High Court of Ireland Decisions

1. In these proceedings the Plaintiff, who is a Quantity Surveyor, seeks damages for breach of contract against the Defendant Authority. The Plaintiff alleges that the Defendant wrongfully terminated a contract made between the parties under which the Plaintiff provided professional services in connection with the general development of the Custom House Docks area under the aegis of the Defendant Authority which is a statutory body under the Urban Renewal Act, 1986.

2. In his Statement of Claim the Plaintiff alleges that in or about July 1988, it was agreed between him and the Custom House Docks Development Authority (which I will refer to as "the Authority" or "CHDDA") that he would be engaged and retained to provide work and services as a Quantity Surveyor in connection with the management of the construction activities under the terms of a Master Project Agreement Building Programme which related to the development of the Custom House Docks site on the north side of the River Liffey in the City of Dublin. The Plaintiff claims that it was an express or implied term of this agreement that his services would be retained for the entire period of the construction and development which was to take place on the site under the said Building Programme.

3. In fact the Defendant terminated the engagement of the Plaintiff in or about May of 1992.

4. In its defence the Defendant Authority, in a customary traverse of all the allegations of the Plaintiff, denied the existence of any contract. However, during the course of the lengthy hearing in this Court and in the submissions of Senior Counsel for the Defendant, it was admitted that a contract between the parties did exist. However, the Defendant's case is that this was merely a contract to provide quantity surveying services "as and when required" and that the services of the Plaintiff could be dispensed with at any time when they were no longer required.

5. In establishing the quantum of his claim, the Plaintiff produced, both in his pleadings and in evidence, calculations of the loss he had sustained. These calculations were vigorously challenged by the Defendant.

6. During the course of the hearing evidence was given by the Plaintiff and by his Accountant, Mr Trevor Leacy. For the Defendant Authority evidence was given by Mr Terry Durney, Development Director, Mr Frank Benson, former Chairman, Mr Augustine MacAmhlaigh, General Manager and Mr Desmond McCann, Financial Director, all of Custom House Docks Development Authority and by Mr David Kelly of Messrs Healy Kelly, Quantity Surveyors.

7. While lengthy and wide-ranging evidence was given and also strongly challenged in cross-examination, two main issues between the parties emerged. The first issue was as to the terms of the contract between the Plaintiff and the Authority. Here the Plaintiff argued that the contract was to cover not only the original five year period of the Master Project Agreement, but an extended period of some seven years. At times in his oral evidence he appeared to be claiming that his services should have been retained until the entire development as set out in the original Master Project Agreement had been completed - an event which has not yet occurred and perhaps will never occur in its original form. The Defendant Authority, as already stated, claim that it was a contract for services to be provided as and when required, to be terminated at will.

8. If the Plaintiff were to succeed in his breach of contract claim, the second issue would arise as to the quantum of damages and as to the method of calculating that quantum.

9. In order to deal with the first issue it is necessary to refer briefly to the history of the Custom House Docks Development Authority and the development of the Custom House Docks site, which includes both the International Financial Services Centre and a number of other business, residential and service/commercial building projects.

10. When the Government of the day decided to arrange for the development of the large dockland site east of the Custom House on the North Wall side of the River Liffey, a statutory body known as the Custom House Docks Development Authority was set up in 1986 pursuant to the Urban Renewal Act, 1986. Mr Frank Benson, who had formerly been employed in the Public Service, was appointed as Chairman of the new Authority. He served as Chairman from the 17th November, 1986 to the 30th June, 1990. He was succeeded by Mr Séamus Páircéar. By the time the Plaintiff was informed that his services were no longer required in May 1992, Mr Páircéar had resigned (for reasons totally unconnected with the present proceedings). No new Chairman had been appointed and at the relevant time meetings of the Board of the Authority were chaired by Mr Pádraig Ó hUiginn, then Secretary of the Department of the Taoiseach, who was a member of the Board.

11. At the inception of the Authority's activities at the end of 1986 it had a staff of two people. In January 1987 it acquired a premises and had a staff of four plus the Chairman. By July 1987 there was a staff of in or about 10 people.

12. At all material times it remained a small body. In his evidence (which was unchallenged) Mr Benson described the Authority as having a small in-house team of core staff, the majority of whom were seconded from year to year from various departments of the Public Service. The Authority obtained the services of specialist consultants when they were needed for particular purposes.

