Supreme Court allows appeal against specific performance of settlement due to lack of written contract and defective power of attorney.

THE SUPREME COURT

[S.C. No: 368/06 & 314/06]

Denham J.

Geoghegan J.

Macken J.

Between/

Declan O'Dwyer and Julia Jones-O'Dwyer

Plaintiffs

and

Robin Boyd and Andrew Dillon

Defendants

Judgment delivered the 4th day of March, 2008 by Denham J.

1. There are in essence three appeals before the Court in this matter.

2. First, Robin Boyd, the first named defendant, hereinafter referred to as 'Mr. Boyd', has appealed from so much of the judgment and order of the High

Court (Finnegan P.) as granted Declan O'Dwyer and Julia Jones-O'Dwyer, the plaintiffs, hereinafter referred to as 'Mr. and Mrs. O'Dwyer', specific

performance of a settlement agreement reached in August 2004, compromising earlier High Court proceedings relating to a contract entered into in August

1998, for the sale by Mr. Boyd to Mr. and Mrs. O'Dwyer, of a house and lands in Mallow, Co Cork, subject to abatements by way of compensation for

damage to the property and damages of €500 for consequential loss.

Secondly, a Notice to Vary served by Mr. and Mrs. O'Dwyer.

Thirdly, a separate appeal from the same judgment of the High Court delivered on the 17th May, 2006 insofar as it dismissed the action against Andrew

Dillon, the second named defendant.

3. Unfortunately, there is a long history of litigation between the parties. Indeed, Mrs O'Dwyer informed the Court on the first day of this appeal that it was

their 62nd day in court on issues relating to the matter. Mr. and Mrs. O'Dwyer were lay litigants before the Court and so, as is the usual practice, the Court

was flexible as to its procedures to ensure that Mr. and Mrs. O'Dwyer had an opportunity to present their case. However, while oral submissions are very

helpful, as this is a court of appeal the documents of the case, from the pleadings, through judgment of the High Court, to notices of appeal and written

submissions, are of importance in assisting the Court in its analysis of the case. It is clear from the documents filed and the oral submissions that Mr. and

Mrs. O'Dwyer have spent a considerable amount of time studying the law and court procedures.

4. Mr. Boyd was represented in oral argument by Mr. James Dwyer, S.C., and Mr. Dillon was represented in oral argument by Mr. Aidan Redmond. Written

submissions and books of authorities were received from all the parties.

5. Mr. and Mrs. O'Dwyer brought these proceedings in the High Court seeking:

(a) An order for specific performance of the settlement agreement made in respect of the High Court proceedings 1999 no. 1144P and in

respect of the contract of sale dated the 21st day of August, 1998 for the sale by Mr. Boyd to Mr. and Mrs. O'Dwyer of the dwelling house

and lands known as Killuragh Glen, Killavullen, Mallow, Co. Cork.

It was pleaded that the settlement agreement was made in the High Court before Kelly J. on the 11th August, 2004 and was subsequently

confirmed in writing in letters exchanged between the parties on the 12th August, 2004.

There was also a plea for an abatement of the balance of the purchase price such as the Court considered just:

(i) to cover the losses to Mr. and Mrs. O'Dwyer arising in particular from the destruction and removal from the property on or around the

21st December, 2004 of three antique marble fireplaces being fixtures specifically contracted for sale to Mr. and Mrs. O'Dwyer, and for

all other items of damage, loss or deterioration to the property which have occurred since 11th August, 2004, and;

(ii) to allow for all outstanding taxed costs due to be paid to Mr. and Mrs. O'Dwyer by Mr. Boyd who resides in South Africa, which

may not have been paid to them.

(b) If necessary, an injunction to restrain Mr. Boyd and Mr. Dillon, or their agents, from engaging in any alteration works of any kind on the

property without the prior agreement of Mr. and Mrs. O'Dwyer, and damages for the undoing of any such works.

(c) Damages for all consequential losses to Mr. and Mrs. O'Dwyer arising from breach of the settlement agreement on, and subsequent to,

25th August, 2004.

(d) Damages for negligence in the custody of the property pending completion, and the failure to secure it in accordance with paragraph 9 of

Mr. Dillon's affidavit sworn on the 11th day of October, 2003, and damages arising from the nature and content of Mr. Dillon's communications

to (or concerning) Mr. and Mrs. O'Dwyer subsequent to 25th August, 2004.

(e) Interest on the damages pursuant to statute.

(f) All necessary and consequential accounts, directions and enquiries.

(g) The costs of the proceedings.

