ryan [2004] 4 IR 241, is to assess the possibilities, form a view as to the likelihood or otherwise of each of them occurring and award damages, having regard to the proper calculation on a “no transaction” basis, the proper calculation on a “completed transaction” basis and the likelihood or otherwise of either of those eventualities having proved to be the case in the hypothetical circumstances that the problem had been identified and an attempt had been made to negotiate a solution to it.

9.9. Joyce v. Bowman Law was an intermediate case. For those reasons it was entirely appropriate for the Court to assess damages on the basis of a completed transaction but reduced appropriately for a weighting derived from the risk that it would not have been possible to secure a successful conclusion even had the problem, been identified. In one sense such a case may be viewed as one of a loss of opportunity. The consequence of the solicitor’s negligence was that there was no opportunity to seek to negotiate a solution to the adverse option clause. There was no certainty that, even had the problem been identified, it would have been possible to achieve that end. However, it was possible. The client lost the chance of doing it due to the licensed conveyancer’s negligence. The measure of those damages was properly viewed as being a reduced version of the full loss of bargain for there was no certainty that the bargain could have been gained, but the relevant plaintiff had lost the opportunity of seeking to gain the bargain concerned.

9.10. I am, therefore, satisfied that the overall approach which the court should adopt in cases of solicitors negligence in the conveyancing field is to first identify whether, on the evidence, it proper to regard the case as a “no transaction case” case where in the absence of solicitors negligence the transaction simply would not have gone ahead, a “complete transaction” case, where in the absence of solicitors negligence a successful

conclusion to the transaction would have occurred or an intermediate case. Where there is no significant difference in the calculation of the damages under either heading, it may not make much difference. Where, however, as was undoubtedly the case in Joyce v.

Bowman Law (or in other such cases where there is a loss of bargain involved or the relevant property is of particular value to the purchaser), there is a significant difference in the proper approach as and between the two cases, the court, in an intermediate case, must take a view on how likely it was that the problem concerned could have been solved and assess damages somewhere between the “no transaction” value and the “completed transaction” value, having regard to the likelihood that a successful conclusion could have been reached in the event that the solicitor had not been negligent.

107. In Rosbeg Partners v LK Shields [2018] IESC 23, O’Donnell J said at paragraph 9:

“[9]. It is not disputed that the defendant was negligent in failing to secure the registration of the plaintiff’s title. There was therefore, in colloquial terms, a title problem.

It is important to identify clearly the problem, such as it was. There are many cases of solicitors’ negligence in conveyancing transactions which can result in a permanent title defect which is not capable of being remedied. In such a case, a client may have expended monies and obtained a title which is effectively worthless. This can lead to substantial damages, particularly if the market is rising. That however is not the case here. It was common case that the problem here was a failure to take certain steps in any reasonable time scale. But the transactional steps which were left undone, were always capable of being carried out and were eventually completed (by other solicitors retained by the plaintiff) when the problem came to light. Indeed it was agreed by the conveyancing experts who gave evidence that the state of the documentary title as of 2007 did not prevent Unit 520 from being sold. It would have been possible to offer a contract with a special condition covering that portion of the title and addressing the question of the registration of the portion of folio 23011F, providing perhaps that such a registration would be effected by the closing date. The problem, though real, was curable, and even while it existed was not such as to preclude the possibility of selling the property to a willing purchaser, and in a rapidly rising market in particular it is not difficult to imagine such a transaction.

108. O’Donnell J went on at paragraph 35 to say:

“[35] It is necessary to return to the starting point and observe that the nature of the negligence here was a failure to do something which could be done, and was eventually done. If the defendant’s negligence had been to advise the plaintiff to accept a defective title, the damage would be the difference between the price paid and the market value with the defective title (and in some cases the property may be worthless if the title problem is fatal). But where the negligence is failing to do something which can yet be done, then, at least prima facie, the measure of damages, is first, the cost of substitute performance of the duty, and second, any foreseeable loss in value caused by the delay in doing so. If the market is static or rising, it may be that the defendant escapes without any liability for damages under this latter heading, but as here the market is falling, then the plaintiff is entitled to recover the difference in value of the property between the date at which the works ought to have been done, which would have been done, which would have allowed for a sale, and the point at which that problem could reasonably have been remedied, (assuming that it can be established that the plaintiff intended to sell, and was deprived of a sale by the defect). At that later point, the innocent plaintiff has been put back in the position they ought to have been in had the defendant performed its duty. It may often be appropriate in such circumstances to take into account any difficulties in obtaining a value at that later point, and in some cases it may be permissible to take into account that the plaintiff may have lost a special purchaser, if indeed that was the case.”

109. Clarke J stated at paragraph 9.10 of his judgment in Kelleher v O’Connor that the overall approach which the court should adopt in cases of solicitors negligence in the conveyancing field is to first identify whether it is a “no transaction case”, a “completed transaction” or an “intermediate case”.

110. It was submitted on behalf of Ms. O’Brien that the present case has features of both the “no transaction” and “completed transaction” type cases. It was submitted that Ms. O’Brien, if she had been aware of the difficulty in obtaining clear and unburdened title, known of the many and ongoing litigation and the associated legal costs and risks, would not have entered into the agreement to sell the Clontarf premises and purchase the Glenbrian property. On this basis, it was submitted that damages should be assessed in order to put Ms. O’Brien back into the position she would have been in if the transaction had not occurred but this is not possible due to the nature of the transactions. The features which were identified as reflecting the “completed transaction” type case is that Ms. O’Brien would have obtained a clear and unencumbered title in No. 3 Glenbrian Hall but for the negligence of the second-named defendant but that title can be rectified.

111. It was submitted on behalf of the second-named defendant that this is not a “no transaction” case and is in fact a “completed transaction” case. The basis upon which it was submitted that it is not a no transaction is that the purchase of No. 3 Glenbrian Hall was inextricably linked with the sale of 28 Clontarf Road, Ms. O’Brien received €125,000, and Ms. O’Brien had already entered a binding agreement to purchase No. 3 Glenbrian Hall even before she engaged Mr. Plunkett.

