The Court of Appeal has set aside the dismissal of a claim by Maria Keena over the proposed purchase of the Ard Rí Hotel in Waterford, ruling that her case should proceed to a full hearing in the High Court.
The appeal concerned a High Court decision made at the end of Ms Keena’s evidence in 2019. The judge granted an application by four respondents to dismiss the proceedings, finding she had not established a prima facie case for a binding contract. The Court of Appeal held that the High Court had, in substance, applied a higher test than the required threshold for that application.
Ms Keena claimed that an agreement was reached on 21 November 2016 to buy the hotel for €1.6 million. Her representative, Bob Lanigan, said he negotiated by telephone with Terry Byrne, who the Court of Appeal described as the vendors’ agent. The appeal judgment said there was prima facie evidence that Mr Lanigan told Mr Byrne he was acting for a prospective purchaser, though he did not initially identify her.
That evening, Ms Keena handed a €160,000 bank draft to Chris Allen at Ernst & Young’s Dublin offices. The draft was described in the evidence as a non-refundable 10% deposit. A receipt, signed by Mr Allen, Mr Lanigan and Ms Keena, said the deposit was non-refundable and was subject to title being freehold and unencumbered. The Court of Appeal said the receipt and related emails had to be considered alongside the circumstances in which they were created. At the required preliminary standard, it found evidence that Ms Keena was the purchaser and that the documents could record an enforceable agreement.
The hotel was later sold to Kilkenny Walsh Limited for €1.5 million. The appeal judgment noted that the company entered into its purchase contract with notice of Ms Keena’s claim and proceedings. It made no final determination on the parties’ rights, the claim for specific performance, or the alternative claim for damages. Those issues remain for the substantive hearing, where Ms Keena must prove her case on the balance of probabilities. The judgment also left the High Court application’s costs to be addressed at the end of the trial.
The Court of Appeal’s ruling is dated 13 October 2023. Ms Keena was awarded the costs of the appeal, subject to any different costs order sought by written submissions.