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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dublin City Council v Lynskey & Anor (Approved) [2025] IEHC 241 (29 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC241.html Cite as: [2025] IEHC 241 |
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[2025] IEHC 241
THE HIGH COURT
Record no. 2016/8882 P
Between
DUBLIN CITY COUNCIL
Plaintiff
and
JOHN LYNSKEY and JOHN BERMINGHAM
Defendants
Judgment of Ms Justice Nessa Cahill delivered on 29th April 2025
Overview
1. These proceedings concern the ownership of a property located at 41 Parnell Square, Dublin and registered on Folio 123103F ("the Property"). It was formerly owned by Mr Lynskey and the late Mr Bermingham but fell into disrepair and, on 16 May 1996, Dublin City Council ("DCC") entered it on the Derelict Sites Register maintained under Derelict Sites Act 1990 ("the Act of 1990"). An order was made on 18 June 1998 vesting title to the Property in DCC ("the Vesting Order"). DCC accordingly became the registered legal owner of the Property.
2. Following the issue of judicial review proceedings by Mr Lynskey and Mr Bermingham to challenge the Vesting Order, a settlement was reached on 25 June 2003 which required them make a payment of €75,000 ("the Payment"), and complete certain works at the Property ("the Works"), following which legal title to the Property would be transferred back to them ("the Settlement Agreement").
3. What ensued was that the Payment was made and the Works were certified as complete as of 3 April 2008. However, there has been no transfer of title to the Property to Mr Lynksey and Mr Bermingham. This is the central issue that gave rise to the issue of these Proceedings by DCC on 5 October 2016.
4. Over the eight-year period before the issue of these Proceedings, DCC communicated with Mr Lynskey, Mr Bermingham and several different solicitors acting for them (and believed to be acting for them) at different points in time, repeatedly forwarding a draft deed to effect the transfer of legal title as required by the Settlement Agreement. There is a question about the date of the document, to which I will return. For ease of reference, however, I will refer in this judgment to "the Draft Deed" to encompass any and all copies of a draft deed of transfer as issued by DCC between 2009 and 2016.
5. For the reasons given in this Judgment, I am satisfied that DCC took every reasonable step during that period to transfer legal title to the Property to Mr Lynskey and Mr Bermingham and that it was the failure by Mr Lynskey (and Mr Bermingham prior to his passing on 21 October 2021) to engage or co-operate that prevented the transfer taking place.
6. While Mr Lynskey's consistent evidence was that he never saw the Draft Deed, it is clearly established by the evidence before me that correspondence regarding DCC's attempts to transfer legal title to the Property, and copies of the Draft Deed, were sent to Mr Lynskey at his home address and that several different persons instructed to act on his behalf (as well as persons he asserts were not so instructed) also received copies of similar documentation. Mr Lynskey accepts that at least some of the solicitors in question did forward the correspondence received from DCC to him, and that he did meet certain solicitors in relation to the transfer of the Property. It is difficult to understand how Mr Lynskey could not have seen the Draft Deed.
7. However, I do not need to determine the veracity of his answer in this respect. Even if Mr Lynskey never physically saw the document, this is not owing to any default on the part of DCC, but could only have arisen because he failed or refused to read documents sent to him. Even if this is what happened, the evidence shows that his solicitors received the Draft Deed; sought his instructions on it; and that he met at least two different solicitors to discuss these matters.
8. It is also notable that, on his own evidence, he was not "hands on" and he accepts that Mr Bermingham, who acted on his behalf in dealing with the solicitors, may have seen the Draft Deed. His evidence also discloses an awareness on his part of the existence of the Draft Deed. Whether Mr Lynskey himself physically saw the Deed is a somewhat semantic point, and one that is certainly not material in all of the circumstances disclosed in Mr Lynskey's own evidence.
9. More significantly, there is no evidence or suggestion of any attempt by Mr Lynskey to secure a transfer of title to the Property. On the contrary, he stated in his oral evidence that, as early as 2010, but certainly by 2014, he did not wish to take transfer of title to the Property owing to its deteriorated condition, or at least not without unspecified "changes". There was no provision in the Settlement Agreement for conditions to be attached to the transfer of title.
10. I agree with DCC that it must have been - and necessarily was - an implied term of the Settlement Agreement that Mr Lynskey and Mr Bermingham (at that time) would co-operate and agree and execute an appropriate transfer deed. Mr Lynskey's decision not to accept the transfer of the Property (or not to accept its transfer without unspecified "changes"), evidences a decision by him not to comply with that final remaining term of the Settlement Agreement.
11. On the basis of the foregoing, I am satisfied that the evidence at trial demonstrates a repudiatory breach of the Settlement Agreement by Mr Lynskey, entitling DCC to treat the Agreement as at an end.
12. While my decision is that DCC is no longer obliged to transfer legal title to Mr Lynskey, and this is so owing to the decisions and inaction of Mr Lynskey himself, I nonetheless consider that it would be inequitable for DCC to retain the Payment as well as retaining legal title to the Property. I do not believe this is envisaged by the Draft Deed prepared by DCC itself. I will therefore direct that DCC return the Payment to Mr Lynskey.
Background
The Property
13. The Property is a Georgian terraced four-storey-over-basement building which was built c 1760. It faces Parnell Square West. There was previously another two-storey building to the rear of the Property that was attached to it by a third structure. Those additional structures were demolished in 2020 and these Proceedings concern only the original Georgian building.
14. Mr. Lynskey and Mr. Bermingham jointly acquired a 999-year lease of the Property in or around 22 December 1983. At that time, it was in use as a dance hall, although that use ceased by the mid-1980s.
The Vesting Order
15. The Property fell into disrepair and a notice approving its entry onto the Derelict Sites Register that is maintained under the Act of 1990 was issued by the DCC Assistant City Manager on 6 December 1995. The impact of the Property being entered on the Derelict Sites Register was that the owner was liable for a derelict sites levy every year. The owners would also be liable to perform certain works that might be directed by the local authority and ultimately if it arose the local authority would have the power under the act to compulsory purchase the property so as to remediate the dereliction.
16. The service of that notice was approved on 8 December 1996. On 16 May 1996, DCC entered the Property on the Derelict Sites Register. On 28 June 1996 an order was made approving the service of a notice under section 11 of the Act of 1990 on the owners of the Property requiring them to carry out works and indicating that action would otherwise be taken including proceedings under section 11. That notice was served on Mr Lynskey and Mr Bermingham on 1 August 1996.
17. On 19 December 1996, a recommendation was made to commence proceedings to acquire the Property and an order was made on 20 January 1997 to institute Proceedings.
18. By letter dated 27 March 1997 and sent to Mr Lynskey at a residential address in Dublin, he was notified of the instructions to commence proceedings under section 11.
19. There was a meeting with Mr Lynskey and Mr Birmingham on 28 July 1997, the contemporaneous note of which records that Mr Lynskey was then residing in England and that he refused to furnish an address for correspondence.
20. There was correspondence from a solicitor acting for Mr Bermingham (not for Mr Lynskey), David M Turner, at that time and an objection to the compulsory acquisition of the Property was filed by him on 17 December 1997.
21. The Minister for the Environment and Local Government issued his consent to the acquisition of the site on 11 May 1998.
22. The Vesting Order was then made by DCC on 18 June 1998 and, as of 18 July 1998, DCC became the registered legal owner of the Property, which ownership was recorded on Folio 123103F.
The Judicial Review Proceedings
23. On 18 September 1998, Mr. Lynskey and Mr. Bermingham obtained leave from the High Court to seek judicial review of the decision to compulsorily acquire the Property and of the vesting order ("the Judicial Review Proceedings").