112. It seems to me that the case is closer to a “completed transaction” case in circumstances where the title issues which subsequently emerged could be rectified. While it was submitted that Ms. O’Brien would not have completed the transaction if she had known that the title deeds were not being provided, there was no clear evidence given by Ms. O’Brien at the hearing that she would not have completed the transaction if Mr. Plunkett had informed her that the title deeds were not available but that he could accept an undertaking and that this was not a very unusual way to proceed. She was also clearly under pressure to obtain a sum of money to buy out her former partner’s interest in 28 Clontarf Road. Thus, I do not believe that I could safely conclude that if Mr. Plunkett had told Ms. O’Brien that he proposed closing on the basis of an undertaking and that this, while not the norm, is not an unusual conveyancing practice, she would not have gone ahead with the transactions. Thus, the approach of O’Donnell J in Rosbeg Partners is appropriate. He said at paragraph 35:

“...But where the negligence is failing to do something which can yet be done, then, at least prima facie, the measure of damages, is first, the cost of substitute performance of the duty, and second, any foreseeable loss in value caused by the delay in doing so. If the market is static or rising, it may be that the defendant escapes without any liability for damages under this latter heading, but as here the market is falling, then the plaintiff is entitled to recover the difference in value of the property between the date at which the works ought to have been done, which would have been done, which would have allowed for a sale, and the point at which that problem could reasonably have been remedied, (assuming that it can be established that the plaintiff intended to sell, and was deprived of a sale by the defect)...”

113. The second-named defendant referred to Bacciottini & anor v Gotelee and Goldsmith (A Firm) [2016] EWCA Civ 170. In that case, only the cost of remedying the particular defect was given. At paragraph 56, Davis LJ said that “What determines the outcome of this case in my view is an application, by reference to the facts, of the core principles set out in Livingstone v Rawyards Coal Co (cited above). By reason of the subsequent removal of the restriction the appellants have suffered no loss and there is nothing in respect of which they require to be compensated. That is the nub of it.” I do not read this case as precluding the recovery of other foreseeable losses. Indeed, Davis LJ at paragraph 66 noted “the critical importance of the factual context to the determination of the proper measure of damages to be applied and the need to secure a fair outcome.” An interpretation of Bacciottini which precludes the recovery of other foreseeable losses would, in any event, be inconsistent with Rosbeg Partners.

114. Thus, Ms. O’Brien is entitled to the cost of rectifying the title and of any other foreseeable losses, including, in light of my findings above, a fall in the value of the property. I return to the relevant dates upon which the fall in value must be assessed.

115. Evidence as to value was given on behalf of Ms. O’Brien by Mr. Patrick Sheehan of Independent Valuations Limited. He provided a report dated the 16 th March 2023. In their written submissions, the second-named defendant objected to this report as it was delivered outside of the time permitted by the Court. However, that objection was not pursued at the hearing. Ms. O’Brien (and Mr. Sheehan) also referred to an earlier report, but the author of that report was not called to give evidence and I therefore have not considered that report. In his report, Mr. Sheehan stated that “The property is poorly built with multiple damp issues requiring immediate attention” and “As previously stated no structural survey has been carried out on the property however it must be noted that the property is poorly built with multiple damp issues requiring immediate attention.” He stated that in his opinion the current open market value of the apartment was €350,000.

116. In his oral evidence he stated that “Visibly or nasally it is damp and visibly there is

– I have never seen anything like it, there was water flowing in the carpark and that was taped, just taped up.” He was of the view that the building needs remedial works and that if the property had been “sold privately the purchasers would have sued the developer for remedial works.” He stated that he valued the property on a comparable basis because there are so many sales in the Dublin area that such an approach is appropriate. He explained in his direct evidence that he arrived at his valuation because the property does not have good title and has serious damp issues. He agreed with the valuation of €425,000 given by the valuer called by the second-named defendant, saying “if that property was marketable, had good title and didn’t have damp issues, all day long.”

117. Under cross-examination, he clarified that the property in its current condition is worth €350,000. He stated that the property was not suitable for bank lending due to its condition and that he values what he can see and assumes good title. It was correctly put to him that he had said in his direct evidence that there was an issue on title and this reflected on the value. He clarified that he was assuming good title though he had not stated that in his direct evidence (he did however state it in his report) and said that it could be worth less if there is a serious title issue. He accepted that he did not include any comparables or references to the amenities in the area. He also accepted that the two valuations of €350,000 and €425,000 are not within the industry’s acceptable tolerances and therefore one of the valuations is wrong. He also accepted that valuations are subjective.

118. Under cross-examination he also referred to another apartment in the development that sold in 2010 for €283,000 and then sold again in 2015 for €340,000. He felt this was a small increase. He deduced from this that there is a problem in the apartments because a house in the same development increased by 37% in the four years between 2017 and 2021. He accepted that the market went up substantially between 2015 and the date of the hearing but did not accept that the apartment would have gone up in value to the same extent because “In the apartment block there is an issue, in the house, the lodge there wasn’t. So that [the lodge] shows normal, that tracks the market normally. What I am saying is this apartment and this block has a problem and there is a serious problem in it.” In reply to a question from the Court he said that even adopting the defendants’ valuers’ valuation it indicated that there was something wrong with the apartment because an increase from €340,000 to €425,000 is only a 20% increase whereas the lodge in the same period went up by 37%. He said if the property was in good condition it would be worth €500,000 or €550,000.

119. Evidence as to value was given on behalf of the second-named defendant by Mr. John Hamill of Hamill Estate Agents. He also provided a report dated the 11 th July 2023. He stated in his report that the valuation was made “in accordance with the appropriate sections of European Valuation Standards (Blue Book) of the European Group of Valuers Association TEGoVA and has been undertaken by a Valuer, qualified for the purpose of the valuation.” He stated that “Although I have not carried out a structural survey of the property after conducting the inspection the property appears to be in reasonable condition throughout.” He then stated that “In our opinion the indicative Current Market Capital Value of the property as described herein can be fairly accessed (sic) in the region of €425,000...”