13. The first task of the Authority was to invite proposals (within the framework of a planning scheme) for the development of the Custom House Docks area. The development was to include the International Financial Services centre and other office accommodation. It was also to include social elements such as housing and a proposed Museum of Modern Art (subsequently in fact transferred to the Royal Hospital Kilmainham) and general commercial elements such as a public house and restaurant facility and a hotel. Eight proposals were received from development consortia. An evaluation framework was set up in the form of a panel of in-house staff and outside consultants in order to evaluate the various proposals. The outside consultants included Design Assessors, Architects, a Legal Specialist and Messrs KPMG Consultants on the financial side. The Plaintiff became one of this group of outside consultants in or about the month of September 1987 to advise on what Mr Benson described as "deliverability issues" . He was specifically invited to take part in the evaluation process by Mr Benson.

14. There is no suggestion that at this stage the Plaintiff was working on any other basis than as and when his advice was required. The Plaintiff was and is a Quantity Surveyor working as a sole practitioner from an office in Cork but he had certain qualifications which made him a suitable choice for the work in hand. As well as being a Quantity Surveyor as such, he had worked in project management and building costs consultancy and had to some extent carried out building developments himself. He had worked on a large shopping centre development in Manchester and on the St Stephen's Green Shopping Centre in Dublin. He was also already known to Mr Benson who had worked with him before and knew his abilities.

15. The Plaintiff stated in evidence that in September 1987 Mr Benson asked him to assist with the evaluation of the development proposals for the Custom House Docks site, which he did. At the end of the evaluation process, the development selected was one put forward by a consortium which included Hardwicke Limited, British Land Plc and McInerney Properties Plc.

16. Once the proposal had been selected, the next task was to negotiate a detailed agreement between the authority and the developers. This period of negotiation, according to Mr Benson, lasted from in or about September 1987 to the 25th January, 1988, when the major contract with the developers known as the Master Project Agreement was executed. A copy of this Master Project Agreement (known as the MPA) was handed into Court. There is no need to detail all its terms but certain terms will be referred to in the course of this judgment as necessary.

17. It is accepted that the Plaintiff, as an expert consultant, formed part of the team which negotiated this agreement on behalf of the Custom House Docks Development Authority. The Plaintiff accepts that at this stage he was well aware that he was employed on an "as required" basis. He was paid by the hour for his services and there was no formal contract. He was paid at the rather low rate of £35 per hour, which he negotiated with Mr Benson, and he worked something over 800 hours on the project at this stage. His evidence is that he deliberately accepted this low rate of remuneration because he wanted to "get his foot inside the door" of the Custom House Docks project and he hoped to obtain the contract for the quantity surveying work for the CHDDA on the whole project. Mr Benson, in his evidence, accepts that £35 per hour was "a keen rate" and that it was not unreasonable to suppose that the Plaintiff accepted this rate as a "loss leader" in the hopes of obtaining more long term employment. However, Mr Benson stressed that the Plaintiff was not guaranteed employment and this, as I understand it, would be accepted by the Plaintiff. This state of affairs continued until the MPA Agreement was finalised and signed on the 25th January, 1988.

18. It is now necessary to refer to some features of the actual agreement between the CHDDA and the development consortium, which was rather confusingly named the Custom House Docks Development Company Limited.

19. The agreement lists the types of building development that were to be carried out at Clause 1.1.21 as follows:

20. These developments were to be carried out within the "development period" which is defined in Clause 1.1.22 as "a period of five years calculated from the Date of Entry subject to such extensions as may be allowed pursuant to Clause 10.1 and 10.2" . The Date of Entry was the date of the agreement - 25th January, 1988. Clause 10.1 permitted the developer to apply to the Authority for an extension through a nominated officer in certain circumstances listed in the Clause. There does not appear to be anything out of the ordinary in the circumstances listed nor in the arrangements set out for reaching agreement on a particular extension, and there is no need to set these matters out in detail here. In the event at the end of the five year period no such application for an extension was made by the developer.