24. On 25 June 2003, a settlement was reached in the Judicial Review Proceedings.
The Settlement Agreement
25. The Settlement Agreement states that agreement is reached between Mr Bermingham, Mr Lynskey and DCC as follows:
"1. The Applicants to carry out the work to the premises the subject matter of the proceedings as listed in Appendix 1 hereto subject to all necessary planning permissions where required same to be carried out in consultation with a conservation architect.
2. The said works referred to at paragraph 1 above to be carried out within a period of four months from the date of notification of Dublin City Council's consent to this agreement and the granting of the licence referred to below at paragraph 7 or from the date of the final grant of planning permission whichever is the later.
3 If planning permission is required for any of the works referred to in paragraph 1 same to be applied for as soon as possible and in any event within four months of today's date and pursued with due diligence.
4. Pending the carrying out of the works referred to at paragraph 1 the Applicants to carry out the works referred to at Appendix 2.
5. Upon completion of the Transfer referred to below the Applicants to pay the first named respondents the sum of €75,000 same to include all derelict site levies, all charges levied in respect of works, and the costs of these proceedings.
6. The proceedings to be adjourned to the 12 November, 2003.
7.The First Named Respondent will permit the Applicants, their servants and agents to have access to the premises for the purposes of carrying out the works referred to in Appendix 1 and 2 and will execute an appropriate temporary convenience licence in that respect same to be prepared by the Applicants and submitted to the First Named Respondent for approval and execution."
26. There is then a provision dealing with indemnification of DCC against claims arising from the grant of the licence and the carrying out of the works provided for in the Agreement. The Agreement continues as follows:
"9. If the works referred to in Appendix 1 are completed within the 4 month period allowed, the First Named Respondent will in consideration of this agreement and the carrying out of the works transfer the premises to the Applicants as equal tenants in common (the Deed of Conveyance to so state).
10. If either party breaches any of its obligations under this agreement the other party shall be at liberty to treat the agreement as at an end in which case the proceedings may be re-entered for hearing."
27. The Agreement was executed on 25 June 2003 and an order was made by the High Court (Peart J) on that same date ordering that the Settlement Agreement be made a rule of court and filed with the Order ("the Court Order").
28. The Judicial Review Proceedings were adjourned generally with liberty to re-enter.
29. On 30 June 2003, Mr. Lynskey and Mr. Bermingham paid the sum of €75,000 to DCC. One of the witnesses on behalf of the DCC (Ms Corry) confirmed that this money continues to be held in an interest-bearing account.
Events between 2003 and 2008
30. There were inspection reports issued in respect of the Works on 11 November 2003 and 7 December 2004 by a DCC employee, Mr Frank Egan, in which he detailed the progress of the Works and certain engagement he had with Mr Lynskey and the late Mr Bermingham (pre-2008). Ms Corry gave evidence on behalf of DCC regarding these reports.
31. It was said by Mr Lynskey's counsel that caution was required with regard to the reports and that they could not be evidence "in the real sense of the word" (day 1, page 94) as Mr Egan did not give evidence. This objection was not expanded upon or pressed in submissions and no application was made to exclude the reports. Counsel for DCC stated that the reports were relied upon as part of the context; that they were not the focus of DCC's case; and that Mr Lynskey could respond in evidence to the description of his engagement with Mr Egan. It was also stated by Ms Corry that she understood that the individuals whose names appeared in the documents (such as Mr Egan) were retired.
32. There is no dispute between the parties that the Works were confirmed to have been completed satisfactorily as of 3 April 2008. The questions of how and when the Works were done, or the interaction between the parties in relation to them prior to that date, are not material to the issues I have to determine. Given the objection articulated and the fact that the reports are not relevant to any issue in dispute, I do not attach weight to them.
33. The important fact for the purpose of these Proceedings is that, despite the completion of the Works, no deed of transfer was executed. It is DCC's case that, between 2009 and 2016, it repeatedly sent a draft deed to Mr Lynskey and solicitors acting (or believed to be acting) for him for execution.
34. The version of this document that was relied upon at the hearing refers to the year "2014" in the (otherwise incomplete) date at the head of the draft document and is a short document, totalling 2 pages. Having recited the background, including the Judicial Review Proceedings, the Court Order, and stating that DCC has agreed to transfer the Property to Mr Bermingham and Mr Lynskey, the draft deed states as follows:
"In consideration of these presents and in consideration of the payment of €75,000 by the transferees to the Council (the receipt of which is hereby acknowledged), the Council, as registered owner hereby transfers the Property to the Transferees."
35. There are then other provisions dealing with questions of stamp duty and confirming that the property is not a residential property. Neither this deed, nor any other form of deed to transfer title, was executed.
36. During this period from 2008 onwards, the Property deteriorated again and measures were taken and substantial costs incurred by DCC to maintain and secure it (although there is some differences between the parties in relation to the precise works done and their necessity). DCC has funded all remedial and maintenance works since 2008 and calculates the cost at €952,406.
37. These Proceedings were issued on 5 October 2016.
The Proceedings
38. The reliefs sought in the plenary summons issued against Mr Bermingham and Mr Lynskey include the following:
"A declaration that the agreement entered into between the Plaintiff and the Defendants herein, on the 25th of June 2003, which Agreement was received and filed by Order of the High Court on 25th June , 2003 in respect of proceedings 1998\371JR is rescinded and is now terminated and/or at an end.
To the extent that it is necessary a further declaration that the actions and conduct of the Defendants and each of them constitute a repudiation of the said Agreement to the effect that all estate, right, title and interest in the property more particularly set out and described in the schedule hereto first in the Plaintiff absolutely."
39. DCC also seeks damages for breach of contract; for the securing and maintaining of the schedule of property; and such further or other orders as may be deemed appropriate. It was confirmed by counsel for DCC during the hearing that the claim for damages is not being pursued and that the central relief sought is an order confirming the rescission of the Agreement and confirming that Mr Lynskey and Mr Bermingham have no beneficial interest in the Property (day 1, page 39; day 3, page 32).
40. By the Statement of Claim delivered on 5 October 2016, DCC sets out the background to the Proceedings including the entry into the Settlement Agreement and the terms of that Agreement. It is pleaded that, in accordance with the terms of the Settlement Agreement the Plaintiff drafted a deed of transfer to transfer the Property to the Defendant for execution by them and that, despite numerous attempts to request and compel the execution of the transfer, Mr Lynskey and Mr Bermingham failed, neglected and refused to execute any deed of transfer in their favour.
41. It is also pleaded in the Statement of Claim that DCC has continued to maintain the Property which has required the expenditure of substantial sums of money including for the carrying out of substantial works that were required in 2014 after the ceiling of the Property collapsed.
42. The position of DCC in its Statement of Claim is that Mr Lynskey and Mr Bermingham are in breach of the Settlement Agreement in failing to execute a deed of transfer in respect of the Property. It is pleaded that this constitutes a repudiation of the agreement by Mr Lynskey and Mr Bermingham and it is further pleaded that they have accepted by their conduct that the Settlement Agreement is terminated. The DCC accordingly seeks a declaration that the Agreement is rescinded and at an end.
43. By way of replies to particulars dated 27 February 2019 DCC plead that a draft deed of transfer was furnished to Messrs Walsh Warren & Co. solicitors (who, at that time, were the solicitors acting for the Defendants) on 29 May 2009.
44. Following the issue of a Motion for Judgement in Default of Defence on 10 January 2020, a Defence and Counterclaim was delivered by the Defendants on 4 February 2020.
45. By that Defence, it is denied that there was a breach of the Settlement Agreement as alleged or at all. It is specifically pleaded that Mr Lynskey and Mr Bermingham expended very considerable sums in carrying out repairs and upgrades to the Property pursuant to the Settlement Agreement.
