The Court of Appeal has dismissed Philip Cleary’s appeal against orders requiring him to perform a revised option agreement with Solas Éireann Development Limited and execute a lease of land for a proposed solar park in County Wexford.
In a judgment delivered on 7 November 2023, Mr Justice Allen said the appeal had no substance. Justices Pilkington and Butler agreed. The appeal concerned the High Court’s ruling that the revised agreement remained valid and binding, and its later orders for specific performance and execution of the lease.
Cleary had granted the company an option in 2017 to lease part of his farm for 30 years. The agreement allowed the company to extend the option period in specified circumstances. In August 2020, the parties signed an addendum increasing the period and allowing further extensions. Cleary later disputed the addendum’s validity, including on grounds concerning its execution and the date written below his signature.
The High Court rejected his challenge after a four-day hearing. It found that the original option remained in force when the addendum was signed, that there was no legal requirement for the addendum to be signed in a solicitor’s office or witnessed by a solicitor, and that the date discrepancy did not invalidate it. The court also rejected his counterclaim, including his claim for rent arrears. After the company exercised the option in March 2023, the High Court ordered Cleary to perform the agreement and execute the attached lease.
On appeal, Cleary focused on an alleged improper relationship between the company and a solicitor who had acted for him in 2017, and on the company’s payment of a contribution to his legal costs. The Court of Appeal said those issues had not been raised as a basis for challenging the original agreement in the High Court, and that examining the solicitors’ role would require reopening evidence. It also said the appeal could not introduce a case that had not been made at trial.
The judgment noted that the High Court had found the company paid €2,500 plus VAT towards Cleary’s costs, and that Cleary had sworn he received the money. The Court of Appeal said there had been no suggestion of irregularity when the payment was made or during the trial.
Mr Justice Allen added that it was not clear to him that service of the March 2023 option notice had been properly proved, or that the company was entitled to specific performance of a lease contract that came into existence after proceedings began. But those matters were not grounds of appeal: Cleary’s appeal challenged whether the option still existed when exercised, and the parties asked the court to rule on all issues between them. The appeal was dismissed, leaving the High Court orders in place.