120. In evidence he disagreed with the figure of €350,000 given by Mr. Sheehan and said that he did not understand why Mr. Sheehan was discounting the value by reference to works without the support of a structural surveyor. He went on to say that he believed that if this apartment was to go to market it would achieve in the region of €425,000 and if a surveyor was brought in after that and identified that there was damage which would cost a certain amount to remediate, they would then renegotiate with the buyer.

121. He expanded on this under cross-examination and explained that his approach to valuation is that a price is agreed between the vendor and the prospective purchaser, a surveyor then assesses the property and, if he discovers that there is a problem which requires work, a value is put on that work and there is then a renegotiation to arrive at the final price. In re-examination, he confirmed that in conducting a blue book valuation, he does not estimate repairs at all. The Court teased out the question of how the need for works is dealt with in a valuation.

Mr. Hamill confirmed that his approach is that when he is putting a value on a property he is assessing the value that the property will achieve everything being right. His opinion was that the property would be put to market, “see what it achieves, cost it the value and take that off or agree it whatever between the clients.” When he was asked whether this means that even where he knows that some works will have to be carried out he does not factor that into the value that he puts on the property he said “It really depends where you value.

Do you value to go to market or do you value it for the purpose of trying to agree a figure with clients or whatever, right. When we put it on the market, we advertise it. If, for instance, we put a property on the market and we know that the roof is structurally not good, we might get an opinion from a surveyor to say “we are putting this on at 500 grand, we believe it is between 5 and 550, that roof needs to be repaired or whatever” and we get an indication of costs. It is case by case, it is difficult to be scientific about every development, you know.” He confirmed that his value of €425,000 does not take account of the possibility of deficits or the need for remedial works and is the price all being good with the property.

He said that “I want to be very clear about it. I believe it has a minimum value of 425. I believe it would probably trade in excess of on the open market. If it was a case that it required upgrade or repairs to the value of 25,000, you could take that off right. That would be the figure off the actual value. So, if you had a brand new development there and you sold an apartment for 500,000 or 550,000, there would be no deficits, there would be no nothing, that is an actual value, easier to value something.” He then said “So, I would say you take it off at the end, you know, I believe that type of product, apartment, quality in the vicinity is worth 425 all day long.” The Court asked him whether a smell of damp factors into the value he puts on a property and he answered “Yeah, so there would be a case of if you have two apartments and one – let us call it turn key and it is presented well versus another one and often it is the case a rental property versus and owner/occupier property.

You go into the other property and it is tired or it needs upgrade. You would factor an element of that into it, whereby you would say “well, you know, if it was in perfect condition it might achieve X, whereas it needs a lick of paint or a new kitchen, we will market a bit lower and see where it goes.” He then referred to a number of comparables in the area.

122. He also fundamentally disagreed with Mr. Sheehan’s impression of No. 3 Glenbrian Hall. When Mr. Sheehan’s evidence as to the condition of the apartment was put to him in cross-examination, he said that “what I saw was different to what he saw obviously because when I was in the apartment, I didn’t see any damage, water damage or anything of the nature.” He was also clear that he did not take into account the ingress of water into the car park. This appears to have been for two reasons. Firstly, from his point of view it was minor and nothing unusual and nothing that he had not seen in many other carparks. He said Ms. O’Brien “pointed to a bit of water coming through, a bit of water ingress coming through which I have seen on multiple occasions in carparks, standard enough”. He also said that he “was shown a bit of a dribble of water coming through some bit of cement”. This was not put to Mr. Sheehan (or indeed Ms. Plunkett). Secondly, he said that he did not include it because he was valuing the apartment and not the building or block. He later expanded on this and indicated that he did not know the extent of the problem and accepted that it could lead to a levy on an apartment to upgrade the premises.

123. He also did not accept the significance that Mr. Sheehan attached to there having been very few sales of apartments in the block. He said it was a small development which would not have a high turnover and one would also have to know how many of the apartments are individual owners.

124. I found the evidence from the valuers to be unimpressive.

125. Mr. Sheehan in his report purported to give evidence which is outside his area of expertise, stating that “The property is poorly built...” Of course Mr. Sheehan is able and entitled to give evidence of what he observed on inspection but he is not qualified to give evidence as to the structural causes of what he observed. This is particularly so where he states in his report that no structural survey had been carried out.

126. There is no reference in his report to the amenities in the area. When this was put to him he explained that “There is no point being near bus stops if you have an apartment which is leaking with damp and a carpark that has got open water flowing over wires”. This is a pithy response which highlights the point that Mr. Sheehan was making about the impact of the condition of the apartment on its value, but what it suggests is that he did not even include the amenities in his consideration of the value. With respect, the logic of this is that he would place the same value on a damp apartment with no surrounding amenities as the same damp apartment with plentiful local amenities.

127. There are also two aspects of his reasoning, as he explained it at the hearing, which are difficult to follow. He concluded that there is a problem with the apartments in the development because a different apartment to the one in this case one of them only increased in value by 20% (€283,000 to €340,000) in the five years between 2010 and 2015 whereas a house in the development went up by 37% in the four years between 2017 and 2021. Apart from the fact that this is comparing a house and an apartment, this is not comparing like with like in that it is comparing property inflation for two completely different periods. Secondly, he relies on the fact that this other apartment only increased by 20% between 2010 and 2015 to conclude that there must be a problem with the apartment block and the apartments in it. Thus, the logic of his position is that the defective condition issue applies to the apartment block and therefore all of the apartments. As he currently values No. 3 Glenbrian Hall at €350,000 this means that the value of the apartments has only increased by 3% (€340,000 to €350,000) in the ten years since 2015.