46. It is pleaded - significantly - that DCC provided a draft transfer document in 2009, six years after the Settlement Agreement. It is then denied that "the draft transfer document of 2009" complied with the terms of the Settlement Agreement. The specific pleading in this respect is important. Paragraph 7 reads as follows:
"It is denied that the draft transfer document of 2009 provided by the Plaintiff (and as pleaded at paragraph 7 and 8 of the Statement of Claim) in that it failed to expressly identify the Defendants as taking the property as equal tenants in common."
47. It is denied that DCC made numerous efforts to convey the Property or that those efforts were frustrated by Mr Lynskey and Mr Bermingham. It is also specifically denied that DCC has maintained the Property since 25 June 2003.
48. It is pleaded in the defence that DCC unnecessarily and without consultation with Mr Lynskey or Mr Bermingham, and without their agreement, removed a wall of the back of the premises and it is denied that those works were necessary or constructive.
49. There is a general denial that DCC suffered the loss claimed or any losses and DCC is put to proof of all losses claimed. At paragraph 20 of the defence there is the following plea,
"... It is specifically pleaded that paragraph 10 of the agreement of 2003 makes provision for the re-entering for hearing in case of a breach of proceedings JR 371 of 1998. There is no basis whether in the agreement in law or in fact for a Declaration vesting the premises in the full ownership of the plaintiff."
50. In the Counterclaim, the Defence is repeated and Mr Lynskey and Mr Bermingham seek a declaration that they are the beneficial owners of the Property. Damages are sought for breach of agreement, for negligence, breach of duty, and there is a claim for the return of the sum of £75,000 (or its Euro equivalent).
51. Some emphasis is placed by counsel for DCC on the fact that the only declaration sought is a declaration that they are entitled to beneficial ownership of the Property, and no order is sought for the transfer of legal title to them. I agree that this important.
52. By way of Reply delivered on 6 March 2020, DCC pleads that "insofar as the defendants maintain that the draft transfer document of 2009 did not comply with the agreement of 2003, which is denied, the said transfer document was a draft and it was open to the Defendants their servants and/or agents and/or legal adviser, to revert with any additions and/or amendments to the said transfer document, which they failed to do."
53. It is also pleaded that the DCC will maintain that the Draft Deed was appropriate in the circumstances. DCC denies any unnecessary works are completed at the Property. It is also pleaded that the works referred to were required to ensure the stability of the structure and are completed by the DCC Dangerous Building Section operating under the remit of the Local Government (Sanitary Services) Act 1964.
54. A notice of intention to proceed was delivered by DCC on 7 February 2022 and again on 20 June 2023.
55. On 20 July 2023 DCC filed a notice of discontinuance as against Mr Bermingham.
56. A notice of trial was then delivered on 29 April 2024.
57. When the trial ultimately commenced before me on 17 December 2024, an application was made by counsel for Mr Lynskey to adjourn the hearing. That application was opposed by counsel by DCC. For the reasons given in an ex tempore decision delivered on that date, the application for an adjournment of the trial was refused. The case was then heard over three days on 17, 18 and 19 December 2024.
Issues in dispute
58. While many different questions are addressed in the pleadings, and a full traverse is made by way of the Defence, the issue that actually falls for determination is a net one:
Did Mr Lynskey commit a repudiatory breach of the Settlement Agreement, entitling DCC to treat the Agreement as rescinded and at an end?
59. The factual basis of DCC's claim is that Mr Lynskey failed and refused to execute a deed of transfer at any time after 2008 and repudiated the Settlement Agreement. This is disputed by Mr Lynskey. Accordingly, I need to assess the conduct and action (or inaction) of Mr Lynskey with regard to the transfer of legal title to the Property post-2008.
The Hearing
60. During the hearing, evidence was given by Ms Bronagh Corry; Ms Clare Goldenberg; Mr Brian Lahiff and Mr Richard McCrae on behalf of DCC. Oral evidence was also given by Mr Lynskey. The following is a high-level summary of that evidence.
DCC Evidence
61. Ms Brona Corry is a senior executive officer with DCC and the purpose of her evidence was to prove the core documents that are relied upon by DCC in these Proceedings.
62. Ms Clare Goldenberg gave evidence as the architect in charge of derelict buildings at DCC. She explained how the figures showing what DCC had spent on the Property were arrived at, including invoices from contractors and engineers.
63. Mr Brian Lahiff, a structural engineer, gave evidence on the second day of the hearing regarding his inspection of the building to the rear of the Property in March 2015.
64. He had previously prepared a report based on that inspection of the so-called rear and middle buildings behind the Property, including his findings that they were at imminent risk of collapse and presented a danger to adjoining properties. His evidence was that the middle building should be demolished and his recommendation for securing the rear building also included its demolition. He also described the necessity to remove a boundary wall to the rear of the Property to make it safe. Mr Lahiff gave evidence that these works were completed by late 2015.
65. Mr Richard McCrae, a chartered engineer, was retained by DCC in September 2021 to inspect and advise on the Property.
66. He outlined the report he had prepared following that inspection summarising his findings at that time, including that the roof was in a perilous state, letting water in, and causing damage throughout the building. In that report, he identified that, if remedial works were not undertaken "...there would have been in a short period of time a significant loss of the original, irreplaceable historic structure. This would have included but may not have been limited to partial collapse of the rear elevation, the collapse of parts of the roof and the destruction of the cornices in the rear first floor room."
67. Under cross-examination, Mr McCrae confirmed "that it was very clear to see that the building was very near collapse" (day 2, page 32).
68. Following that report, he managed the contract on behalf of DCC for the carrying out of the necessary works to strengthen the roof structure, replace floors in various places in the building, rebuild and replace walls, render floors safe, repair cornicing, among other works to make the building safe and water-tight.
69. These works concluded in October 2023 and the cost of same was confirmed in the schedule of costs as € 788,957. The final inspection was carried out 12 months later, in October 2014.
70. Mr McCrae confirmed under cross-examination that his brief was to render the building safe, not to do a final report on the condition of the Property.
71. The following proposition was put to him by counsel for Mr Lynskey: "we seem to be all agreed the building was unsafe, we seem to be all agreed that there was significant work done at the behest of Dublin City Council" (day 2, page 30).
Evidence of Mr Lynskey
72. In his oral evidence, Mr Lynskey described the background to the matter from his perspective, including the circumstances of the acquisition of the Property, works done to maintain it, monies expended and related matters.
73. He also described the Works carried out pursuant to the Settlement Agreement, stating that he left the building in a good state; that the work done was extensive; that DCC interfered with the Works, and required more to be done than was agreed; and the Works cost some €142,000 to complete.
74. He expressed his interest in conservation and the protection of historic buildings such the Property and the plans which he and Mr Bermingham had for the development and use of the Property. Mr Lynskey's evidence was that he put in a planning application to the planning authority in DCC in 2007, but had no control over the Property since 2008 (save for entering to help to evict squatters on a number of occasions).
75. Mr Lynskey was adamant throughout his evidence that he never received or saw the Draft Deed.
Relevance of the Oral Evidence
76. Given the net issue that needs to be determined and the concise scope of the relevant factual dispute, many of the factual matters addressed by the witnesses at the hearing are not directly relevant to any issue that needs to be determined by me. This includes evidence regarding the history of the acquisition of the Property, its condition at different points in time; and the completion and sufficiency of the Works done by Mr Lynskey and Mr Bermingham after the execution of the Settlement Agreement.
77. A good proportion of Mr Lynskey's evidence falls into this category, particularly his extensive evidence about the Works that were done. DCC does not dispute that Mr Lynskey and Mr Bermingham did complete the Works; that they were certified to be complete. It could not be disputed that the Works took longer than anticipated, given the terms of the Settlement Agreement and the facts that emerged. I do not need to make any decision in this respect.