6. Subsequent to delivering judgment on 17th May, 2006, on the 22nd May, 2006 the High Court (Finnegan P.) made an order granting the reliefs sought in

paragraphs (a) and (c). The reliefs sought in paragraphs (b), (d), (e), (f) and (g) were refused. The High Court assessed compensation under the heading a(i)

in the sum of €41,170.00, and damages under (c) in the sum of €500.00.

There was a finding within the High Court order that there was no act of repudiation on the part of Mr. and Mrs. O'Dwyer.

The High Court ordered that (a) Mr. and Mrs. O'Dwyer do recover from Mr. Boyd the costs of the action limited to a two day trial, costs to include the

witnesses' expenses of Mr. Cosgrove and Mr. Noble, and that (b) Mr. Dillon do recover against Mr. and Mrs. O'Dwyer his costs of the action limited to a

three day hearing, such costs to exclude the costs of the defamation issue but to include the costs relevant to the power of attorney issue.

Also it was ordered that Mr. and Mrs. O'Dwyer do recover against Mr. Boyd the sum of €41,170 compensation and the sum of €500.00 damages as

abatement of the purchase price.

7. Lengthy notices of appeal and a notice to vary have been filed and I have considered them carefully.

8. First, Mr. Boyd has appealed against a fundamental finding of the High Court. On behalf of Mr. Boyd it was contended that the learned trial judge erred:-

(i) in holding that Mr. and Mrs. O'Dwyer had not demanded payment of taxed costs in breach of the agreement;

(ii) in holding that such breach by Mr. and Mrs. O'Dwyer did not constitute a repudiation of the agreement;

(iii) in ordering specific performance of the settlement of August 2004, the terms of which Mr. and Mrs. O'Dwyer had rejected before

instituting these proceedings;

(iv) in ordering specific performance of that settlement in circumstances in which he had held that Mr. and Mrs. O'Dwyer had breached

the settlement;

(v) in holding Mr. Boyd liable for damage to the property after August, 2004;

(vi) in assessing damages and in particular in applying the Law Society's general conditions of sale;

(vii) in failing to consider whether or not Mr. and Mrs. O'Dwyer were entitled to equitable relief and in

Secondly, Mr. and Mrs. O'Dwyer have served a notice to vary in which they seek the remaining reliefs which were refused by the High Court, in particular

their full costs, and further compensation and damages. They contend that the learned High Court erred:-

(i) In stating that the settlement had not been reduced to writing when a memorandum of the agreement was created on the following

day;

(ii) in finding that Mr. and Mrs. O'Dwyer had breached the settlement by applying for and receiving an order for reserved costs (in

October 2004) which were in addition to those agreed in August 2004;

(iii) in not permitting Mr. and Mrs. O'Dwyer to adduce evidence on aspects of their claim;

(iv) in the manner in which the trial was conducted having regard to their being litigants in person.

Thirdly, Mr. and Mrs. O'Dwyer have also lodged an appeal (314/06) from so much of the order of the High Court as refused their claim against Mr. Dillon and

awarded him his costs. Mr. and Mrs. O'Dwyer contend in this appeal that the trial judge erred and they filed twenty five grounds of appeal. These include

that the trial judge erred:-

(i) In not allowing Mr. and Mrs. O'Dwyer to present their case fully and fairly;

(ii) in holding that Mr. Dillon was an agent of Mr. Boyd and had no liability for the agreement;

(iii) in failing to take into account that the reason that Mr. Boyd had not signed the deed in question as agreed was that Mr. Dillon had

not sent it to him, and other conduct by Mr. Boyd;

(iv) in allowing hearsay evidence;

(v) in holding that letters sent to An Garda Síochána were factually correct and could not be defamatory of Mr. and Mrs. O'Dwyer.

9. The first, and most important issue for determination relates to the terms of the agreement of 11th August, 2004. The nature of this agreement is

significant, as it was an agreement settling an action between the parties. Another important factor is that it was not reduced to writing on the 11th August,

2004.

10. Letters were exchanged between the parties. Three letters were exchanged on the 12th August, 2004. The initial two letters were faxed between the

parties virtually simultaneously, and then a few minutes later the second letter from Mr. and Mrs. O'Dwyer was sent. These letters contained the following.

Mr. and Mrs. O'Dwyer wrote to the solicitors for Mr. Boyd stating:-

"The following are some routine matters arising in relation to the settlement agreement reached between us at the Hearing in the High Court

yesterday before Mr. Justice Kelly.

1. It was agreed that, on Closing within the next 2 weeks (or as soon as you notify us that you are ready), we would pay the Balance of

€270,000 (as put to us by Mr. Brady, and covering all items as stated) and would receive our engrossement signed by Mr. and Mrs. Boyd.

We propose to pay by bank draft - if you wish this to be made out in the name of anyone other than "Mr. Robin Boyd", (e.g. to your own firm)

then please let us know in writing in advance.