128. He referred to the fact that there have been very few sales of apartments in the development and deduces from this that there is a problem with them. That, of course, is a possibility, but he does not appear to allow for or take account of the possibility that the low number of sales is due to the small size of the development (sixteen apartments) and that a significant percentage of the apartments are still owned by the developers.

129. Finally, Mr. Sheehan said that were it nor for the defective condition of the apartment it would easily sell for €425,000 (he initially said it would sell for this price if there were no title issues and it did not have damp issues but he subsequently said his valuation assumes good title). In fact he later said that if the property was in good condition it would be worth €500,000 – €550,000. In that context, he gave no explanation for his reduction from €425,000 or €500,000-€550,000 to €350,000. The only information available to the court about the cost of remedial works is that they would cost €50,000. I make no finding in relation to this amount but the point is that Mr. Sheehan gives no reasoning as to why he estimates the apartment to be worth at least €75,000 (or between

€150,000 and €200,000) less than what it would be worth if it was in good condition and did not need these works.

130. He was cross-examined and criticised for not referring to comparables in his report. However, Mr. Hamill does not do so either.

131. Turning to the valuer called by the second-named defendant, it appears to me that Mr. Hamill did not understand the exercise that the Court had to engage in. The Court’s role is to assess what price the vendor will get, not what price the apartment should be put on the market at or at what price it might go sale agreed. That, of course, may be of key importance to an estate agent in the marketing and sale process, but ultimately the Court requires to know what price the vendor will ultimately get. It is quite clear that the value of €425,000 is the price that Mr. Hamill believes the apartment will go sale agreed at or that will be achieved if there is nothing wrong with the property. For example, he said that he believed that if this apartment was to go to market it would achieve at a minimum in the region of €425,000 and if a surveyor was brought in after that and said that there was damage which would cost a certain amount to remediate, they would then renegotiate with the buyer. He also said that when assessing value he is assessing what the property will achieve “everything being right”. I have already held that the apartment does require work. Therefore the value given by Mr. Hamill, which is the price that would be agreed if everything was right, is not in fact the value in the sense of the price which would ultimately be achieved. I understand his point that it is difficult to know how to discount the value of a property which requires work without having an estimate from an appropriate expert.

132. There is also a degree of inconsistency in Mr. Hamill’s evidence. In most of his evidence he was quite clear that his approach (and therefore what he believed to be the correct approach) is that the impact of any defect does not affect the value at which the property is put on the market. However, in response to a question from the Court as to whether a smell of damp factors into the value he puts on a property he said that it does. He said that where there are two properties, one is turn-key and presented well and the other is tired and needs an upgrade, you would factor an element of that into the valuation.

133. He says that he did not take account of the water in the car park. As noted above, he gave two reasons for this. Firstly, he was of the view that it was minor and not unusual and secondly, that he was valuing the apartment and not the building or the block. The second reason is incomprehensible to me. Mr. Hamill later accepted that a problem outside the apartment could lead to a levy on an apartment to upgrade the premises. If there is a problem with the building in which an apartment is located then it can not simply be ignored because it is not within the four walls of the particular apartment, particularly where it might lead to a levy on the individual apartment.

134. There is a clear dispute between Mr. Hamill’s impression of the property and Mr. Sheehan’s impression. Mr. Hamill says in his report that the apartment was in “reasonable condition throughout” and in his evidence he said that he did not see any “damage, water damage or anything of the nature.” Thus, leaving aside his general approach which I have just discussed, it is clear that he did not take any account of dampness or mould. I have already found that the apartment does suffer from these problems and, as discussed above, these were not contested by the defendants (other than through Mr. Sheehan’s evidence.

135. The burden of proof is on the plaintiff. In circumstances where the valuation evidence from both sides is equally unimpressive and the burden of proof is on the plaintiff I can not accept the plaintiff’s valuer’s evidence over that of the second-named defendant’s. I am therefore not satisfied that Ms. O’Brien has established that the current valuation is €350,000. There is a separate issue about whether such a diminution in value would be recoverable where Mr. Sheehan puts it down to the condition of the property but I do not have to resolve that.

136. While I have found Mr. Hamill’s evidence to be unimpressive, it nonetheless seems to me that I could proceed on the basis of his valuation of €425,000 in circumstances where Mr. Sheehan also agreed with that price all things being good. For reasons which I discuss in a moment, I do not need to make a finding on this, but for the purpose of discussion I will proceed on the basis of that being the value. I should say two things about this valuation. Firstly, for the reasons set out above, there may have to be negotiations with a purchaser in respect of the cost of repairs. However, there in circumstances where there was no evidence properly before me as to such cost, I can not factor in an appropriate reduction, even if a diminution in value due to the condition is recoverable. Secondly, Mr. Hamill was quite clear that his valuation is not based on any defective condition. The difference between €450,000 and €425,000 is therefore purely down to the passage of time.

137. It was submitted on behalf of the second-named defendant that negligence on the part of the second-named defendant did not have the consequence of Ms. O’Brien purchasing the property. This is because Ms. O’Brien had already entered into a binding agreement to purchase the property in conjunction with a sale of 28 Clontarf Road when she first attended the second-named defendant and the undertaking obtained was not unusual given the situation where Mr. Plunkett was advised that a lease to the vendor was in the process of registration and stamping. This submission that Mr. Plunkett accepted an undertaking and this was entirely the norm seems to me to suggest that Mr. Plunkett was not negligent. He has already conceded liability and the hearing proceeded on that basis.