78. Accordingly, while Mr Lynskey did give forthright and credible evidence about his appreciation of the need for conservation of buildings such as the Property and his interest and experience in this area of endeavour, as well as about the monies and efforts expended in carrying out the Works, this evidence is simply not in dispute. It is also not relevant to the issues I have to decide.
79. A further tranche of the evidence given at trial is not agreed, but such disagreements as exist do not need to be resolved. This is true of much of the evidence given Mr Lahiff and Mr McCrae regarding the works done by DCC since 2008 and the necessity and cost of those works.
80. It was confirmed by counsel for DCC during the trial that no claim for damages is being pursued by DCC (day 3, pages 32 to 33). It is not therefore necessary to make any determination about the monies expended by DCC since 2008. In any event, given my decision that the legal title should properly remain vested in DCC, the works done by DCC were to a building owned by DCC and there is no relevant issue regarding same. I do not therefore need to make any determination related to the monies expended by DCC in securing or maintaining the Property or the reasonableness or necessity of the steps taken.
81. The only relevant factual question is the engagement between Mr Lynskey and DCC (or persons acting or purporting to act on their behalf) between 2008 and 2016.
Documentation relied on
82. The primary documentation relied upon at the hearing related to the engagement between the parties from 2008 to 2016 was contained in a core book of documents and largely comprised correspondence and notes of communications related to the Property.
83. No notice was served under section 15 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020; no discovery was sought or furnished in this case; the documents relied upon were not exhibited to affidavits in advance of trial; and there was no agreement between the parties with regard to the admission of documentation. For these reasons, DCC relied upon the evidence of Ms Corry to prove the documents relied upon.
84. Ms Corry accordingly gave evidence and confirmed that she had access to the files related to the Property which were held by DCC and that she had collated the core book from those files. She went through most of the documents in the core book in the course of her oral evidence. She also stated in evidence that the DCC employees and officers named in the documents were retired (day 1, page 94).
85. No formal general objection was made on behalf of Mr Lynskey to the admissibility or authenticity of the correspondence included in the core book.
86. This was subject to one specific exception. It was said that weight should not be attached to a letter sent by a Mr Turner who purported to act on behalf of Mr Bermingham on the basis it contained hearsay (day 1, page 72). The response by counsel for DCC was that the letter was not being relied upon as proof of the truth of its contents.
87. This objection was not elaborated upon or pressed by counsel for Mr Lynskey and I therefore do not need to make a determination in respect of it. In any event, the letter is not relied on for the truth of its contents and I do not propose to attach any weight to its content.
88. Other than this objection (and a general objection regarding the timing of their disclosure), there was no express challenge to the admission of the documents. There was also no meaningful challenge to the evidence of Ms Corry or the purpose for which it was given. The only point that arose from her cross-examination was that it was possible there may be further documentation held by DCC related to the Property which was not included in the core book. I do not believe that this is material, or detracts from the admissibility or authenticity of the documentation that was produced and proved by her evidence.
89. I am satisfied that the documentation - most of which is inter partes communications, or intended or attempted inter partes communications to solicitors who DCC believed were acting for Mr Lynskey at different points in time - have been sufficiently proved by an officer of DCC. Further, many of the documents were also put to Mr Lynskey and the content of several of them was admitted by him. I am satisfied the documents adduced and relied upon by DCC have been demonstrated to be authentic and admissible for the purpose for which they were tendered (which purpose was in most instances to show they were sent, not necessarily to show the truth of their contents). I will next consider this documentation and Mr Lynskey's evidence on aspects of it.
Evidence regarding communications between 2008 and 2016
90. Letters were sent by DCC to Walsh Warren & Co Solicitors on 7 November 2008, enclosing title documentation and confirming instructions to dispose of the Property to their clients. There were reminders on 27 January 2009 and 24 March 2009. A further letter to the same solicitors on 29 May 2009 enclosed the Draft Deed and addressed the question of stamp duty. A reminder followed on 14 July 2009.
91. On 15 July 2009, Colgan & Co Solicitors wrote to DCC stating his client was Mr Lynskey (in the subject line), acknowledging receipt of the letter of 29 May 2009 and stating that he had written to his client.
92. On 17 July 2009, Walsh & Warran confirmed in writing that Colgan & Co was now acting for Mr Lynskey.
93. On 1 September 2009, DCC sent the Draft Deed of transfer to Colgan & Co and requested a response "as a matter of urgency".
94. When asked in cross-examination whether this letter was sent to Mr Colgan (his then solicitor) on 1 September 2009 enclosing the Draft Deed for his approval, Mr Lynskey replied, "...Well that may be so but I certainly haven't seen it..." (day 2, page 141). He then explained some issues of ill health suffered by Mr Colgan while stating that he was not "trying to make excuses".
95. Colgan & Co. confirmed on 2 September 2009 that this letter was sent to Mr Lynskey "requesting him to attend at this office as soon as possible".
96. This letter was put to Mr Lynskey in cross-examination. When asked whether he attended at Mr Colgan's office, Mr Lynskey stated, "As far as I recollect I would have attended. Certainly I knew Mr. Colgan well. At no time did he tell me there was a contract or anything else to be signed in there" (day 2, page 142).
97. So Mr Lynskey accepted that Mr Colgan acted for him, that he attended at his offices and did not deny that the letters from DCC were sent to and received by Mr Colgan. The only question of contention was that Mr Lynskey said he was not told here was a contract to be signed.
98. There is a hiatus in the papers before me then until 1 June 2011 when a letter was received from Gibson & Associates as solicitors for Mr Lynskey referring to a "recent letter" (which I have not seen) and stating that they were contacting Mr Lynskey for his "up to date instructions". There were exchanges of correspondence between then and August 2011, including threats by DCC to take other actions if there was no progress and confirmation by Gibson & Associates that the correspondence from DCC was sent to Mr Lynskey.
99. There was a telephone conversation between the relevant law agent in DCC (Terence O'Keeffe) and Mr Lynskey, which is referred to in a letter to Gibson & Associates on 18 August 2011 and which appeared to concern questions about the Payment being held by DCC. DCC also wrote to Walsh Warrant & Co on that date stating that they were anxious to transfer the Property back to Mr Bermingham and Mr Lynskey.
100. On 23 August 2011, Gibson & Associates replied stating that all correspondence had been given to Mr Lynskey and that the letter of 18 August 2011 would be sent to him, but they had not received instructions.
101. When asked in cross-examination whether he received the DCC letter, Mr Lynskey's response was, "I can't say yes or no but I did attend their practice". He then said that Gibson & Associations did not act for him, rather "They just forwarded letters that you were sending them or DCC was sending them" (day 2, page 149).
102. While the capacity of Gibson & Associates to act for Mr Lynskey was challenged by him, he accepted - significantly - that they forwarded letters received from DCC and these letters included clear calls for Mr Lynskey to execute a deed to transfer legal title to the Property.
103. There appears to have been another significant gap in communications and then there was a telephone conversation with Mr Bermingham on 11 July 2014 and again on 14 July 2014. A letter was sent by DCC to Mr Bermingham on 6 August 2014, confirming those conversations, and repeating that the Draft Deed had been sent to Walsh Warren & Co. "some time ago." A further copy of the Draft Deed was enclosed and the letter asked that Mr Bermingham and Mr Lynskey "finalise matters in early course".
104. A letter from DCC on 26 August 2014 indicates that another telephone conversation took place on 13 August 2014, that Mr Lynskey and Mr Bermingham "were not sure" whether they had received a copy of the 6 August letter. Enclosed were a further copy of this letter of 6 August, together with another copy of the Draft Deed.
105. That letter is important as, in it, DCC again asks for matters to be finalised in "early course" and states unequivocally that the High Court Order had not been complied with and, failing hearing from them or their legal advisers within 21 days, the Proceedings would be re-entered to seek directions.