2. If the Closing can be done at Pearts (your Dublin address) then it would be most quickly arranged. For a Closing at Pearts, we would

expect to be ready on one day's notice from you (by telephone if you wish) that you have the stated documents, keys, etc. ready.

3. For speed and Mr. Boyd's convenience, if getting the Memorial signed and sworn etc. causes him any immediate difficulty, you may let

him know that (sic) would be prepared to Close without it (and receive it from him/you in due course afterwards).

4. On the matter of costs, we would like to make a proposal to you, to save both sides further time, trouble, correspondence and expense:

You have had costs awarded for one hearing [which have been taxed], and we have had costs awarded for the several Motions (ours and

yours) which were at hearing on 19th and again on 26th July (with Doyle Court Reporters reporting for us on those days). [We attach a copy

of one of the 2 Orders made 26th July - the other is still to be perfected]. On these, we propose to you that for the convenience of both sides

we simply let these awarded cost items balance against each other, so as to avoid the need for further correspondence etc. on these items."

At approximately the same time the solicitors for Mr. Boyd wrote to Mr. and Mrs. O'Dwyer as follows:-

"Re: Robin Boyd -v- O'Dwyer

Settlement as per High Court attendance 11th August 2004

Dear Sirs,

I refer to the above matter.

I wish to confirm the settlement as agreed on 11th August 2004 for the completion of the sale of the property at Killuragh Glen. It is agreed that the balance

of the purchase price in the sum of €270,000 be paid on completion after the reductions which were agreed between the parties. The reductions consisted

of Mr. Boyd's half of the Arbitrator's fee (which was never an issue), in the sum of €19,949.00 and an allowance by our Client of €6,451.00 on the balance of

the purchase price.

I have today sent the Deed of Conveyance to Robin Boyd at his home in South Africa for execution by him. I advise that the Memorial should be completed

by you as Purchasers as it is already drafted in this manner and would be more convenient to do so taking into account the difficulties in getting our Client

to execute such Memorial while residing in South Africa. It is perfectly acceptable in practice that the Memorial be completed by the Purchaser if

necessary.

I trust that this is in order and I shall be in touch further in due course in relation to closing."

Shortly thereafter Mr. and Mrs. O'Dwyer sent a further fax stating:-

"Thank you for your fax just received (you will also have received ours to you).

We are in agreement with everything in your fax just received (including re Memorial), and we await hearing from you very shortly."

On the 13th August, 2004 Dillon Mullins & Company, Solicitors for Mr. Boyd, wrote to Mr. and Mrs. O'Dwyer. The commencement of the letter dealt with

matters on the property, with a view to the sale proceeding. The solicitor then advised four items in advance of closing, being the bank draft, the place of

closing, the memorial, and the fourth item was:-

"4. The Costs awarded to both parties for various court appearances and Motions shall stand as they were agreed in our settlement terms on

11th August with Mr. George Brady SC. I have no authority to vary the settlement terms at this stage."

There was a considerable volume of correspondence thereafter. The situation between the parties deteriorated, and Mr. and Mrs. O'Dwyer commenced

these proceedings.

11. The Pleadings

The claim made by Mr. and Mrs. O'Dwyer has already been set out in this judgment at paragraph 5.

A full Statement of Claim was filed. I believe there is no need to set it out fully as the main element of disagreement as to the terms of the agreement of the

11th August, 2004 was that of costs. Mr. and Mrs. O'Dwyer claimed that the agreement did not incorporate an arrangement as to costs. Paragraph 9 of the

Statement of Claim pleaded:-

"9. The Settlement Agreement of 11th August, 2004 excluded any accommodation on costs, because the parties had reached no consensus

regarding legal costs, but only about the balance of the purchase price to be paid for the Property and the wording of the Deed of

Conveyance. [Mr. and Mrs. O'Dwyer] made a proposal in relation to certain costs, but [Mr. Boyd and Mr. Dillon] did not accept or address

this proposal, and Ms Juliet Lynch of Dillon Mullins & Company representing [Mr. Boyd], said on 11th August, 2004 to [Mr. and Mrs.

O'Dwyer] that she had no authority to make an arrangement on costs, and the matter of costs was left to one side and separate from the

Agreement. There was no discussion whatever of reserved costs."

