The Court of Appeal has ordered a retrial of a dispute over whether maps supplied by Leopardstown Club Limited misrepresented the position of underground electricity cables at a proposed tennis court site.
The appeal concerned only the dismissal of Templeville Developments Limited and Philip Smyth’s counterclaim for rescission of a mediated settlement agreement, or damages, on alleged misrepresentation grounds. The agreement was made in October 2011 and included plans for a site where a third dome could be built.
The defendants argued that maps produced during mediation showed one underground ESB cable but omitted a second cable that crossed part of the proposed site. They said the maps falsely represented the position and induced them to enter the agreement. Leopardstown disputed that the trial judge had erred and relied on his findings about Smyth’s credibility and the defendants’ knowledge of the cables.
The Court of Appeal held that the trial judge had not made the specific findings needed to decide whether the maps made a false, material representation intended to be relied on, or whether it induced the defendants to sign the agreement. The court said that if the alleged representation were established, the relevant question for the knowledge defence would be whether Templeville or Smyth had actual and complete knowledge in October 2011 of both cables and of one cable crossing the site. Knowledge of only one cable would likely be insufficient.
The appeal court found that the trial judge’s conclusion that the defendants knew of one cable in 2007 or 2008 was supported by evidence, but that a finding they knew of two cables then was not. It also said the evidence did not support an inference that Leopardstown had established actual and complete knowledge of the true position when the settlement was signed.
The Court of Appeal did not decide whether the maps amounted to actionable misrepresentation, whether the defendants were induced to enter the agreement, or whether they should ultimately receive rescission or damages. It allowed the appeal against dismissal of that part of the counterclaim and remitted the single issue and defence to the High Court for retrial before a different judge. The court said evidence about Smyth’s later discovery claim and subsequent conduct could be relevant to remedy if the claim succeeded at retrial.