138. Taking Mr. Hamill’s valuation of €425,000, the difference in value between when Ms. O’Brien bought the apartment and when she was able to sell it (the date of the hearing) is €25,000. However, the date of purchase is not the correct starting point. The relevant date is when Ms. O’Brien decided that she wished to sell and move, or more properly, when she took steps to sell and move and was unable to do so. The damp and mould, which are the reasons which caused her to decide to sell, emerged in or around December 2007/January 2008. She consulted a builder sometime after that. However, the first concrete step she took was attending her solicitor in April 2008. She would not have sold the apartment before then. It is the value of the property that she would have obtained if she had been able to get her deeds and sell at that point or shortly thereafter that is the relevant value for the purpose of assessing her damage in not being able to sell until 2023. Her damage is the difference between that value and the valuation in 2023. Unfortunately, there is no evidence as to the value of the property in April 2008, i.e. what Ms. O’Brien could have sold for at that stage. It is, of course, only a few months after she had purchased the property and, on one view, it might not have changed much from €450,000. However, that is also a period when we know property prices were falling. Furthermore, Mr. Sheehan referred to a comparable apartment in the complex selling for as little as €283,000 in 2010. If, for example, the value in April/May 2008 was €500,000, Ms. O’Brien’s loss would be €150,000. If, on the other hand, the value was €400,000, she would not have suffered any loss on Mr. Hamill’s valuation, and Mr. Sheehan’s valuation when the condition of the property is disregarded. In all of those circumstances, in the absence of a valuation for April 2008 or in the short months after that, Ms. O’Brien has not established that she has suffered a loss in value between when she was going to sell and the date of the hearing.

COSTS OF THE TRUSTEE ACT APPLICATION

139. In his opening, Senior Counsel for Ms. O’Brien outlined that part of her claim is that she is entitled to the costs of the proceedings in which she became embroiled as a result of the defendants’ negligence and breach of contract. He said that these are the injunction proceedings, two sets of proceedings brought by the management company including one in respect of outstanding management fees, and the application pursuant to the Trustee Act. However, in closing submissions, he stated that Ms. O’Brien was not maintaining the claim for the costs of the injunction proceedings and the proceedings brought by the management company. Therefore, the only claim is in respect of the costs of the application under the Trustee Act.

140. In relation to the costs of the Trustee Act application, I am satisfied that these were necessitated by the negligence and breach of contract of the defendants and fall within the species of damages identified in Rosbeg Partners. It was pointed out on behalf of Ms. O’Donnell that this application was directed at rectifying the title of the entire development rather than simply Ms. O’Brien’s title and, indeed, that Ms. O’Donnell was not a party to that application. That may be so, but it was the step which was eventually identified as being necessary and appropriate to rectify Ms. O’Brien’s title.

141. It seems to me that the real issue in relation to the costs of the Trustee Act application is whether Ms. O’Brien is precluded from seeking or obtaining them because Reynolds J dealt with the question of costs when making her Order pursuant to the Act.

142. In this regard, it was submitted on behalf of Ms. O’Donnell that Ms. O’Brien’s claim seeks to relitigate an issue that was finally determined in separate proceedings to which she, Ms. O’Donnell, was not a party. It is noted that the Order of Reynolds J of the 4 th February 2020 records that Ms. O’Brien was a notice party to the application, that she was supportive of it, and the Court made “no order as to costs”. The second-named defendant adopted Ms. O’Donnell’s submissions and also argued that there was no need for Ms. O’Brien to have been involved in that application.

143. The issue can not be res judicata in circumstances where neither of the defendants to these proceedings were a party to that application. Furthermore, while Reynolds J noted that Ms. O’Brien was a notice party and made no Order as to costs, there is no evidence that Ms. O’Brien sought her costs, and it seems to be the case that she did not. The issue is in fact whether Ms. O’Brien is precluded on the basis of the rule in Henderson v Henderson from obtaining the amount of the costs. The rule precludes a party from raising a point in subsequent proceedings which could have been raised in earlier proceedings. In Johnson v Gore-Wood [2002] 2 AC 1 Lord Bingham said at page 31:

“Henderson v. Henderson abuse of process, as now understood although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same, that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on

the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.

I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive. This is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

144. The rule in Henderson v Henderson does not operate as an absolute bar. Hogan J said in Culkin v Sligo County Council & Ors [2017] IECA 104 that:

“The general approach of the courts to the issue of a multiplicity of proceedings has been, broadly speaking, to adopt a merits-based approach. In other words, doctrines designed to prevent a multiplicity of proceedings and thereby ensuring the administration of justice is not abused – such as the rule in Henderson v Henderson – are applied flexibly and not by reference to some inexorable and unforgiving logic. The courts have generally fought shy of adopting an ex ante, automatic exclusion of any second set of proceedings and much will depend upon whether the second proceedings raise questions which might sensibly and reasonably have been raised in the first proceedings.”

145. In Mitchell v Ireland [2007] IESC 11, Kearns J said at page 19:

“...it is equally clear on the authorities that the rule in Henderson v Henderson must not be applied in a rigid or mechanical manner so as to deprive the court of any discretion to hold otherwise in an appropriate case...”

146. I am satisfied that the rule should not operate to preclude Ms. O’Brien from seeking the amount of the costs of the Trustee Act application. Firstly, the parties are different. That is not a bar on the operation of the rule but is a relevant factor. Secondly, the issues are sufficiently different. What is at issue in the current proceedings is whether the costs of those proceedings are a recoverable loss arising from the breaches of the defendants. Different considerations therefore apply in these proceedings than in the application before Reynolds J.

147. The question is, therefore, whether Ms. O’Brien can recover those losses. I am not persuaded by the point made on behalf of Ms. O’Donnell that it was not Ms. O’Brien’s title per se that was perfected by the application but the management company’s title and that

Ms. O’Donnell was in the same position as all the other long leaseholders until the management company sorted out its title issue. It was put as “Ms. O’Donnell was as much a victim of the bad title, when she purchased, as Ms. O’Brien was when she was buying in”. That may be so, but Ms. O’Donnell contracted to give title to Ms. O’Brien and did not do so and the second-named defendant did not ensure that it was done. In those circumstances, to the extent that costs were properly incurred in finally getting that title, it can not be Ms. O’Brien who is at that expense.