And paragraph 17 of the Statement of Claim stated:-

"17. On 8th and 16th and 21st December 2004 and 11th January 2005, subsequent to receiving from [Mr. and Mrs. O'Dwyer] their

Summons to Tax in respect of various High Court Orders (of July and October 2004) which granted them their costs (including costs

awarded on 18th October 2004 after the High Court Judge had read the written evidence of the Settlement Agreement) [Mr. Boyd and

Mr. Dillon] wrongfully declared in writing to [Mr. and Mrs. O'Dwyer] that they would regard the Agreement of 11th August 2004 as

'repudiated' and 'at an end' and 'broken' and 'terminated' and 'of no effect' if [Mr. and Mrs. O'Dwyer] were to insist 'on these costs being

paid as per Mr. Justice Kelly's Order'. [Mr. and Mrs. O'Dwyer's] outstanding costs to date were Taxed together under that Summons to

Tax on 10th February 2005 in the sum of €6,639.32c. [Mr. Boyd and Mr. Dillon] have maintained, in breach of the Agreement of 11th

August 2004, which Agreement did not incorporate an arrangement on costs, that they would regard this Agreement as terminated if

[Mr. and Mrs. O'Dwyer] sought payment of these costs; and because of this stance by [Mr. Boyd and Mr. Dillon] and because [Mr.

Boyd] is not resident in the jurisdiction, [Mr. and Mrs. O'Dwyer] seek an abatement of the balance of the purchase price in respect of

this unpaid debt, with interest."

However, a different view of the settlement agreement was held by Mr. Boyd. In the defence filed on behalf of Mr. Boyd it is stated:-

"14. It is denied that there was no discussion whatsoever of reserved costs. On the contrary, senior counsel on behalf of [Mr. Boyd]

expressly stated that save for the three express orders as to costs in favour of each of the parties, each side was to bear their own

legal costs.

15. If, which is denied, there was no agreement with regard to costs then the parties were not ad idem and in the premises it is denied

that the 1999 proceedings were settled as alleged or at all."

And the terms relating to costs was further addressed in paragraph 21 which stated:-

"21. [Mr. and Mrs. O'Dwyer] have repudiated the settlement agreement by insisting on recovering costs over and above those which

had been agreed between the parties on the 11th August 2004. When requested to either affirm the settlement of the 11th August

2004 (and forego the additional costs) or indicate whether they wished to seek the additional costs and repudiate the agreement so

reached, they insisted on seeking additional costs."

There was clear conflict apparent on the pleadings, as to the terms of the settlement agreement on reserved costs.

12. The case was at hearing for six days before the High Court. As the agreement was negotiated orally between the parties on the 11th August, 2004, and

not reduced to writing on that date, the oral evidence as to the terms of the agreement was of critical importance. This oral evidence was heard by the

learned High Court judge.

13. The High Court held that the dispute between the parties centred on the issue of reserved costs. The learned trial judge referred to the faxes exchanged

on the 12th August, 2004, to later correspondence during August, and stated that the first matter to be determined was whether on the 11th August, 2004

there was any agreement on costs, and if so what were the terms agreed. Mr. and Mrs. O'Dwyer submitted that there was no agreement as to costs. The

learned trial judge heard conflicting evidence given on behalf of the defendants - evidence that there was an agreement as to costs. On this conflict of

evidence the High Court held:-

"George Brady SC in evidence was adamant and unshakable as to the terms agreed as to costs and his evidence was that the

agreement was as pleaded in [Mr. Boyd's] defence. I find support for Mr. Brady in the sequence of correspondence which I have

mentioned and in particular the passage which I quote from the letter dated 13th August 2004 Dillon Mullins & Company to [Mr. and

Mrs. O'Dwyer] which clearly states that it was agreed that the costs orders should stand. In the sequence of correspondence which I

have cited [Mr. and Mrs. O'Dwyer] did not demur from this very clear statement. It may be that [Mr. and Mrs. O'Dwyer] sought to

renegotiate the position with regard to reserved costs when they received the letter dated 20th August 2004 and the Certificate of

Taxation Costs due to [Mr. Boyd] under the terms of settlement in the amount of €9,916.00 an amount considerably in excess of

anything [Mr. and Mrs. O'Dwyer] could hope to recover under the orders for the reserved costs of which they had the benefit but I do

not so find. On the evidence I find that in relation to costs the terms of the settlement were as pleaded by [Mr. Boyd]".

14. Thus, the High Court made a clear finding of fact as to the terms of the agreement, grounded on the oral evidence which was heard by the learned High

Court judge. The jurisprudence as to the role of this appellate court in such a situation is well established. As was stated in Hay v. O'Grady [1992] 1 I.R.

210, an appellate court does not enjoy the opportunity of seeing and hearing witnesses, or observing the manner in which the evidence was given or the

demeanour of those giving it. If the findings of fact made by the trial judge are supported by any credible evidence (which they were in this case), the

Supreme Court is bound by them. Consequently, the fact is that the agreement did contain the term as to reserved costs contended for by the defendants.