21. Prior to the actual start date of any particular building in the development, it was provided under Clause 6 of the MPA that a "feasibility study" was to be carried out by the developer. Without going into unnecessary detail, this feasibility study was to be an estimate of the construction costs of the building and the likely profits that were to be made from it. This was closely connected to the rather complex arrangement which was contained in the agreement with regard to the distribution of the profits to be made from the various parts of the development. In outline, in respect of each individual part of the development, the developer was to receive in the first place what is referred to in the MPA as "the Preferred Return". This "Preferred Return" was to be a percentage of the total outlay by the developer and the percentage varied according to the type of building - for example it was to be 20% in respect of the Financial Services Centre and 16% in respect of some of the other office buildings but only 4.5% in respect of the proposed Museum buildings. These percentages were listed at Clause 1.1.46 of the MPA. After the payment of the "Preferred Return" the "surplus" which was basically any further profit made from the various parts of the development was to be distributed in proportions set out in the agreement between the developer and the CHDDA.

22. It will be appreciated that this rather complex agreement required to be monitored from the point of view of the CHDDA, in particular in regard to the feasibility studies and the progress and costs of the construction work. The developers were to give accounts every three months to the Authority and the final accounts had to be agreed between the developer and the Authority at the completion of each building. As part of the MPA it was agreed that the developer would pay a contribution of 1% of the aggregate construction costs as a contribution towards the Authority's monitoring and administration costs. The details of how and when this contribution was to be paid are set out in Clause 33 of the MPA.

23. The carrying out of this monitoring by the Authority was a relatively complex task, which required outside expertise in addition to the work of the core of in-house staff. In order to ensure that the work was carried out properly and systematically, a document entitled "CHDDA - Master Project Agreement - Monitoring and Action Schedule" was drafted and agreed. The Plaintiff was involved in the drafting of this document which appears to have gone through a number of drafts before completion. The Defendant handed in what appears to be a copy of the document in its final form which is dated 25th March, 1988. The Plaintiff handed into Court what appears to be an earlier draft of the same document which he stated to be the copy which was in his possession and on which he relied. The main parts of the two documents are very similar. They set out a list of the various monitoring tasks which were to be carried out with reference to the relevant paragraphs in the MPA and allocate these tasks to either a member of the Authority's staff or to a body called the project monitoring group.

24. There is, however, an important difference in the initial pages of the respective documents. Since considerable stress was placed on the wording of the respective initial pages during the course of the hearing, it would be helpful to quote both of them in full.

25. The initial page of the draft handed in by the Plaintiff reads as follows:-

26. The initial page of the final document dated 25th March, 1988 and handed in by the Defendant reads as follows:-

27. Both in evidence and in submissions to this Court the Defendant laid considerable stress on the phrase "as required" contained in this document as showing that the services of the Plaintiff would only be availed of on an "as required" basis.

28. It is accepted by both sides that the Plaintiff was a specialist advisor within this project management group (PMG) and that he took part in its activities from the beginning.

29. In the period January- uly 1988 the Plaintiff continued to be paid by the hour at the original rate of £35 per hour. Understandably he wished to regularise his position and to improve his rate of remuneration. It had also become clear that he would require a more junior Quantity Surveyor to work with him, both to assist him generally and to carry out the simpler elements of the work which did not require the attention of a senior person.

30. It appears that he spoke to Mr Benson and perhaps also to Mr Durney, the Development Director, about the position. Mr Durney, however, in his evidence said that prior to July 1988 he knew nothing of the Plaintiff's terms of engagement and that his understanding was that these were a matter purely between the Plaintiff and Mr Benson.

31. As a result of the Plaintiff's conversation with Mr Benson, the Plaintiff was asked by Mr Benson to put a proposal in regard to his fees to Mr Durney. Accordingly, on 21st July, 1988 the Plaintiff wrote to Mr Durney as follows:

32. The Plaintiff then set out hourly rates of pay at £58 per hour for himself and £35 per hour for his assistant, David Byrne. He also proposed a fee of £20 per hour for a more junior assistant, Mr Philip Conway but in the event Mr Conway was employed only in a very minor way on the project. With regard to the fees the Plaintiff appended the following notes:

33. Note (d) is the only one relevant to the present proceedings. The Plaintiff then set out in a further document the proposed scope of his services to the development director.