148. Nonetheless, the amount of the costs can only be recoverable if the costs were properly incurred. Both sets of defendants made the point that Ms. O’Brien did not need to take part in the Trustee Act application and therefore the costs of doing so were not necessarily or properly incurred (from the point of view of a claim for damages). I agree with that to a limited extent. However, it disregards the long history and the overall circumstances of the dispute. In my view, it was reasonable that Ms. O’Brien would have taken part in order to ensure that her interests were protected and that there were no further difficulties with ensuring that she got the title which she should have received in 2007.

149. I am satisfied that she is entitled to an award of damages in the amount of her costs of the Trustee Act application. The amount has been agreed at €56,580.

AGGRAVATED DAMAGES

150. Ms. O’Brien’s claim for aggravated damages was only made in express terms at the hearing, though there was reference to aggravating factors in the written submissions. This is not a bar to the claim as aggravated damages are compensatory in nature. It is, however, noteworthy that it was expressly raised so late in the day despite detailed particulars of loss being given.

151. I am not satisfied that Ms. O’Brien is entitled to aggravated damages.

152. The basis for the claim for such damages was described in the opening as arising from “the full gamut of the events that unfolded”. In Ms. O’Brien’s written submissions, (paragraphs 3.5 and 3.6) the aggravating factors were identified as being that (i) Ms. O’Donnell instructed her solicitors “to alter and remove the root of title as per contract and substitute a new lease to her financial gain, and the ongoing and aggravating prejudice of Ms. O’Brien”, and (ii) Mr. Plunkett did not obtain an undertaking to furnish the deeds and that he gave misleading evidence when he told Birmingham J that he had in his possession an undertaking in respect of the deeds. The first of these can only relate to Ms. O’Donnell and the second can only relate to Mr. Plunkett. At paragraph 5.6 it is submitted “The conduct of the Defendants has been egregious and aggravating in the extreme. The Plaintiff and the Court have been misled, with the Plaintiff having been portrayed as other than honest. She has suffered extraordinary delay and distress having been obliged to participate in multiple sets of proceedings...” However, at the hearing particular emphasis was placed on the period after January 2017, i.e., after receipt of conveyancing counsel’s Opinion.

153. I am not satisfied that Ms. O’Brien has discharged the burden of proof that she is entitled to aggravated damages on either of the bases in respect of the pre-2017 matters.

154. I am not satisfied that Ms. O’Brien has established that Ms. O’Donnell dishonestly “altered and removed the root of title...to her financial gain.” While fraud is not pleaded, that is part of the substance of the claim against Ms. O’Donnell in respect of her intermeddling with Ms. O’Brien’s title deeds. The core of Ms. O’Brien’s claim is as follows. When the new solicitors took over from the Law Society-appointed firm the file and title documents were transferred to them. At that stage, all that was required to be done to rectify the title was for this lease to be stamped and registered. Ms. O’Brien says Ms. O’Donnell and the new firm had no right to do anything with Ms. O’Brien’s title other than to stamp and register the 2000 lease and instead they created a new lease (of the 29 th May 2009) to Ms. O’Donnell and changed the date on the deed of assignment from Ms. O’Donnell to Ms. O’Brien from 2007 to 2009 (which itself was flawed because it did not refer to the 2009 lease).

155. I am satisfied that these steps should not have been taken without consultation with Ms. O’Brien and, indeed, the taking of those steps has undoubtedly caused distrust and a fracture in the relationships. However, Ms. O’Brien has not adduced any sufficient evidence upon which I could conclude that the purpose of these measures was to financially benefit Ms. O’Donnell. The claim that the steps were taken for this purpose was solely dealt with on the basis of assertions of belief by Ms. O’Brien and reference to various pieces of documentation and correspondence.

As no evidence was led by Ms. O’Brien on these matters at the hearing, Ms. O’Donnell was not required to deal with this in evidence. However, it is clear from the transcript of the evidence in the injunction proceedings that the solicitors’ firm have an entirely different account of the purpose of these steps. A partner from that firm said in the injunction proceedings that “The main difficulty that arose was that there had been a number of sub sales of a number of the apartments on the development and there hadn’t been deeds done for each sale on the property.

And specifically in relation to apartment 3 there had been a number of sub sales which were not properly recited in the lease that [Ms. O’Donnell’s then solicitor] had furnished to John Plunkett...What we did was we redrafted that lease... We correctly recited the title as we found it on the files of [Ms. O’Donnell’s former solicitor] and when we had that done we wrote to the Revenue Commissioners...We joined everybody to it to capture every possible interest that could have accrued along the way. We went back to the original vendors, the original owners of the site and we joined in the various parties that had been parties to the various contracts along the line so any possible outstanding interest was captured in the lease to Catherine O’Donnell.

Ms. O’Brien in her submission at the beginning indicated I think that Martin Walsh couldn’t have disposed of his interest because he had a mortgage on the property to Finance Life. That was incorrect. Finance Life was a company on title, it was a pension company and there had been a contract to Finance Life and we joined them in to the deed to make sure every possible interest as per those contracts were captured so Catherine O’Donnell got full title and there was no question of any interest outstanding....John Plunkett based on the original lease that had been given to him had prepared an assignment to Catherine O’Donnell to Janice O’Brien and that assignment was fine, it was only the date of the lease that had to go into it.

So once we had the lease completed we completed the assignment from Catherine O’Donnell to Janice O’Brien...” In all of those circumstances am not satisfied that there is sufficient evidence upon which I can conclude that these steps were taken dishonestly.

156. That, of course, is not the only basis upon which aggravated damages can be awarded. However, where the claim is made on the basis of these steps being taken for financial gain then the claim must be primarily determined by reference to that claim. It is clear that the 2009 lease and assignment were not effective in rectifying Ms. O’Brien’s title but I am not satisfied that Ms. O’Brien has established that these instruments were designed or directed to improperly give Ms. O’Donnell a financial benefit through putting the property in her pension fund (which is the allegation). I am also satisfied that even if these steps had the effect of prolonging the resolution of these matters, in circumstances where I have not been satisfied that they were taken for purposes other than genuine efforts to resolve the difficulty, they are not such as to warrant aggravated damages.