15. However, despite such agreement, upon a motion of Mr. and Mrs. O'Dwyer acting in person, the High Court (Kelly J.) on the 18th October, 2004 lifted

the reservation on costs on the order dated 5th July, 1999 and awarded those costs to Mr. and Mrs. O'Dwyer.

16. The next issue addressed by the High Court, and which I will address in the same sequence, is the effect on the settlement of Mr. and Mrs. O'Dwyer's

application for, and receipt of, an order in their favour in respect of reserved costs.

The High Court pointed out that Mr. Boyd claimed that Mr. and Mrs. O'Dwyer in so proceeding repudiated the settlement, and that as a consequence of Mr.

Boyd accepting the repudiation there was no longer an agreement between the parties. The High Court referred to the letter of 8th December, 2004 from Mr.

Boyd's solicitors to

Mr. and Mrs. O'Dwyer, where it was stated:-

"If it is that you now propose to rely on this Order (i.e. the Order granting [Mr. and Mrs. O'Dwyer] the reserved costs) and to resile from your

agreement made on 11th August please confirm. We do not accept that you are entitled to any costs pre July 2004 if we are to abide by the

11th August agreement. If you persist in demanding payment of the 1999 costs we shall regard that persistence and demand as a repudiation

of the 11th August agreement. We therefore require to know, by return if it is that you are insisting on these costs being paid, as per Mr.

Justice Kelly's Order, or not. If you do insist, then please say so immediately, and we shall regard the agreement as being repudiated and at

an end."

The High Court referred to further correspondence. Specifically the High Court referred to letters of the 16th December, 2004 and 21st December, 2004 and

held that these letters were not an acceptance of the repudiation.

This issue is a mixed question of fact and law. Insofar as it is factual it is based on documents. Consequently, on this issue this Court is in the same

position as the High Court. Having reviewed the documents I am satisfied that the High Court fell into error on this issue, and that there was an acceptance

of the repudiation.

While many matters were referred to in correspondence this issue was clearly dealt with in the letter dated 8th December, 2004 from Mr. Dillon to Mr. and

Mrs. O'Dwyer. It was stated, inter alia:-

“We are advised by our Counsel, Ms Costello and Mr. James Dwyer, that at the last airing of this matter in the High Court in Dublin on 18th

October, you applied for those costs before Mr. Justice Kelly. Mr. Justice Kelly was so fed up with the entire business that he granted you an

Order for your costs by lifting the reservation on costs on the Order dated 5th July 1999, thus further punishing Mr. Boyd. If it is that you now

propose to rely on this Order and to resile from your agreement made on 11th August, please confirm. We do not accept that you are entitled

to any costs pre-July, 2004 if we are to abide by the 11th August agreement. If you persist in demanding payment of the 1999 costs we shall

regard that persistence and demand as a repudiation of the 11th August agreement. We therefore require to know, by return, if it is that you

are insisting on these costs being paid, as per Mr. Justice Kelly's order, or not. If you do insist then please say so immediately, and we shall

regard the agreement as being repudiated and at an end. If you respond immediately to say that you are mistaken in demanding payment of

these costs or at least that you no longer demand them, then we shall make immediate arrangements to close the sale. ... …"

On 10th December, 2004 Mr. and Mrs. O'Dwyer responded. Inter alia, the letter included the following paragraphs:-

"We refer to your letters of 26th November and 8th December 2004.

We do not agree with the content of those letters, and those letters contain fabrications.

You continue to attempt to re-write the Agreement of 11th August, 2004 to suit what appears to be a changing situation for you as well

as to advantage a third party, and you have no compunction about writing falsely that we have agreed to various matters to which we

did not agree. What was agreed between the two sides is set out in the letters of 12th August, and in the Court transcript of 11th

August. It has also been discussed in Court, and it has been accepted by Mr. Justice Kelly that we were and are ready, willing and

able to perform our part of the Agreement, but Mr. Boyd was not. You are wasting everyone's time trying to alter, add to, take from, or

re-interpret both that Agreement and what has been said by Mr. Justice Kelly in Court.

Your arguments concerning the possibility of an award of costs being in conflict with the Agreement: (a) are based on the spurious

premise that the 11th August Agreement incorporated some arrangement on costs, which it did not (see letters of 12th August); and

(b) were already put by your S.C., Mr. O'Dwyer to Mr. Justice Kelly on 18th October, and were rejected by Mr. Justice Kelly, after he

read the correspondence from both sides in which the details of the Agreement were set out. This is a judged issue and cannot be re-

opened; and you are wasting everyone's time by making these arguments to us after they were heard and rejected by the Judge, who

then lifted the reservation on costs, and after he had done this, went on to describe the Agreement as 'crystal clear'."

That letter continued, and stated that there was nothing in the agreement concerning costs.