34. It appears that the Plaintiff then decided to put forward an alternative proposal to Mr Durney by which he would be paid on a percentage basis rather than on a fee per hour basis. On 23rd July, 1988 he wrote to Mr Durney as follows:-

35. Meanwhile, Mr Durney was referring these matters to Mr Benson for decision. He sent a memorandum originally dated 22nd July, 1988 to Mr Benson which read as follows:

36. The memorandum is signed by Terry Durney. On the copy of this memorandum which is discovered at page C6 of the Discovery of Neil Mulcahy, the Secretary of the CHDDA, the date is typed in as 22nd July, 1988 and there is a hand-written note by Mr Durney at the bottom of the page which reads "Note: This memo requested from me by Chairman. T. Durney" . In his evidence in chief, Mr Durney said that he did not recall anything about this hand-written note but in reply to cross-examination, he suggested that he might well have made the note because normally Mr Smith dealt directly with Mr Benson on this type of matter.

37. At this point, according to Mr Durney's evidence, which is supported by that of Mr Benson, a conversation took place between Mr Durney and Mr Benson about Mr Smith's second proposal - the percentage fee set out in the letter of 23rd July, 1988. According to Mr Durney, Mr Benson appeared to be "a bit angry" and said that he did not know "what Con Smith was playing at" . Mr Benson told him " we decide what we pay and when we want him" and that the percentage proposal was unacceptable; it had to be an hourly rate. Mr Durney stated in evidence that it was not his position to appoint people or to negotiate rates.

38. The tenor of this conversation is borne out by a hand-written note appended by Mr Benson to the letter of the Plaintiff dated 23rd July, 1988. This note is directed to TD (Terry Durney) and states "1. This proposal is not acceptable. 2. Negotiate a discounted hourly rate instead".

39. It appears that at this point Mr Benson received and considered Mr Durney's memorandum dated 22nd July, 1988 concerning the Plaintiff's hourly rates. In the Discovery of Neil Mulcahy a second copy of this memorandum is discovered at page D12. In this copy the date has been altered by hand to 25th July, 1988. The text of the memorandum is unaltered but a note in Mr Benson's hand-writing and initialled by Mr Benson is appended at the foot of the page, this reads "1. Noted. 2. Agreed" and is dated, again by Mr Benson, 25/7.

40. There is considerable controversy between the parties surrounding this memorandum. The Plaintiff, whose record-keeping and filing system appears to leave something to be desired, did not produce it at an early stage of the proceedings and did not rely on it in his Statement of Claim. His own evidence is that he found a copy of it when searching through his papers for the purposes of the proceedings and realised its importance. His Solicitor sent this copy to the Solicitors for the Defendant with a letter dated 18th February, 1994. This copy is yet a third version of the memo where the date has been altered from 22nd July to 25th July, but it does not carry the hand-written note by Mr Benson. The other two copies are exhibited in the Affidavit of Discovery of Neil Mulcahy sworn on 12th February, 1996 on behalf of the Defendants.

41. In his evidence in chief, the Plaintiff stated that in or about the 26th or 27th July, 1988 he met the Chairman, Mr Benson, that the Chairman told him that his proposed hourly rates were agreed, and that the Chairman gave him a copy of Mr Durney's memo with the hand-written and initialled note "1. Noted. 2. Agreed". The Plaintiff said that at a later stage he found a second copy of the same memorandum, but not annotated, which was the copy sent by his Solicitors in the letter dated 18th February, 1994. In his evidence in chief, the Plaintiff said he did not know where he originally obtained this unannotated copy. Under cross-examination he suggested that he could have obtained the unannotated copy from Mr Durney's office, from the Chairman's office or from the Accountant's office. He remained adamant in the face of quite lengthy cross-examination that Mr Benson had actually handed him a copy of the annotated and initialled memorandum. Mr Benson in his evidence stated that the memorandum, with or without the note, was an internal office memorandum and that the note was intended for Mr Durney. He instructed Mr Durney to tell the Plaintiff that his hourly rates were agreed. He did not recall any particular meeting with the Plaintiff at the time. It would not be his practice to give an internal office memorandum to an outside consultant and he stated that he did not believe that he gave the memorandum to the Plaintiff.

42. The Plaintiff, on the understanding that his proposed hourly rates were agreed, proceeded straight away to issue new invoices at the new hourly rate. All of the Plaintiff's invoices throughout his entire connection with the Defendant were headed MPA Building Programme. These invoices were approved and signed by Mr Durney.

