The Court of Appeal dismissed Daniel and Sheila Cremins’s appeal over a land purchase option, while removing three specific adverse conclusions made at trial about their solicitor, Aoife O’Connell, who had appeared only as a witness.
In a judgment delivered on 30 July 2018, Mr Justice Michael Peart said the trial judge should not have found that Ms O’Connell had engaged in “elements of sharp practice” or that she was obliged to alert the other side’s solicitor to a change in her understanding of the option. The Court of Appeal held that the issue had not been put clearly to her in evidence and that she had not been given a fair opportunity to respond to a finding that could affect her professional reputation.
The dispute arose from a 2012 settlement concerning lands sold to Knockacummer Wind Farm Limited, with a buy-back option for the Cremins and a possible lease back to SWS. The settlement described the buy-back option as exercisable “after 30 years”. The written option agreement, drafted by the company’s solicitor, set a purchase option date in 2042 and said the option would lapse if not exercised by then.
The trial judge found that after receiving legal advice in May 2012, Ms O’Connell understood the option could be exercised before 2042, although the land would not return to the Cremins until that year. The judge found she did not tell the company’s solicitor that her understanding had changed before the agreement was signed. The Cremins later served a notice purporting to exercise the option in March 2013. The company also purported to exercise its lease option. The parties disputed whether the notices had been properly served.
The trial judge had construed the agreement as permitting the buy-back only in 2042 and, alternatively, ordered rectification by inserting “in 2042” into a clause. Justice Peart said the rectification conclusion was supported by the trial judge’s findings of a unilateral mistake and did not depend on the criticism of Ms O’Connell. He agreed with Mr Justice Hogan’s conclusions on construction and rectification, and with Ms Justice Whelan’s conclusion that time was not of the essence for exercising the lease option.
The appeal was allowed only to the extent of setting aside the trial judge’s statements that Ms O’Connell had engaged in sharp practice, that she was incumbent to alert the other solicitor, and that she should have done so. The appeal was otherwise dismissed.