By letter dated 16th December, 2004, from Mr. Dillon to Mr. and Mrs. O'Dwyer it was stated, in the first paragraph:-

"Thank you for your letter of 10th December. We note the position. We also note that you are insisting on payment of your costs in respect of

the Order of Mr. Justice Kelly and further in respect of the Order of Mr. Justice O'Donovan dated 5th July, 1999. We must again point out to

you that the July 1999 costs were originally reserved. On 11th August we maintain you forewent those costs as a part of the settlement. We

take it, therefore, that the settlement agreement, as made between you and our Senior Counsel, George Brady, and our Assistant Solicitor,

Ms Juliet Lynch, is repudiated. We must fundamentally disagree with what you say in your letter of 10th December wherein you say that

there is nothing in the agreement concerning costs. Neither Ms Lynch nor Mr. Brady said anything about having the authority to make an

arrangement. It was clearly agreed that such Orders for Costs as existed would stand and all other costs would be met by each side for

themselves. That is to say, all unbilled costs and all reserved costs would be met back to back. We understand that by repudiating this that

you are now repudiating the terms of the settlement of 11th August."

It was then stated that nevertheless Mr. Boyd would be open to comply with the terms of the settlement of 11th August, 2004. Other matters were referred

to in the letter.

In a letter of 21st December, 2004 Mr. Dillon reiterated the point of view of Mr. Boyd, inter alia reiterating their position on reserved costs. This included the

sentence:

"As we have said earlier, if you continue to maintain this claim, then we say that you are repudiating the settlement, i.e. there was no

settlement on 11th August."

During January, 2005 the parties maintained their positions on the issue of reserved costs and the August, 2004 settlement, in correspondence. Then, on

the 31st January, 2005 Mr. and Mrs. O'Dwyer issued these proceedings.

Thus the parties were in conflict on the issue of the reserved costs. In the general indorsement of claim, set out earlier in this judgment, Mr. and Mrs.

O'Dwyer set forth their position that the matter of reserved costs was not a term of the settlement of the 11th August, 2004. In the defence it was expressly

pleaded that the issue of reserved costs was a term of the settlement and that Mr. and Mrs. O'Dwyer breached the settlement by seeking the reserved

costs. In the correspondence, amongst other issues raised, the solicitor for Mr. Boyd clearly informed Mr. and Mrs. O'Dwyer that if they persisted it would

be treated as a repudiation of the agreement. Mr. and Mrs. O'Dwyer persisted, and issued these proceedings.

The effect of the actions of Mr. and Mrs. O'Dwyer was to repudiate the contract. The response of the defendants to the repudiation was consistent.

Mr. Boyd and Mr. Dillon in correspondence and in the defence clearly indicated to Mr. and Mrs. O'Dwyer that they had breached the agreement and that

Mr. Boyd would not proceed on the (new) terms suggested by Mr. and Mrs. O'Dwyer. Mr. and Mrs. O'Dwyer were warned numerous times, in

correspondence, yet they proceeded and repudiated the agreement. Many attempts were made by Mr. Boyd and Mr. Dillon to have the original agreement

proceed. Mr. and Mrs. O'Dwyer were warned repeatedly that if they persisted with their claim the settlement would be treated as repudiated and

consequently terminated.

I am satisfied that, at the earliest in the correspondence up to January, 2005, or at the latest in their defence, the defendants accepted the repudiation.

They made numerous attempts to have the agreed settlement proceed, but this does not render at nought their clear statements as to the terms of the

agreement, the repudiation by Mr. and Mrs. O'Dwyer, and the acceptance of the repudiation by the defendants.

17. However, even if that was not the case, if there was any doubt as to the acceptance by Mr. Boyd and Mr. Dillon of the repudiation, I am satisfied that

Mr. and Mrs. O'Dwyer are not entitled to an order for specific performance of the settlement, the terms of which the High Court clearly determined. It is an

equitable remedy; fairness is at the root of the remedy. In this case Mr. and Mrs. O'Dwyer have argued in the High Court, and in this Court, that the terms

of the settlement are different to those found by the High Court, and to those now affirmed in this Court on appeal. Mr. and Mrs. O'Dwyer continue to submit

that the terms of the settlement agreement contain no term as to reserved costs. It would be contrary to equity to award an order of specific performance of

a contract to Mr. and Mrs. O'Dwyer when they continue to deny the terms of the contract.

18. The effect of these decisions is that Mr. Boyd and Mr. Dillon are not obliged to complete the purchase in accordance with the settlement agreement of

11th August, 2004. Consequently, there is now no agreement for sale of the property between the parties.

19. Therefore, many of the subsidiary matters raised are no longer in issue.

20. However, there remains a claim of importance to Mr. and Mrs. O'Dwyer, and that is a claim that a letter written by Mr. Dillon is defamatory.