43. In his original proposal letter of 21st July, 1988 the Plaintiff, in addition to setting out hourly rates, proposed in the Notes appended to the hourly rates that the said hourly rates would be increased each year in line with inflation. There is no specific mention of this adjustment in the memorandum of 22nd/25th July, 1988 written by Mr Durney and noted and agreed by Mr Benson. However, it appears that Mr Benson, at least, accepted the concept of such an adjustment. In his evidence before this Court, Mr Benson described the yearly adjustment for inflation as "reasonable" and it appears that so long as Mr Benson was Chairman the increase was paid. After Mr Benson's departure, however, Mr Durney and Mr MacAmhlaigh, then General Manager of CHDDA, rejected the Plaintiff's applications for yearly increases and they were not paid.

44. In November 1988 there was a further development in relations between the Plaintiff and CHDDA. Mr Durney in his capacity as Development Director had a duty to oversee the monitoring of the MPA project in the light of the 1% fee payable to the Authority by the developers. He became concerned at the level of the fees being paid to the Plaintiff as a proportion of the monitoring fee income of the Authority, and on 9th November, 1988 he sent a memorandum to Mr Benson expressing his concern. In the course of this memorandum he stated:

45. Mr Benson clearly agreed with the viewpoint of Mr Durney and as a result there followed a negotiation with the Plaintiff with a view to setting a lower hourly fee rate. There are differences between the evidence of the Plaintiff and the evidence of Mr Benson and Mr Durney in regard to the form of this negotiation. In a Reply to Notice for Particulars dated 26th October, 1993, the Plaintiff stated that the renegotiation of fees was requested and carried out by Mr Durney. In the Plaintiff's oral evidence in chief, he spoke of "haggling" with the Chairman over the fee reduction, but in cross-examination he said that Mr Durney initiated the renegotiation of fee rates. He, the Plaintiff, was very annoyed and felt that Mr Durney's memo was wrong. There was haggling and he eventually agreed the rate because of the length and continuity of the job. The Plaintiff repeatedly stressed that Mr Durney and Mr Benson put it to him that he should reduce his rates because he would have continuing work over a long period and that this was the factor that persuaded him to accept the lower rates.

46. Mr Durney in his evidence said that he did not have any part in the renegotiation other than sending the memorandum to the Chairman. He spoke to the Chairman about the situation, but he did not discuss the matter with the Plaintiff. The renegotiation was carried out between the Plaintiff and Mr. Benson and he (Mr. Durney) was then informed of the reduced rate. Mr. Benson in his evidence agreed that it was he who had negotiated the reduction with Mr. Smith - saying that it was accepted "in recognition that he could look forward to at least twelve months work". My view of the sequence of events is that Mr. Durney sent his memorandum of 9th November, 1988 to Mr. Benson and subsequently discussed the matter with him personally. Mr. Benson accepted Mr. Durney's recommendations and he approached Mr. Smith to re-negotiate the hourly rates. In the course of the negotiations, he referred to Mr. Durney's memo and/or Mr. Durney's views, so that Mr. Smith became aware that the renegotiation had been initiated by Mr. Durney. I have little doubt that in persuading Mr. Smith to accept the lower rates, the continuity and length of the work was stressed to him. Firstly, this would reflect the arguments put forward in Mr. Durney's memorandum and secondly it is hard to see why Mr. Smith would have accepted the lower rate and the re-adjustment of the fees which he had already been paid had he not received some assurance of continuity.

47. As a result of the fee renegotiation, the Plaintiff agreed to a fee of £48 per hour for himself and £30 per hour for his assistant. He also re-adjusted the fees paid to him from February 1988 to October 1988 to take account of the lower rates and on 8th February, 1989 he sent a credit note for just over £14,000 to Mr. Durney to reflect the reduction.

48. The Plaintiff continued to carry out his monitoring and surveying work for the Defendant Authority. In February 1991 he sought an increase in his fees to reflect inflation (as had happened in previous years). By this time Mr. Benson was no longer Chairman of CHDDA Mr. Durney on the 18th February, 1991 sent a brief memorandum to Mr. MacAmhlaigh, the General Manager as follows:

49. The increase was not paid and no further "inflation" increases were paid to the Plaintiff.

50. I should now return briefly to the history of the Custom House Docks Development generally. By 1990 and more markedly by 1991 the building industry had entered a period of downturn. Demand for office and other types of space was low. The developers of the Custom House Docks site were not anxious to press ahead with buildings which might not be profitable to them and they preceded to slow down their building activities. This was bad news for the CHDDA, who were anxious to see the completion of the development project. During 1991 no new buildings were started and no feasibility studies were carried out. Work continued on buildings which were already commenced. It was clear that the buildings planned in the MPA Agreement would certainly not be completed within the five year period, or, indeed, within the period of the possible extensions. Clause 39 of the Master Project Agreement permitted the Authority to re-enter upon and take possession of all uncompleted parts of the site if the developer substantially failed to perform the agreement. The Authority endeavoured to get the developers to start the remainder of the buildings but the developer argued that the planned buildings were not commercially feasible. The Authority sought to enforce the agreement and threatened to re-enter the site. There was a high level of dispute between the Authority and the developer. The matter was referred to arbitration and Mr. Brian McCracken S.C. (now Mr. Justice Brian McCracken) was appointed arbitrator. Settlement negotiations then took place and eventually a tentative settlement was reached in December 1991. During 1992 there was no building (although some work on agreeing accounts for the completed buildings remained) and during that year there were prolonged negotiations between the Authority and the developers for a new agreement. The original MPA terminated on the 25th January, 1993 - the end of the five year period. A new agreement which was materially different in content was entered into in March 1993 and the development of the site was re-commenced later that year.

51. By November, 1991 Mr. Durney was concerned about the falling workload and future consultancy needs. On the 21st November, 1991 he wrote to the Plaintiff suggesting that his assistant Mr. David Byrne should reduce the number of hours he worked per week. On 3rd December, 1991 he sent a memorandum to Mr. MacAmhlaigh, the General Manager, which was critical of the work schedule for monitoring the final accounts of the completed buildings which was proposed by the Plaintiff and seeking "s ome realistic programme and the consequent realistic charge" . However, Mr. Durney felt that Mr. Smith should be retained to complete this monitoring work because of his familiarity with the project.

52. Mr. MacAmhlaigh and the Board of CHDDA apparently did not agree. At the Board meeting of the 4th December, 1991 the Board - now under the pro tem chairmanship of Mr. Pádraig Ó hUiginn (Mr. Páircéar having resigned) agreed that in the forthcoming negotiations with the developers, the Authority should be represented by an independent major firm of Quantity Surveyors. The General Manager was instructed to seek tenders for this work from a list of leading surveying firms. This was done and at the Board meeting of 28th February, 1992 the General Manager reported that, following the decision of the Authority at the December meeting, he had made arrangements to interview the firms of Quantity Surveyors nominated by the Authority. He circulated a paper on "Quantity Surveying Consultants" and recommended that Messrs. Healy Kelly and Partners be appointed to provide any necessary quantity surveying services required by the Authority. This recommendation was accepted.

53. During this time the Plaintiff was not informed in any way that the Board proposed to dispense with his services and to appoint another firm. This had the somewhat unfortunate effect that a number of his competitors were aware that his services with CHDDA were to be terminated well before he received any notice about the Board's plans. Neither did the Board offer any opportunity to the Plaintiff to tender for the work which it was proposed that the new firm would carry out.

54. Mr. MacAmhlaigh in his evidence explains this course of action by saying that the Board felt that they were entering into a phase either of complex arbitration and even High Court action against the developers or alternatively a phase of difficult negotiations for a new agreement. The Board felt that they would be better represented by a major Dublin firm rather than by "a sole practitioner from Cor k", who might not be able to do battle successfully with Messrs. Bruce Shaw, the Quantity Surveyors employed by the developers. Strangely enough the fact that the Plaintiff had played so considerable a part in the negotiation of the original MPA seems to have had no relevance in the eyes of Mr. MacAmhlaigh or of the Board.

55. On 6th March, 1992 Mr. MacAmhlaigh verbally informed the Plaintiff that his services were no longer required and that Messrs. Healy Kelly had been appointed in his place. The Plaintiff was not unnaturally shocked and extremely disturbed. His evidence is that Mr. MacAmhlaigh asked him to work on with the new surveyors to finish up the final accounts and then he would no longer be required. He complained to Mr. MacAmhlaigh about the failure to allow the "inflation" increases. His evidence is that Mr. MacAmhlaigh told him to "write in about his grievances" and that he would "look favourably on them" . He wrote accordingly to Mr. MacAmhlaigh on the 10th March, 1992 in regard to a number of matters. Mr. MacAmhlaigh replied on the 28th April, 1992 as follows:

56. The Plaintiff had for a period been working along with Messrs. Healy Kelly in familiarising them with the work but from in or about 19th May, 1992 he ceased completely to carry out any work for the Authority. Correspondence between the Plaintiff's Solicitors and the Defendant's Solicitors ensued. The Plaintiff issued his Plenary Summons on the 22nd December, 1992.