106. The next communication was a letter from Barry Healy & Company Solicitors dated 24 September 2014 in which it is stated that that firm acts for Mr Lynskey and Mr Bermingham. On 17 October 2014, Barry Healy & Company again wrote to DCC requesting a copy of all correspondence on file.
107. By letters dated 20 October 2014 and 30 October 2014, DCC responded, enclosing recent correspondence, the Court Order and the Draft Deed of transfer and noting that the matter needed to be "brought to a conclusion as soon as possible".
108. On 30 October 2014, Barry Healy & Company requested a copy of all correspondence on the file and requested that no action be taken until it had been reviewed and advices furnished to their clients.
109. DCC replied on 11 November 2014 refusing to provide all correspondence, given its copious volume, but offering to reply to any specific information deficit. A response by return was requested.
110. There was no response and a further letter was sent by DCC to Barry Healy & Company on 28 November 2014 and 1 December 2014 (the latter was also sent to Mr Lynskey and Mr Bermingham at 102 Phibsborough Road in Dublin) again enclosing the draft deed and stating that, unless the deed was signed within 14 days, the Agreement was going to be treated as at an end and DCC would take full possession of the Property.
111. There was a response from Barry Healy & Company on 3 December 2014 saying that they needed all correspondence to be able to provide legal advice and that
"we have been advised by Mr Lynskey and Mr Bermingham that there are a number of legal matters to be considered before the deed of transfer can be reviewed."
112. DCC responded on 8 December 2014 pointing out that the full file was in the custody of the Defendants, who initiated the Judicial Review Proceedings; complaining about the lack of co-operation in transferred the Property into their clients' names; noting that the Property is again falling into disrepair; and repeating the request for an executed transfer deed. That letter records surprise that legal matters regarding the deed were being raised, as the Court Order clearly set out what was agreed.
113. The next letter is a DCC letter of 16 January 2015 to Mr Lynskey and Mr Bermingham stating that DCC is taking possession of the Property as they failed to comply with the terms of the Court Order and noting that the DCC had no choice but to proceed in this manner. It is said that the €75,000 Payment will be released to the Derelict Sites Office to pay fines and penalties outstanding. This is repeated in a letter to Barry Healy & Company and to Mr Lynskey and Mr Bermingham directly on 25 February 2015 in which it is stated that Mr Grimes is acting as receiver over the Property.
114. The next letter is from Barry Healy & Company dated 26 February 2015, in which it is stated that they firm is no longer acting for Mr Lynskey and Mr Bermingham and requesting again that all correspondence be sent to them. In that letter, it is stated that Mr Lynskey and Mr Bermingham have advised that "there are a number of legal matters to be considered before the deed of transfer can be reviewed..."
115. Mr Lynskey gave the following evidence-in-chief when asked about his dealings with Barry Healy Solicitors:
"As we found out about the transfer deed, there are indeed queries that need to be answered and justifiable before -- and I don't think there is any legal person within this forum here, they would advise me or John Bermingham to sign that deed as is because it is an open-ended deed, that would leave us in a very precarious position going forward if DCC decides to add something else on to it or take something off it which they had been doing up to now on various things. So we weren't going to commit ourselves to signing a deed that we didn't know that there was a beginning and an end to" (day 2, pages 123-124).
116. The admission that he "found out about the transfer deed" is important.
117. When asked about a letter sent by Barry Healy & Company (which firm Mr Lynskey accepted did act for him and Mr Bermingham) on 26 February 2015 which referred to the Draft Deed, Mr Lynskey said, "I've never seen the deed of transfer. But I know they acted for us but I wasn't privy to all the letters that was written. Again I was in and out of the country" (day 2, page 164).
118. This evidence demonstrates that Healy & Company did act for Mr Lynskey and, as his agent, that firm received the Draft Deed and corresponded on his behalf, even though he was not involved in every aspect of their representation of himself and Mr Bermingham.
119. There is another apparent gap in contact and, on 30 September 2015, DCC wrote stating that there was no alternative but to dispose of the Property on the open market under the Derelict Sites Act and that this would be done within two months.
120. There was no further correspondence or evidence of any engagement after that. The Proceedings then issued on 5 October 2016.
Assessment of the Evidence of Mr Lynskey
121. During his oral evidence, Mr Lynskey agreed with the proposition put to him in cross-examination that "...the last step was to get the transfer signed so the legal title could be vested in you and Mr. Bermingham" (day 2, page 139).
122. He was then adamant in his evidence that he never saw the Draft Deed. However, this needs to be considered in light of certain other evidence.
123. First, Mr Lynskey does not dispute that the Draft Deed was sent by DCC by way of correspondence to various solicitors acting or purporting to act for him, and gave evidence that such correspondence was forwarded to him by at least some of those persons.
124. Second, he stated in evidence that he attended meetings with several solicitors in relation to correspondence with DCC.
125. Third, he referred in his evidence-in-chief to finding out about the transfer deed, in the context of being represented by Barry Healy in late 2014 or early 2015. His own evidence was therefore that he was aware of the Draft Deed.
126. Fourth, his insistence that certain firms were not instructed by him is not material, particularly because, on his own evidence, even firms which were not instructed by him did send him the correspondence received from DCC. For example, he disputed that Gibson & Associates acted for him but then stated in evidence that "They just forwarded letters that you were sending them or DCC was sending them" (day 2, page 149). He therefore accepted that he received correspondence even from the firms that were not acting for him. That is the material fact.
127. Fifth, Mr Lynskey accepted it was possible Mr Bermingham saw the Draft Deed (day 2, page 102), Mr Bermingham being the person he described as largely responsible for instructing and meeting with solicitors (day 2, page 165). Indeed, it was the consistent position of Mr Lynskey that he would not "have been hands on" (day 2, page 165). This is important.
128. Sixth, there is a question of pleading which is highly relevant here. Paragraph 7 of the Defence delivered on 4 February 2020 includes a plea that Mr Lynskey did receive the Draft Deed in 2009:
"It is denied that the draft transfer document of 2009 provided by the Plaintiff (and as pleaded at paragraph 7 and 8 of the Statement of Claim) in that it failed to expressly identify the Defendants as taking the property as equal tenants in common."
129. When asked in cross-examination why this was pleaded, Mr Lynskey answered only, "I don't know" and repeated that "Until this court hearing I had never seen that document" (day 2, page 147).
130. This answer is extremely difficult to marry with the fact that instructions were given in February 2020 to draft the Defence on behalf of both Mr Bermingham and Mr Lynskey on the basis, not just that the Draft Deed was provided in 2009, but on the basis of the specific content and provisions of that Draft Deed.
131. Seventh, Mr Lynskey did not dispute that correspondence was sent by DCC directly to him at his personal home address (including correspondence which enclosed the Draft Deed). On the contrary, he specifically confirmed - in evidence-in-chief - that the address at which DCC wrote to him directly on 6 and 26 August 2014 (enclosing a copy of the Draft Deed) was his address:
"And they are sent to Mr. Bermingham and Mr. Lynskey at 102 Phibsboro Road, 102 Phibsboro Road, whose address is that?
A. That is my address.
Q. That is your address?
A. That is my address, yes." (day 2, page 118).
132. There was no qualification to this and no suggestion that the letter or its enclosure were not received.
133. All of the foregoing points make it difficult to understand how Mr Lynskey could have avoided physical sight of the Draft Deed. However, I do not need to decide as a matter of fact whether this is what occurred. I am satisfied from the evidence presented that DCC went to considerable lengths from 2008 to 2016 to attempt to have the legal title to the Property transferred to Mr Lynskey (and formerly Mr Bermingham). I am also satisfied that it has been proved that DCC did prepare a draft deed in 2009 and that a version of this deed was sent repeatedly to Mr Lynskey, Mr Bermingham and various solicitors acting or reasonably believed be acting on their behalf and that the correspondence was forwarded to Mr Lynskey and discussed at meetings with him. The legal advisers acting for Mr Lynskey in these Proceedings clearly had instructions as to the receipt and specific content of the Draft Deed as of the date of delivery of the Defence (February 2020).