This letter was written by Mr. Dillon at a time when relations between the parties had deteriorated. A matter of concern to all was that on about the 20th or

21st December, 2004, three marble fireplaces were hacked from the chimney breasts of the house and were either removed or broken into pieces. An

Garda Síochána were informed. Mr. and Mrs. O'Dwyer made contact with the police, as well as Mr. Dillon. There was a heated exchange of

correspondence. In their Statement of Claim, at paragraph 31, Mr. and Mrs. O'Dwyer set forth their claim on this issue as follows:-

"31. In a malicious falsehood and substantial defamation falsely alleging a crime, and for the purpose of making wrongful gain for [Mr.

Boyd], and to assist him in evading his contractual obligation to convey those pieces of fireplace to [Mr. and Mrs. O'Dwyer] on the

Completion of the Sale, and specifically to allow [Mr. Boyd] to be able to benefit from the misdescription of these pieces in [Mr. Boyd

and Mr. Dillon's] "Insurance Valuation" documents in which these valuable pieces had been written off, these pieces having been

described by [Mr. Boyd and Mr. Dillon] as "contents" since the incident of (or around) 20th - 21st December, [Mr. Dillon] published in

two letters to the Gardaí that [Mr. and Mrs. O'Dwyer] had committed a crime in taking into safekeeping those rescued marble fireplace

pieces, and he instructed the Gardaí at Fermoy, in a letter to them dated 16th February 2005, and in his capacity as a solicitor, that

[Mr. and Mrs. O'Dwyer] be prosecuted for 'theft'. His letter to the Gardaí of 16th February 2005 was dated 15 days after [Mr. and Mrs.

O'Dwyer] had served civil proceedings concerning these fireplaces and concerning all pieces remaining, and after [Mr. Dillon's] firm had

entered an Appearance in these civil proceedings, and after he had been notified on two separate occasions of [Mr. and Mrs.

O'Dwyer's] lien.

[Mr. and Mrs. O'Dwyer] were made aware of these letters by the Gardaí, who said they were obliged to ask [Mr. and Mrs. O'Dwyer]

about the contents of them, and asked [Mr. and Mrs. O'Dwyer] to make a written submission about them, which [Mr. and Mrs.

O'Dwyer] did."

In the defence filed it was stated, at paragraph 33:-

"33. It is denied that [Mr. and Mrs. O'Dwyer] had any right or authority or consent from [Mr. Boyd] to remove any of the pieces of the

fireplaces remaining upon the property as alleged or at all. By wrongfully removing the said pieces without authorisation, and by

wrongfully failing refusing and neglecting to return the pieces to the custody of [Mr. Boyd's] agents, [Mr. and Mrs. O'Dwyer] have

hindered [Mr. Boyd's] negotiations with his insurance company's loss adjusters and insofar as same may affect the ultimate resolution

of his insurance claim, [Mr. Boyd] claims such loss and damage by way of counter-claim against [Mr. and Mrs. O'Dwyer]."

The learned High Court judge considered this claim. First of all he dismissed it on a technical point. He recited that Mr. and Mrs. O'Dwyer had taken

exception to a number of letters written by Mr. Dillon. They claimed that a letter is defamatory. Mr. Dillon objected, submitting that this claim for defamation

was not correctly pleaded.

The learned trial judge held that he was satisfied that this was so, that the claim of Mr. and Mrs. O'Dwyer failed on a technical ground. I see no reason to

interfere with this finding. This decision determines the issue.

However, the learned trial judge then proceeded to consider details of the claim. Because of this I too will continue to consider the matter. The learned High

Court judge stated:-

"I am in any event satisfied that nothing in the letter or the enclosures is capable of bearing a defamatory meaning. This claim fails."

The learned trial judge continued:-

"In paragraph 29 of the Statement of Claim [Mr. and Mrs. O'Dwyer] plead that the defendants falsely and maliciously asserted to third

parties including the Gardaí that [Mr. Boyd] was entitled to the property. At all relevant times [Mr. Boyd] remained the legal owner of

the property. This claim fails."

There is no doubt that in law Mr. Boyd remained owner of the property pending sale. Thus, this is a correct statement of the law.

The learned trial judge referred specifically to a letter written by Mr. Dillon on the 16th February, 2005 to the Gardaí in Fermoy, which Mr. and Mrs. O'Dwyer

claimed to be defamatory of them.

