The High Court found that Neville Presho was entitled to damages for trespass and interference connected with his former house site on Tory Island, but did not determine the final remedy in the judgment delivered on 17 July 2009.
Mr Justice Roderick Murphy said the court had ruled for Mr Presho on a preliminary issue in April 2009, allowing the case to proceed despite the defendants’ reliance on the Statute of Limitations and delay, in light of his bipolar disorder. The July judgment addressed the substantive issues after further hearings, including a final hearing on damages on 13 July.
The court found that the 19th-century stone house had lost part of its roof before a fire on 14 January 1993. The fire’s circumstances were unexplained, but the judge accepted on the balance of probabilities that it was malicious and worsened by combustible materials stored inside. He also found that there was no evidence the defendants or their agents started it.
The house was later removed and its site levelled. The judge found that its gradual disappearance required mechanical means and that the first defendant, Patrick Doohan, had the capacity and opportunity to remove stones, as he owned the island’s only JCB. Applying circumstantial evidence and the doctrine of res ipsa loquitur, the court concluded that the JCB was probably the only instrument that caused the relevant injury. However, the judgment said there was no direct evidence that the defendants demolished the house, and it made no finding that they had done so.
The court declared null and void a 2001 agreement signed by Mr Presho and Mr Doohan concerning an exchange of land rights. It found no evidence that Mr Doohan had drafted it and referred to evidence about Mr Presho’s mental impairment. The court declined to address unjust enrichment because the claim had not been amended to include it.
On the septic tank, the judge was not satisfied that Mr Presho’s rights to use it could be extinguished through non-use. The court found that access to it could cause no significant damage if he could use it again. It was not satisfied that cars had trespassed by parking on the site.
The judgment allowed claims identified as paragraphs (a) and (d) of the statement of claim and then turned to the remaining requests: rebuilding or restoring the house, and removing the septic tank. Given the delay, limited evidence about the house before the fire and what the court called Mr Presho’s ambivalence, it said equitable relief should be a comparable dwelling on Tory Island or its open-market value. The judgment does not specify which option was ordered or state a monetary award.