134. The fact is that, if Mr Lynskey never actually saw the Draft Deed, this can only have been the result of his persistent failure or refusal to open or review a large volume of repeated correspondence which was directed to him and various solicitors acting or purported to act for him at many different addresses over an eight-year period. This is certainly not something for which DCC can be held responsible.
135. It is also notable that Mr Lynskey changed solicitor (or apparent solicitor) many times. No less than eight different firms of solicitors have corresponded with DCC or acted in litigation ostensibly on behalf of Mr Lynskey and/or Mr Bermingham.
136. David M Turner appeared to act in relation to the making of the Vesting Order in 1997; Walsh Warren & Co appear to have been involved in the Judicial Review Proceedings but came off record in 2008 (Mr Lynskey disputes that he instructed them but he states he "went along with" the proceedings); Colgan & Co. wrote on their behalf from July 2009; Gibson & Associates were acting for them in June 2011; Barry Healy & Co then wrote from 24 September 2014.
137. Cormac O'Ceallaigh & Co Solicitors were named as the solicitors acting tor the Defendants when the Defence was filed on 4 February 2020 (although Mr Lynskey was adamant he never "signed up to" being represented by Mr O'Ceallaigh).
138. Shortly afterwards, on 20 February 2020, Cormac O'Ceallaigh & Co Solicitors filed a motion to come off record as solicitors for Mr Lynskey and Mr Bermingham. This was grounded on the affidavit of Mr O'Ceallaigh, in which he swore that there was a complete breakdown of the solicitor client relationship; that he had difficulty getting instructions from Mr Lynsky and Mr Bermingham; and that they would not take accept various advices that he had given them.
139. On 21 August 2024, Sinead Ivory Solicitors filed a motion to come off record on behalf of Mr Lynskey. This was grounded on the affidavit of Ms Ivory who states that she came on record for Mr Lynskey on 13 October 2022 on the basis she could not get clear instructions from him in relation to the matter.
140. On 9 October 2024 Yates Vaid & Co. solicitors filed a notice that they had been appointed as solicitors Mr Lynskey in this matter.
141. This is an unusually high turn-around of legal representation, but even if Mr Lynskey never saw the Draft Deed despite apparent engagement (or attempted engagement) with eight different firms of solicitors, this does not advance his position in these Proceedings for several reasons.
142. One is the simple reason that a party to an agreement cannot avoid the obligations imposed by that agreement by simply refusing to open correspondence for eight years and then claiming ignorance of its contents. Similarly, if Mr Lynskey chose to delegate responsibility for all dealings with solicitors and the Property to Mr Bermingham (as appears from his evidence), he cannot now complain about or seek to deploy his own inactivity or failure to pay attention to such matters.
143. Another conclusion that I regard to be inescapable is that, even if Mr Lynskey never physically saw the Draft Deed, he knew about its existence, content and about the repeated attempts of DCC to have title to the Property transferred to him. This is apparent from his own oral testimony including his evidence-in-chief. His insistence that he never saw the deed is somewhat semantic.
144. More importantly, Mr Lynskey was asked repeatedly whether he himself made any demand for the conveyance of legal title to the Property to him over the 15 years since 2009. He could not answer or point to any evidence of such a demand or even a request or enquiry.
145. While each of the foregoing points makes it impossible and unnecessary to attach any weight to Mr Lynskey's evidence that he himself did not see a copy of the Draft Deed, another point of far more striking importance emerged from his oral evidence.
146. Mr Lynskey gave evidence that, by 2010 (or 2014 at the latest) he had decided not to accept the transfer of legal title to the Property as required or envisaged by the Settlement Agreement because of the deterioration in the Property's condition.
147. He states that there was a fire at the Property in 2010 and damage by squatters thereafter and he continued (day 2, page 152):
"... we were informed that there was damage done in 2009/2010 in the property... So now you're expecting me to sign up to a property that there was possibly at that time there was talks of £50,000/60,000 worth of damage done, all while the property was in the care of DCC?
Q. So you're saying you didn't want the legal title back at that stage?
A. That is not true, I didn't say that, it would have to be changes to it."
148. It is unclear what he is saying needed to be changed.
149. He continued (day 2, page 153):
"The legal title had changed, the deed of thing was different than when it should have been signed in 2008. There was damage done to the property, we never got to amend this deed of title, we never got to see the deed of title..."
150. In a similar vein, he said (day 2, page 154):
"Q... you didn't want the legal title vested in you?
A. That is not true. We didn't want a damaged - because from the deed of title in 2008, when it should have been at the court -- which we possibly would have signed -- to the deed in 2010 would have been different, and considerably different, with the damages that was done to the property then."
151. When the letter of 1 December which was sent to him personally requiring the execution of the Draft Deed (and enclosing a copy of that deed) was put to Mr Lynskey, he said (day 2, pages 157-158):
"I don't know what part of this you don't understand. The condition in 2008 and the condition of the property in 2014, and you expect us to sign the deed of transfer with, at this time in 2014 there was probably a hundred thousand pounds worth of damage done to the property, and you expect, as a legal man, me to go in and sign off on that?"
152. When asked whether he had issued demands for the transfer of legal title, he posed the question, "Why would we do it? The property has deteriorated" (while also stating he did want it back) (day 2, pages 161-162).
Findings on the Evidence
153. It was plain to me from the evidence given by Mr Lynskey that, by 2010, or 2014 at the latest, he had decided that he would not execute a deed of transfer as required by the Settlement Agreement. Given his adamant evidence that he did not physically see the Draft Deed at any time before the issue of these Proceedings, he could not and did not say that this decision was based on the content or terms of the Draft Deed. Rather, it was an outright decision not to accept a transfer of legal title of the Property.
154. While he said in his answers under cross-examination that he did still want the Property, but there would need to be "changes", this was not explained. The reference to the need for "the deed" to be "different, and considerably different", is very difficult to reconcile with his insistence that he never saw the Draft Deed. Rather, it reinforces the conclusion that, even if he never saw a copy of the Draft Deed, he knew of its existence and content but would not accept a transfer of title to the Property without substantive changes beyond what was agreed in the Settlement Agreement.
155. It is also notable that, while Mr Lynskey in his evidence focussed on the condition of the Property as the reason for his non-execution of any transfer deed, the case pleaded in the Defence (¶7) was that the Draft Deed was not suitable because it did not refer to Mr Lynskey and Mr Bermingham as equal tenants in common. This was not referred to in evidence and there is an unexplained contradiction between his evidence and pleadings on this point.
156. Whatever the reason (and I do not need to decide what the reason was), it is apparent to me from the evidence as presented at trial that Mr Lynskey did not put forward any deed of his own and he did not make any attempt, demand or even request to have legal title to the Property transferred to him in any form or at any time after the completion of the Works.
157. More fundamentally, it emerged from his evidence that Mr Lynskey had in fact decided that, owing to the deterioration in the condition of the Property, he was not willing to, and would not, execute a transfer of legal title to the Property in accordance with the Settlement Agreement.
158. Against the background of these factual findings, I will next consider the legal submissions made on behalf of the parties.
Assessment of the Parties' Legal Submissions
159. DCC delivered written legal submissions in advance of the hearing. Mr Lynskey did not do so. Both parties made oral submissions on the third day of the hearing. The following topics were addressed.
