Businessman Philip Smyth and his company are not entitled to rescind a mediation agreement intended to have settled a long running and costly row with the owners of Leopardstown racecourse, the Supreme Court has ruled.
Leopardstown Club Limited (LCL) appealed to the Supreme Court after the Court of Appeal overturned a High Court decision rejecting claims by Mr Smyth and Templeville Developments Ltd, which operates the Westwood sports club at Leopardstown, that they were entitled to rescind the mediation agreement on grounds of alleged misrepresentation.
Templeville and Mr Smyth alleged LCL misrepresented a site running through seven new tennis courts was not materially affected by an underground ESB cable. LCL denied misrepresentation, alleged Mr Smyth had deliberately “stacked up” grievances to breach the mediated settlement and argued that Templeville and Mr Smyth were aware over years of two underground ESB cables.
Michael McDowell SC, for LCL, argued there was “a great big manhole” in the middle of the relevant site marked with “ESB”, plus two other marked manholes.
The High Court had found it was “impossible” not to be satisfied Templeville had knowledge of the transverse ESB cable and that Mr Smyth’s claim of no knowledge of that cable was not believable.
In its 2015 judgments granting an appeal by Templeville and Mr Smyth over the High Court findings, the Court of Appeal found the High Court conclusion that the appellants had knowledge in 2007/08 of two ESB cables was not supported by the evidence.
‘Unless’
LCL appealed to the Supreme Court and five judges on Tuesday unanimously allowed the appeal after finding the Court of Appeal exceeded its jurisdiction. It also made “unless” costs orders, meaning Templeville and Mr Smyth must pay the substantial legal costs of the case unless they indicate by next Tuesday a basis for opposing this. costs. If they do, the court will decide the costs issue later.
The core issue in the appeal was whether the Court of Appeal exceeded its jurisdiction and misapplied a rule under which appellant courts are bound by a trial judge’s findings of fact if those findings are supported by credible evidence.
Giving the court’s principal judgment, the Chief Justice, Ms Justice Susan Denham, found the appeal court had misapplied the relevant rule. Because there was evidence to support the High Court’s finding certain evidence given by Mr Smyth was not credible, that finding could not be set aside by the Court of Appeal, she held.
Templeville, of which Mr Smyth is principal shareholder and a director, had secured a new lease agreement from LCL in 1998 covering some of the lands and racecourse premises and, under that and various agreements, built Westwood club and 11 tennis courts.
The Supreme Court noted the relationship between the parties had nearly always been “strained and fractious” and, arising from several major items of actual or threatened litigation, they entered a mediation process in 2011 leading to a written Mediation Settlement Agreement (MSA), including maps and providing for Templeville to make payments to LCL.
While an initial payment was made, relations between the sides had deteriorated by 2012 with both alleging breaches of the MSA. LCL took proceedings in 2012 for a declaration the MSA remained in full force while Templeville and Mr Smyth argued it was voidable for mistake and alleged misrepresentation.
