The Court of Appeal has refused Phoenix Rock Enterprises’ appeal against the High Court’s refusal to block the marketing or sale of about 27 acres at Clondoogan, Summerhill, Co Meath, pending trial of its claims against George Hughes.
The company, which trades as Frank Pratt & Sons, says Hughes offered by telephone on 11 April 2023 to sell the land for €1.2 million, subject to planning permission. Its solicitors wrote on 20 April to accept the alleged offer, saying a planning consultant had been arranged and asking for contract documents. The letter was received on 24 April. The company says Hughes told it the following day that he would put the property up for tender instead.
The Court of Appeal upheld the High Court decision refusing the injunctions. It assessed whether the company had an arguable case for a permanent injunction after trial; it did not decide the underlying claims at trial. The court concluded the company had not shown an arguable case that it could obtain specific performance of the alleged sale agreement.
The land is owned in six equal shares by Hughes, his wife and their four children. The company had not sued the other five co-owners, and it was not alleged that they authorised Hughes to sell their interests. The court said an order requiring them to convey their shares would unjustifiably interfere with the rights of people who were not parties to the proceedings. Hughes, as one of the six owners, could not alone transfer the whole property.
The court also found the alleged agreement uncertain because it specified no time limit for obtaining planning permission, which it treated as an essential term. The company accepted there was no written note or memorandum satisfying section 51 of the Land and Conveyancing Law Reform Act 2009 and relied instead on part performance. The only act it relied on was engaging a planning consultant. The court said the evidence placed that arrangement before the alleged agreement was concluded, so it could not support part performance.
The court further held that damages would be an adequate remedy for the company’s commercial interest in exploiting sand and gravel on the land. It said the balance of convenience strongly favoured refusing the injunction, including because the other co-owners would not be covered by the company’s undertaking as to damages.
The appeal was refused and the High Court order affirmed. The judge’s preliminary view was that Hughes should receive the costs of the appeal. The company was given ten days from delivery of the judgment to request a short hearing if it wished to contest costs; the judgment did not make a final costs order.