The learned High Court judge identified the relevant passage as:

"Secondly, we wish to report the fact that people called Declan and Julie O’Dwyer, who have long ago contracted to purchase this

house called for an inspection of the damage in early January. To our dismay Mr. & Mrs. O’Dwyer, without our permission or authority

have taken a large number of pieces of marble which formed parts of the damaged fireplaces, and which were lying around the ground

inside the house. They also relieved Mrs. Canavan, the housekeeper, of a particularly significant carved piece of marble which formed

part of the fireplace in the drawing room of the house. We have demanded that the O’Dwyers return or restore the marble to the

property and they have refused. They have informed us that they are keeping the pieces of marble in safekeeping. Would you please

note that this property belongs to Mr. Boyd. Mr. Boyd is the owner of Killuragh Glen. The O’Dwyers have taken it without permission.

In our view quite simply that is theft.

Mr. & Mrs O’Dwyer live at 28 Leeson Park, Dublin 6. Will you please arrange for your colleagues who operate in that area to arrange to

call to their house to investigate this matter. On behalf of our Client, Mr. Boyd, we are instructing you to prosecute this matter on

behalf of our Client. If you wish to receive a statement, such statement can be taken at your station in Kinsale. At any rate, will you let

us know what you require in order for you to investigate this business and recover the missing articles. You may as well note at this

point that this is not simply something which can be assigned to “civil remedy”. The property has been wrongfully taken from the

house. On behalf of our Client we have demanded its return and this has been refused. There is no denial that it has been taken. Mr.

and Mrs. O’Dwyer seem to be under some impression that they are entitled to take it. This does not lessen the offence. They may be

misguided."

The learned High Court judge held, inter alia:-

"There can be no dispute as to the law here. The marble pieces in question were then and remain the property of [Mr. Boyd] who

retained until completion the legal estate in the premises and the right to possession thereof, including the fixtures therein and which

includes fireplaces, as against [Mr. and Mrs. O'Dwyer]. [Mr. and Mrs. O'Dwyer's] beneficial interest does not carry with it a right to

possession of the premises or fixtures nor does it carry a right to a lien. While [Mr. and Mrs. O'Dwyer] may have been well motivated

in securing the same once demand for the return was made and refused [Mr. and Mrs. O'Dwyer] were in wrongful possession of the

same."

I would uphold this determination. However, I am satisfied that the matter should be viewed in context. At that time there was acrimony between the parties.

There had been a robbery at the property. Marble fireplaces, which Mr. and Mrs. O'Dwyer viewed as important parts of the property they wished to buy,

were stolen or vandalised. There was confusion. Mr. and Mrs. O'Dwyer wished to try and preserve the remains. They are lay litigants.

In such a situation I am satisfied that the terms of the letter of Mr. Dillon were intemperate, and possibly unprofessional. In best practice the letter should

not have been expressed as it was. However, I would not interfere with the finding of the High Court that Mr. and Mrs. O'Dwyer were not entitled to succeed

on the claim of defamation in this case.

Power of Attorney

In the circumstances, I am satisfied that the appeal of Mr. Boyd should be allowed and that there should not be an order for specific performance, so the

claim by Mr. and Mrs. O'Dwyer as to the power of attorney of Mr. Dillon is no longer relevant.

The High Court held that Mr. Dillon is a solicitor and held and acted under power of attorney from Mr. Boyd. Mr. and Mrs. O'Dwyer sought to have Mr. Dillon

made liable for defaults of Mr. Boyd. The High Court held:-

"An Attorney is an agent appointed by deed and subject to that is in the same position as any other agent. The general principle is

that the contract of an agent is the contract of the principle and prima facie the agent is not liable on the agreement: Montgomerie v.

UK Mutual SS Assurance Limited [1891] 1 Q.B. 370. Nothing has been urged upon me to take [Mr. Dillon] outside this general

principle."

I note the submissions and authorities and oral submissions made by Mrs O'Dwyer on this point. It is a technical area of law and it is clear that she has

spent a considerable time studying the issue. However, on the facts of the case I would affirm the decision of the High Court.

22. Conclusion

I would allow the appeal of Mr. Boyd, and I would reverse the finding of the High Court, and refuse an order of specific performance of the settlement

agreement of the 11th August, 2004.

However, I express concern at a number of matters in this case. First, it is unfortunate that the matter has been litigated over so many years. Secondly, it

was unfortunate that the oral agreement of the 11th August, 2004, was not reduced to written form immediately. Thirdly, the tone of the correspondence in

this case was often unduly heated. Specifically, the letter of Mr. Dillon, which Mr. and Mrs. O'Dwyer complained of in the pleadings and before the Court,

was not appropriate in all the circumstances.

In conclusion, I would allow the appeal of Mr. Boyd. Consequently there will be no order of specific performance of the settlement of 11th August, 2004.

Therefore there is no contract now existing between the parties as to the property.

I would dismiss the appeal contained in the Notice to Vary and the further appeal against the dismissal of the action against Mr. Dillon.