The High Court has rejected Ethafil Limited’s application to recover €50,000 from Express Bus Limited under a settlement concerning Birmayne House in Mulhuddart, Dublin 15. The court found that Express Bus had no contractual duty or legal right to compel other occupiers to leave, and that the settlement did not clearly require payment simply because they remained.
The application was made to re-enter proceedings and enforce a settlement agreement dated 13 October 2022. The dispute followed earlier High Court rulings that Express Bus’s option to buy part of the property had lapsed and that it was not lawfully occupying the property. The parties later settled their appeal and claims concerning the property.
Under the settlement, Express Bus undertook to deliver vacant possession by 31 January 2023. The agreement named several occupiers, including McBreen Environmental Drain Services Limited, Phever FM and Temptech. It also provided for a €50,000 contribution towards Ethafil’s costs if Express Bus or any named occupier failed to deliver vacant possession in accordance with the agreement.
Express Bus said it had served termination notices on the remaining named occupiers, but could not force them to leave. It argued that the €50,000 provision was an unenforceable penalty. Ethafil argued that the payment was due because three named occupiers remained at the property after the deadline.
Justice Eileen Roberts found it was undisputed that McBreen Environmental Drain Services, Phever FM and Temptech remained in possession on 31 January. She concluded that the settlement did not require Express Bus to compel them to leave. The court also found that the €50,000 provision would be an unenforceable penalty if triggered by a breach by Express Bus: it was not a genuine estimate of likely loss and was an additional payment rather than costs already owed.
The judge further held that the clause was not clear enough to make the payment recoverable solely because other named occupiers remained, without a breach by Express Bus. She therefore rejected the application to recover the sum. The judgment did not determine any separate claim for damages or misrepresentation. The court listed the matter for mention on 17 October to settle the final order and address legal costs.