Purpose of the Settlement Agreement
Submissions
160. The position of DCC (in written and oral legal submissions) was that it was the clear common intention of the parties that the legal title to the Property would be vested in Mr Lynskey and Mr Bermingham. It was said that the fundamental purpose of the Agreement was to undo the Vesting Order and return legal ownership to Mr Lynskey and Mr Bermingham and that it was never intended that those individuals would retain a beneficial interest in the Property, with DCC looking after it on their behalf.
161. By contrast, the Counterclaim as pleaded only seeks a declaration that Mr Lynskey is entitled to beneficial title and does not seek an order related to the transfer of the legal title to the Property. However, no factual or legal basis for that claim was advanced at trial. In fact, counsel for Mr Lynskey contended in closing submissions that Mr Lynskey was seeking an order that he was the full owner, legally, equitably, beneficially, of the Property.
Assessment
162. While it is not appropriate to seek to expand the reliefs sought in closing oral submissions in that manner, it does demonstrate that Mr Lynskey is no longer seeking to retain beneficial title alone and it is now seemingly agreed that the objective of the Agreement was to transfer full title to Mr Lynskey and Mr Bermingham.
Implied Term
Submissions
163. DCC's case was that, while the obligation to transfer title was an obligation imposed on DCC under the Settlement Agreement, it must be an implied term of the Settlement Agreement that Mr Lynskey (and formerly Mr Bermingham also) would agree and accept an appropriate deed of transfer to ensure legal title to the Property could be vested in them. It was said that the clause would otherwise be unworkable.
164. Reliance was placed on the legal principles applicable to the implication of contractual terms as addressed in Tradex (Ireland) Ltd v. Irish Grain Board [1984] 1 IR pages 12-15; Sweeney v. Duggan [1997] 2 IR 531 and Flynn v. Breccia [2017] IECA 74.
165. Counsel for Mr Lynskey contended that, while there was no dispute about the legal principles governing the implication of terms, there was too much uncertainty about the terms sought to be implied here. It was also said that an implied term cannot contradict an express term (reliance for this was placed on Sweeney v. Duggan [1997] 2 IR 531 at page 549). It was not clear what express term was referred to.
Assessment
166. I agree with counsel for DCC that it was a necessary implied term of the Settlement Agreement that Mr Lynskey (and formerly Mr Bermingham) would engage and co-operate with DCC in relation to the transfer of legal title to the Property and would execute an appropriate deed to provide for the transfer of that legal title, as required and envisaged by the Agreement. Given the very concise terms of the Settlement Agreement, the transfer itself can only have been effected by a similarly straightforward document with no terms or conditions not expressly provided for in the Settlement Agreement.
167. On that basis, I believe that the implied term for which DCC contends falls squarely into the category of terms which is so obvious that it goes without saying, a duty which a bystander would say "of course" must arise and rest on Mr Lynskey and Mr Bermingham (see Tradex (Irl) Ltd. v. Irish Grain Board [1984] IR 1 at 15 and Flynn v. Breccia [2017] IECA 74 at ¶77).
168. The only answers to this point that were attempted by counsel for Mr Lynskey were that an implied term cannot be uncertain and cannot clash with an express term. While these propositions are evidently correct as a matter of law, I can see no express term that is inconsistent with the implied term contended for and none was indicated in submissions. I am also satisfied that, given the nature and provisions of the Settlement Agreement, which referred in bald terms to the "transfer" of "the premises", and provided for no further conditionality, it cannot be said that an implied term that the parties would agree and execute the appropriate and necessary transfer is lacking in certainty. The implied term is simply a term that is necessary to ensure the transfer - which can only be done with the participation of both sides - could in fact be effected.
Repudiation of the Settlement Agreement
Submissions
169. The position of DCC is that the failure and refusal by Mr Lynskey to engage in relation to the execution of the Draft Deed was in breach of the Settlement Agreement and that DCC was therefore entitled to treat the Agreement as at an end. It is said that there was a complete repudiation of the Agreement and that it was rescinded as of 14 days from 1 December 2014 (the letter sent by DCC on that date having stated that it would be treated as rescinded if the deed was not executed within 14 days).
170. It was also emphasised by DCC that Mr Lynskey in his evidence stated that he did not want to take the Property in its then condition in 2010 or 2014, but failed to explain why he did not execute the transfer sooner and, in any event, there is no such "out" under the Settlement Agreement.
171. The response on behalf of Mr Lynskey was to challenge the steps taken by DCC. It was said that there was no evidence that the necessary form of contract had been prepared and that the DCC failed to take proper steps to transfer the Property. There were a number of reasons given to support this proposition. For example, it was said by counsel for Mr Lynskey that the "transfer" of the Property would involve a number of different steps, not just the execution of a deed of transfer. He stated that a normal conveyance is a complicated process that involves preparation, instruction, title deeds being prepared, verification of title, drafting of contract for sale, due diligence and title investigation.
172. He also pointed out that the preparation of the contract of sale was the responsibility of DCC and that the Draft Deed circulated was a basic boiler plate deed and was circulated as being "subject to contract". He states there was never an exchange of contracts as DCC never prepared an actual contract of sale. He noted that clause 9 of the Settlement Agreement refers to the transfer of "the premises" and does not refer to a transfer deed. It was also pointed out that the Draft Deed in the core book is dated 2014, whereas it is said that this document was sent to Mr Lynskey's solicitors in 2009.
173. There was an objection by counsel for DCC to the introduction of conveyancing practice in closing oral submissions, with no expert evidence to support it and no prior indication that this case would be made.
174. By way of reply, counsel for DCC then pointed out that there was no provision in the Settlement Agreement for any of the steps identified; that these apparent complaints had not been previously raised in pleadings, evidence, correspondence or otherwise; if Mr Lynskey wanted specific performance of a transfer, DCC could not require the interposition of various additional conveyancing steps; and that the Property was registered and there was no need to go behind the registered folio.
175. He made the submission that the argument that the Draft Deed is insufficient to transfer title does not arise on the evidence or the case as presented.
Assessment
176. Dealing first with the submissions made on behalf of Mr Lynskey about the alleged inadequacy of the Draft Deed and the complexity of the conveyancing process, these contentions taken at their height provide no answer to the simple fact that there was ample evidence of attempts by DCC to transfer title and no evidence of any engagement or attempts by Mr Lynskey towards that end. These findings of fact have already been made.
177. I simply do not accept that Mr Lynskey can seek to advance a case based on the insufficiency of the attempts by DCC to transfer title to him, given the facts as found above and particularly his own evidence that he would not accept a transfer of legal title owing to the condition of the Property in 2010 and 2014 without unspecified "changes".
178. I also accept the points made by counsel for DCC that there is nothing in the Settlement Agreement which addresses any further conveyancing requirements, and that the fact that ownership of the Property is registered on the Folio 123103F greatly simplifies matters.
179. I note the objection raised by counsel for DCC to these points being first raised in closing oral submissions. I do regard it as inappropriate for a new series of defences to be launched in the manner attempted, with no evidence or pleadings to support them. However, given my over-arching conclusion that the points sought to be made are lacking in merit, I reject the conveyancing points made on this ground rather than on a technical basis.
180. I am satisfied that Mr Lynskey did repudiate the Settlement Agreement.
Version of the Draft Deed
Submissions
181. A complaint is made by counsel for Mr Lynskey about the terms of the Draft Deed itself, and the fact that the Draft Deed included in the core book refers to the year 2014, but is stated by DCC to have been sent in 2009. There is an apparent dating anomaly in the core book of documents in this respect.
Assessment
182. I am satisfied that this is not a point of any significance, given the multiple times a draft deed was circulated by DCC. The issue is not whether one version or another of a deed of transfer was received at a certain point in time; when the version that appears in the core book was in fact sent; or the content or terms of any specific draft: rather the issue is the response (or lack thereof) to any of the multiple times a draft deed was sent by DCC, regardless of the specific content of that draft. Indeed, the Defence pleaded by Mr Lynskey (¶7) refers to a deed from 2009.
