The Court of Appeal has dismissed an appeal by two groups of property claimants seeking to add Clarion Quay Management Company Limited’s directors and management agent as defendants to their trespass claims.
The appeal concerned applications to join the proposed defendants to existing proceedings over unit 5A, 4A Excise Walk, apartment 14 in Block 1 and 49 car parking spaces at Clarion Quay, Dublin 1. The appellants allege that the management company trespassed on the properties, changed locks or restricted access, and interfered with their use. Those allegations were not determined in this appeal.
The High Court refused joinder in February 2019. It found no evidence then before it showing that any proposed defendant had personally participated in, or was sufficiently involved in, the alleged trespass. The appellants appealed and relied on emails obtained through discovery after the High Court hearing. The management company agreed that the new evidence could be admitted for the appeal, while disputing its significance.
The Court of Appeal said directors can in appropriate circumstances be personally liable for torts committed jointly with a company or for procuring a company to commit a tort. But the High Court had been entitled to refuse joinder where the application did not set out a specific case against each proposed defendant. The new emails, viewed as a whole, showed the board addressing management difficulties, including car park service charge arrears, fire safety concerns and water ingress affecting apartment 14. The court said a remark about “possession is nine tenths of the law” was taken out of context and did not establish a stateable case of trespass by the directors.
The court also took account of the advanced stage of the proceedings, their case management alongside separate building-defect litigation, and the potential for conflicts of interest and delay if the directors and agent were added. It said the appellants had not explained why they did not join them when the proceedings began.
The appeal was dismissed. The court said the appellants remain free to bring separate proceedings against the proposed defendants if they consider that appropriate, and that they would not be prejudiced by the refusal to add them here. The respondent was successful. The court’s provisional view was that it should receive its costs in both courts; the appellants had 14 days to seek a brief supplemental hearing on costs, failing which the proposed costs order would be made.