The High Court has granted Eirebus Limited summary judgment for €100,000 against Tony McConn, over his failure to arrange the transfer of a bus route licence to Flybus Transport Limited. The order followed an application for judgment on a summary summons; the court concluded that Mr McConn had not shown a fair or reasonable probability of a real defence.
Eirebus claimed the money represented its subscription for 100,000 redeemable preference shares in Flybus. It said the payment was made in connection with a January 2009 shareholders’ agreement under which Mr McConn was to take the necessary steps to transfer or reissue a licence for a scheduled service between West Dublin and Dublin Airport to Flybus. Mr McConn did not dispute that he had taken no such steps.
The judgment records that the licence was held by Dualway Coaches Limited, over which Mr McConn had a beneficial interest. The agreement provided for payment to Dualway of research and development costs, capped at €150,000, once the licence was successfully issued in Flybus’s name. Mr McConn argued that agreement or payment of that sum was a condition precedent to his obligation. The judge rejected that reading, finding it was a condition subsequent.
The court also rejected Mr McConn’s argument that Eirebus was not a party to the agreement. Although its opening wording named Mr McConn, Patrick Kavanagh and Flybus, the agreement defined shareholders by reference to names in its first schedule, which included Eirebus. The judge also relied on a deed of adherence signed and sealed on Eirebus’s behalf. He found the agreement, read as a whole, made Eirebus a party with the shareholders’ rights and obligations.
Other proposed defences concerned the timing of a demand for payment, past consideration, alleged losses or counterclaims relating to Flybus’s bus operations, and the use and form of the summary summons. The court found none established an arguable defence. It said any apparent claim about the services or receipts would logically belong to Flybus, which was not a party to the application, and described the relevant assertions as unsupported by evidence of facts that could amount to a defence.
The judge treated Eirebus’s claim as one for quasi-contractual or restitutionary relief based on an alleged total failure of consideration, rather than damages for breach of contract or misrepresentation. He held the claim could proceed by summary summons. The court awarded €100,000 in summary judgment. The judgment’s concluding order does not specify interest or costs, although Eirebus had sought both. The judge expressly left open the nature and scope of the court’s jurisdiction to grant restitutionary relief.