157. In relation to the second, I am not satisfied that Ms. O’Brien has established that Mr. Plunkett misled Birmingham J. It is alleged that Mr. Plunkett misled Birmingham J in two respects: firstly, that he had obtained a written undertaking from Ms. O’Donnell’s solicitors in relation to the title deeds; and secondly that title had been rectified by the lease and assignment of 2009.

158. It does seem to be the case that Mr. Plunkett originally believed, and caused the solicitors who were appointed by the Law Society to believe, that he had obtained a written undertaking. However, it is clear from the transcript of the hearing before Birmingham J in the injunction proceedings that Mr. Plunkett told the judge that he had a verbal undertaking. Birmingham J says in his judgment that Mr. Plunkett “...chose to agree to close on the basis of an undertaking, it appears an oral undertaking, from the solicitor acting for the vendor that the outstanding matters would be addressed and the outstanding documentation furnished.” Furthermore, even if Birmingham J was misled on this point (which I am satisfied he was not), the existence or non-existence of an undertaking was not determinative as he decided that the contracts were two separate contracts and Ms. O’Brien was not entitled to re-take possession of 28 Clontarf Road on the basis that title to No. 3 Glenbrian Hall had not been given.

159. There is no basis for saying that Mr. Plunkett misled Birmingham J to the effect that title had been rectified by the lease and assignment of 2009. Mr. Plunkett was not involved in this. In any event, he did not tell Birmingham J that the title had been rectified. It was put to him on behalf the plaintiffs in those proceedings that the solicitors acting for, inter alia, Ms. O’Donnell, had, after Mr. Plunkett’s involvement in matters, seen problems with the title, rectified them and produced full title with full documentation. All Mr. Plunkett said in response was “I understand that is what happened but I haven’t seen the final title.”

160. There are essentially three limbs to the claim for aggravated damages in respect of the post-2017 period: (i) the defendants’ delay in conceding liability notwithstanding that the Court-appointed conveyancing Counsel had concluded that title was defective in January 2017; (ii) delay in rectifying the title; and (iii) the registration of the lease of the 29th May 2009 contrary to the express views of Ms. O’Brien.

161. In Camiveo v Dunnes Stores [2019] IECA 138, Costello J said:

“125. The leading authority on aggravated and exemplary damages is the decision of the Supreme Court in Conway v INTO [1991] 2 IR 305. The Supreme Court held that compensatory damages may be increased under the heading ‘Aggravated Damages’ by reason of:-

(i) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or

(ii) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

(iii) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff up to and including the trial of the action.”

162. In reality, Ms. O’Brien is relying on (ii) and (iii).

163. In O’Donnell v O’Donnell [2005] IEHC 216, Kelly J addressed the question of aggravated damages where a denial of liability is maintained:

“65. Aggravated damages are compensatory in nature and can be awarded in cases in which the injury to the plaintiff has been aggravated by malice or insolence or arrogance accompanying it.

66. The plaintiff complains that the defendant maintained a denial of liability in these proceedings and that he should be awarded damages in that regard. I am at one with the view of Finnegan P. in Noctor’s case that the maintenance of a denial of liability is not an abuse of the process of the court. A defendant is entitled to require a plaintiff to prove his case. The denial of liability was not maintained up to trial as I have already recorded.

That was a concession which the defendant was not obliged to make.

67. In Noctor’s case Finlay P. approved a statement from the decision of Nourse L.J. in Sutcliffe v. Pressdram Limited [1990] 1 All E.R. 269, where he identified the factors which might lead to an award of aggravated damages. They are:-

“Conduct calculated to deter the plaintiff from proceeding; persistence, by way of a prolonged or hostile cross examination of the plaintiff or in turgid speeches to the jury; a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract further wide publicity; and persecution of the plaintiff by other means”.

68. The President also pointed out that in Cooper v. O’Connell [Supreme Court, 5th June, 1997] it was held that the fact that the defendant had put liability in issue was insufficient to justify an award of aggravated damages.

69. Such being the case there is no scope for an award of aggravated damages by reference to the denial of liability and its being persisted in until March of this year.”

164. Thus, I am not satisfied that the fact that liability was not admitted until shortly before the trial is a proper basis for an award of aggravated damages, even when taken in the context of all that had gone before. It seems to me that in the vast majority of cases the manner in which a “late” admission of liability should be addressed is by an appropriate award of costs. There may be exceptions to this but I do not believe that this is such an exceptional case. The maintenance of the denial of liability must also be seen in the context of some of the claims made by Ms. O’Brien in these and other proceedings. One such claim is the claim that Ms. O’Donnell wrongfully intermeddled in Ms. O’Brien’s title documents by introducing the 2009 lease and assignment. While Ms. O’Brien relies on the fact of intermeddling and does not expressly rely on or plead fraud, fraud has been alleged in correspondence and Ms. O’Brien has made it clear that she believes that Ms. O’Donnell intermeddled in her title to unlawfully gain financial advantage. Another such claim is the relief sought in Ms. O’Brien’s Defence and Counterclaim in the injunction proceedings that both transactions should be unravelled. Thus, I am satisfied that these were complex issues and it could not be said that the maintenance of a denial of liability was, in light of those claims, malicious, insolent or arrogant, or otherwise warrant aggravated damages.

165. Nor am I satisfied that the delay in rectifying the title by way of the Trustee Act application is a basis for an award of aggravated damages. It is worth referring in general terms to the chronology and to the evidence given by Mr. Creed, who was appointed as solicitor for Ms. O’Donnell, Mr. O’Donnell, and the management company in 2018. His evidence was that he was instructed that every step necessary that could be taken to rectify the title should be taken and that this was done in conjunction with the Miller Opinion. That chronology must be seen in the context of the problems between the parties having become intractable and relationships between them having become fractured and fractious.

