![]() ![]() 210 and the jurisprudence derived therefrom. (a) The principle and application of the rule in Hay v O’Grady I.R. The Court granted leave on two issues of general public importance: Leopardstown sought leave to appeal to the Supreme Court. The onus on this issue of actual and complete knowledge is on Leopardstown and it does not appear that it can be considered as discharged by such credibility findings of the trial judge. It was not enough, for example, to point to the existence of ESB manholes on the tennis court site in order to fix Templeville with knowledge, as this would go constructive rather than actual knowledge only.įinlay Geoghegan J ( here) wrote a concurring judgment finding that the evidence before the trial judge did not establish that Templeville had complete knowledge of the existence of the two cables at the time it entered the Agreement. Specifically, the trial judge did not apply the correct legal test in assessing this question, since he should have considered whether Leopardstown had established on the balance of probabilities that Templeville had actual and complete knowledge of the existence of the traversing cable in the manner required by the Supreme Court in Gahan. Third, the findings made by the High Court to the effect that Templeville had such knowledge cannot be sustained. …Īllowing Templeville’s appeal, the Court of Appeal issued two judgments. The truth is not the monopoly of any majority. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The arid pages of a transcript seldom reflect the atmosphere of a trial.Ģ. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The rule from Hay v O’Grady was stated by by McCarthy J at 217:ġ. I am satisfied that Philip Smyth, in claiming no knowledge of the cable is giving evidence that, in these circumstances, a court could not accept. It is impossible not to be satisfied that Templeville had knowledge of the transverse ESB cable. In the High Court ( here), Charleton J granted Leopardstown the orders sought, stating:ħ0. Templeville counterclaimed that Leopardstown induced it into the Agreement by misrepresentation regarding two ESB cables which run under the property. In 2012 Leopardstown issued High Court proceedings seeking a declaration that the Agreement was still in force and seeking money owed, damages and other reliefs. That did not resolve the disputes, though. The parties entered into a complex mediation process which led to a Mediated Settlement Agreement to resolve all of the outstanding disputes. In 2011 there were nine separate disputes between the parties. However, the relationship between the parties has been fractious and has resulted in many legal disputes. ![]() Templeville constructed a sports club including indoor and outdoor tennis courts. In 1998 Leopardstown granted Templeville a 35 year lease over land at Leopardstown race course. ![]() ![]() Further aspects of the law on misrepresentation did not arise. Once there was evidence to support the learned High Court judge’s finding, as to the credibility of Mr Smyth, this was a finding of primary fact which should not be set aside by an appellate court as it was supported by credible evidence. The Court was not asked to overrule Gahan v Boland. (ii) Second, the issue of misrepresentation and the application of the correct law. (i) First, in essence, did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady? I would answer this in the affirmative, for the reasons given. Answering the questions certified, the Court held: Here, the Supreme Court overturned the decision of the Court of Appeal in this case and affirmed the judgment of the High Court (Charleton J). ![]()
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