183. Accordingly, I do not need to decide whether the version of the Draft Deed that was relied upon during the hearing was the same version that was sent to Mr Lynskey's solicitors in September 2009 or on any other specific occasion. The issue is whether Mr Lynskey failed or refused to engage or execute any deed or contract to transfer legal title to the Property.
184. Indeed, Mr Lynskey's insistence that he never saw the draft deed makes this more of a non-issue. Even if this was a point I needed to determine (which I do not believe it is), the critical fact is that there was no evidence before me and no basis to form the view that there were materially different versions of the Draft Deed circulated by DCC during that period. I do not believe this point is one of any moment.
Alleged Defect in the Draft Deed
Submissions
185. A specific criticism of the Draft Deed that was made by counsel for Mr Lynskey (and the only point pleaded in the Defence about the Draft Deed) is that it fails to refer to Mr Lynskey and Mr Bermingham as tenants in common (as envisaged by the Settlement Agreement). Counsel for DCC points out that there was no attempt to engage with the DCC about the content of the Draft Deed and that any such points could have been, but were not, raised.
Assessment
186. I do not believe this point can or does advance the position of Mr Lynskey, who consistently said he never saw the Draft Deed. There was ample opportunity to engage with DCC on the wording of the Draft Deed, but no such attempt was made.
187. On the basis of his oral evidence, I am satisfied that Mr Lynsey had in any event, determined by 2010 (or 2014 at the latest) that he would not execute a deed of transfer owing to the condition of the Property. The evidence (documentary and oral) does not support the attachment of any relevance to the omission of the words "tenants in common" from the Draft Deed. Indeed, the Defence was the first time this point appears to have been made and it was not then pursued or supported by the evidence.
Henderson v. Henderson
Submissions
188. Submissions were made by Mr Lynskey about the strong public policy in the settlement of proceedings. He cited Greencore Group plc v. Murphy [1995] 3 IR 520. Related submissions were made about the rule in Henderson v. Henderson (1843) 3 Hare 100 and cases such as Mulrooney v. Shee [2019] IEHC 822; Carroll v. Ryan [2003] 1 IR 309; and Carthy v. Boylan [2022] IECA 145 were referenced as authority that a compromise in earlier proceedings precludes the later raising of issues that could and should have been raised in those prior proceedings.
Assessment
189. Counsel for DCC did not understand how these points are relevant here, and nor do I. These submissions made on behalf of Mr Lynskey are devoid of merit. The rule in Henderson v. Henderson and the public policy of encouraging settlement have no relevance whatsoever to the issues that arise in these Proceedings and which require determination by me. There could have been no question of DCC challenging the failure of Mr Lynskey to complete the Settlement Agreement or his failure to comply with provisions of that Agreement in the Judicial Review Proceedings, before it was executed. The points made in this respect are nonsensical.
Re-entry of Judicial Review Proceedings
Submissions
190. It was said on behalf of Mr Lynskey that any issues about interests in the Property should have been raised in the Judicial Review Proceedings and that DCC should not have issued these Proceedings in 2016 but should instead have applied to re-enter the Judicial Review Proceedings. He referenced the fact that clause 10 provides for the re-entry of the judicial review proceedings.
191. In reply, counsel for DCC submitted that the Defendants did have the right to re-enter the Judicial Review Proceedings if the Settlement Agreement is at an end, and DCC would then defend those Proceedings. Reliance was placed on the wording of clause 10 of the Settlement Agreement which states that "either party shall be at liberty to treat the agreement as at an end" in the event of a breach.
Assessment
192. I accept the position of DCC in this respect. Mr Lynskey may seek to re-enter those Proceedings, if he so wishes, and DCC will defend them, but DCC is not bound to take that course of action. The provision in the Settlement Agreement is a permissive one only ("the other party shall be at liberty to treat the agreement as at an end in which case the proceedings may be re-entered for hearing") and does not preclude the application for the reliefs sought in these Proceedings.
The Payment
193. With regard to the Payment (€75,000) that was held in an interest-bearing account since 2003, counsel for DCC noted that the status and intention of the payment was unclear and that the rescission of the Agreement may have an impact on the rights of the parties with regard to that sum (day 3, page 37).
194. Counsel for Mr Lynskey agreed that there is a lack of clarity and some inconsistency regarding the purpose of that Payment and noted that there may be a basis for those monies to be returned to Mr Lynskey in the event of the rescission of the Agreement.
195. There are two relevant factors to weigh in this respect. First, I accept Mr Lynskey's evidence that he did spend considerable resources and time in carrying out the Works and they clearly took longer than was anticipated or expected. This is not in dispute. Second, the Payment was made and remains in an interest-bearing account. There is some uncertainty as to the purpose of the Payment, but I am satisfied that it was made at least in part in consideration for the transfer of the legal title to the Property. This is confirmed in the Draft Deed prepared by DCC itself (see ¶34 above).
196. For these reasons, and on the basis of the submissions made by the parties at the hearing, I am of the view that the correct and equitable outcome is that DCC is entitled to treat the Settlement Agreement as at an end and that the Payment should be returned to Mr Lynskey. I am conscious that Mr Lynskey stated in his evidence that he had paid monies to the estate of the late Mr Bermingham related to the interest in the Property (day 2, page 162) and I consider that it would be equitable that Mr Lynskey recover the monies that were paid pursuant to the Settlement Agreement.
Miscellaneous
197. I would note in passing that clause 9 does qualify the obligation of DCC to transfer legal title such that it only arises "If the works referred to in Appendix 1 are completed within the 4 month period allowed..."
198. Neither party placed any emphasis on this point, but, for the avoidance of doubt, DCC could have sought to avoid the obligation to transfer legal title on the basis of a strict, literal interpretation of clause 9 of the Agreement, as the Works took considerably longer than 4 months. However, the clause must be read in light of the Agreement as a whole and its overriding objective, which was to transfer title to Mr Lynskey and Mr Bermingham. Given the four-month limitation could enure only for the benefit of DCC, it was open to DCC to waive this strict limitation of four months and it clearly did so by repeatedly circulating a draft deed for execution years after the Settlement Agreement was entered, allowing further time for that execution to take place.
199. Furthermore, it emerged during Mr Lynskey's evidence that the parties agreed certain variations and amendments to the Works during the period between 2003 and 2008 (day 2, pages 85 to 86). This evidence was not challenged. The only reasonable interpretation of the Agreement read as a whole would appear to require a concomitant amendment to the time limit specified in clause 9. No point was taken in respect of this clause by either party, and it was not the subject of evidence or submissions. I do not therefore consider it further, save to note that I do not believe it in any way alters the correct analysis of the Agreement or the outcome decided in this Judgment.
Conclusions
200. On the basis of the findings of fact and law contained in this Judgment, Mr Lynskey did commit a repudiatory breach of the Settlement Agreement, which entitles DCC to an order rescinding that Agreement and treating it as at an end. The effect of this is that DCC is entitled to retain legal title to the Property and Mr Lynskey has no interest in it.
201. Given the rescission of the Agreement, I consider that the appropriate and equitable outcome is that the sum of €75,000 which was paid pursuant to the Settlement Agreement and which the Draft Deed states was paid by way of consideration for the transfer of legal title, should be returned to Mr Lysnkey.
202. Given the findings made in this Judgment, I am of the provisional view that the correct order as to costs is that Mr Lynskey should be liable for the costs incurred by DCC in these Proceedings. Should either party wish to contend for a different costs' order, I would invite them to correspond with the other side by 6 May 2025; exchange written submissions (of no more than 1,500 words in length) by 15 May 2025; and I will list the matter before me at 10.30am on 20 May 2025 for the purpose of making final orders.