166. In relation to the chronology, Mr. Creed’s evidence was that he instructed Counsel in March 2018. Mr. Creed then suggested mediation to the other parties. There was engagement from Ms. O’Brien’s solicitor in October and November 2018 in which they asked for documentation as to how the defendant was proposing to complete the process of rectifying the title. That was provided in January 2019. Mr. Creed instructed a conveyancing Senior Counsel and that counsel advised that they needed to take the steps outlined in the Miller Opinion. The Trustee Act application was then issued. The grounding affidavit for that application set out the title difficulties that applied to the whole development (essentially that the owners from whom the developers had purchased the property did not have a power of sale and therefore subsequent leases from the developers/management company to the current owners and onwards were invalid) and the difficulties which applied to No. 3 Glenbrian Hall specifically, including the lease of 29 th May 2009. There was a practical issue in relation to return dates that is not particularly relevant. The relevant Special Summons and grounding affidavit were served in October 2019. On the 27th November 2019, Ms. O’Brien’s solicitor confirmed that having considered the application and the papers provided, they would be supporting the application. The matter was returnable on the 4th February 2019 and Reynolds J made the Order. Mr. Creed confirmed in evidence that a draft Order was provided to all the parties so it would be clear to all involved what was being suggested in relation to the various owners and in relation to the leaseholds and they could have an opportunity to object if they so wished. The Order was then perfected on the 17th February 2020.

167. Mr. Creed’s evidence was that it was then necessary for there to be a first registration in the management company’s name and leases could then be drawn to all the individual owners (including Ms. O’Brien). Mr. Creed said that the application for registration was ready when Covid struck and this caused a delay. The application was rejected by the Property Registration Authority in March 2021. The Property Registration Authority sought significant further information in respect of the individual leaseholders. One issue was that there no lease to Ms. O’Brien evident. According to Mr. Creed this was because the owner on the folio was Ms. O’Brien but the last leasehold interest went to Ms. O’Donnell under the lease of the 29th May 2009. Mr. Creed made the point that this 2009 lease had been identified as part of the Trustee Act application and Ms. O’Brien had not objected. Mr. Creed said that following the rejection by the PRAI he then wrote to Ms. O’Brien’s solicitor in April 2021 to ask them for a copy of the lease (this seems to be the lease of the 29th May 2009 – the 7th June 2016 is referred to in correspondence but this seems to be a date of registration) and Ms. O’Brien’s solicitor responded with an allegation of fraud. They said “In regard to the lease of the 7th June 2016, this lease as construed by [Ms. O’Donnell’s then solicitors] constituted a fraud on the Revenue to benefit the lessee, an exemption for CGT and the benefit of a tax credit for the creation of a pension scheme, details of which have been registered with Finance Life Ltd in the Companies Office. Our client cannot be a party to a fraud and shall never accept this lease in these circumstances.” According to Mr. Creed this was the first time that an allegation of fraud was made.

168. A further application for first registration was made in May 2021 and was rejected in August 2021. In November 2021, Ms. O’Brien’s solicitor made clear that they wanted there to be no reference whatsoever to the 2009 lease and assignment in the title or the folio.

169. A further application for first registration was then made in November 2021 and the Property Registration Authority, having raised some queries in the meantime which were dealt with by Mr. Creed, acceded to that application in the name of the management company on the 4th July 2022. The PRA issued a certified copy folio which reflected the terms and subject to the exact burdens as were contained in the Order of Reynolds J. Thus, at this point, the parties were in a position to perfect Ms. O’Brien’s title. Mr Creed’s evidence was that Senior Counsel drafted a lease to Ms. O’Brien and he sent a copy of the lease to Ms. O’Brien’s solicitor on the 14 th July 2022. Ms. O’Brien’s solicitor raised some queries and an amended lease was provided to him on the 17th July 2022. Mr. Creed then sought to interact with Ms. O’Brien’s solicitor between July and December 2022. On the

21st December 2022, Ms. O’Brien’s solicitor replied to again allege that a fraud had been committed. According to Mr. Creed, Ms. O’Brien’s conveyancing expert confirmed on the 27th February 2023 that the requirements set out in the Miller Opinion had been complied with. Ms. O’Donnell’s conveyancing expert also confirmed that they had been complied with but raised a separate issue about the lease of the 29 th May 2009. Thus, there remained an issue about reference being made to the 2009 lease and assignment on the folio. I come back to this.

170. In my view, while a period of over four years passed between the date that Mr. Creed was retained and the achievement of registration, this chronology makes clear that there was no delay on the part of Mr. Creed. He says that he was, and it must be presumed, acting on instructions. Thus, I do not believe that this passage of time warrants aggravated damages, particularly having regard to the fact that I have awarded general damages for mental distress during this period.

171. On the 22nd December 2022, Ms. O’Brien’s solicitors formally requested that an application be made to court to have the 2009 lease removed as a burden from the folio. According to Mr. Creed, they had discussions with the PRA who explained that an application would have to be made to remove the lease of the 29 th May 2009 from the folio and the new lease would go directly from the management company to Ms. O’Brien. Mr. Creed made the point that the lease of the 29 th May 2009 was part of the Trustee Act application and the reason they had given all of the documentation to Ms. O’Brien’s solicitor in the context of that application was so they could object or raise any issues but instead Ms. O’Brien had supported the application. It is unclear to me why this issue was not addressed prior to the application for registration or prior to registration itself. However, once Ms. O’Brien’s solicitor requested that an application be made to have it removed from the folio, that application was made.

172. I therefore do not award any sum in respect of aggravated damages.

CONCLUSION

173. I will make an award of €36,000 for general damages for mental distress, and €56,580 damages to reflect the costs of the Trustee Act application.

174. As this judgment is being delivered electronically, it may be helpful if I indicate that my provisional view in relation to costs is that the plaintiff, having succeeded in obtaining an award of damages, is entitled to her costs. I will put the matter in for mention on

Thursday, the 9th October. In the event that any party wishes to make submissions in respect of this provisional view and on the question of costs, they should notify the Registrar within six weeks of the date of delivery of the judgment and the matter can be considered on that date.