57. As far as the facts of the case are concerned, two other aspects of the matter seem to me to be worthy of mention. The first is as regards the engagement of Messrs. Healy Kelly to continue the quantity surveying role previously filled by the Plaintiff.

58. In a letter dated 14th February, 1992 to Mr. MacAmhlaigh, Mr. David Kelly put forward Healy Kelly's proposals. In the course of the letter Mr. Kelly points out

59. This is of interest in that one of the complaints made about the Plaintiff by Mr. Durney and Mr. MacAmhlaigh was that the Plaintiff himself had too much input into the work (as opposed to his more junior surveyor).

60. Also the fee per hour for a director's time proposed by Mr. Kelly is £52.50 per hour for the first 500 hours and £47.50 per hour thereafter. The Plaintiff's rate in 1992 was £49 per hour. It can hardly be argued that the appointment of Messrs. Healy Kelly represented a large saving to the Authority.

61. As far as the appointment itself was concerned, on 21st February, 1992 Mr. McAmhlaigh wrote to Mr. David Kelly as follows:

62. It is notable that this letter of appointment states expressly that the services are to be on "as required basis" and that the appointment may be terminated at any time.

63. The second matter of evidence arose at the end of the Plaintiff's own evidence. It appears that in late 1994 or early 1995, when his proceedings were well in train, the Plaintiff visited Mr. Benson in his present offices above Trinity Street car park. The ostensible purpose of this visit was to ask Mr. Benson to "sign" an interrogatory, the text of which was as follows:

64. The Plaintiff asserted that attached to this rather arcanely worded interrogatory was a copy of the original memorandum of 25th July, 1988 as noted and agreed by Mr. Benson. According to the Plaintiff his Solicitor did not ask him to go Mr. Benson personally with the interrogatory; he (the Plaintiff) volunteered to carry out this somewhat bizarre proceeding. According to the Plaintiff, Mr. Benson refused to sign any document and (not unnaturally) indicated that he did not wish to become involved in the litigation. However, he said to the Plaintiff that the original memorandum was " all that he needed for his case" . The Plaintiff denied that he asked Mr. Benson to give evidence for him in the case. According to him it was a friendly meeting.

65. Mr. Benson's account of this meeting is dramatically different. His evidence is that the Plaintiff came to see him by appointment in early 1995. The Plaintiff informed him that he was taking an action against CHDDA, a fact of which Mr. Benson had been unaware. He spoke to Mr Benson in regard to the internal memo of 25th July, 1988 which he had "discovered" and suggested that Mr. Benson might support his claim. Mr. Benson said "the thrust was that I might testify for him" . The Plaintiff "tabled" a document which he (Mr. Benson) did not read. He refused to sign any document or to take any part in the matter. He was taken aback and it was a short and curt meeting. He was not prepared to testify, and told the Plaintiff that his action was ill advised.

66. This meeting is of no great relevance to the actual issues in the proceedings but it does show a degree of bad judgment on the part of the Plaintiff. The Plaintiff's account of the meeting was confused and illogical and I prefer Mr. Benson's account of the episode.

67. It is, as I have said, accepted by the Defendant that a contract existed between the Plaintiff and the Defendant. There is, however, a very high degree of conflict between the Plaintiff and the Defendant as to the nature and terms of that contract.

68. The Plaintiff started to work for the CHDDA on an informal basis at the beginning of the entire Custom House Docks project. In mid-1988, when the time came to put his employment on a more formal basis, it is unfortunate that the Authority did not take this simple step of issuing a letter of appointment clearly setting out the terms of his employment. In February 1992, when the Authority was appointing Messrs. Healy Kelly as Quantity Surveyors, Mr. MacAmhlaigh set out the terms of appointment in his formal letter of 21st February, already quoted. It cannot be suggested that the Authority took this step because they had learnt from the experience of the Plaintiff suing them, since the letter to Messrs. Healy Kelly was written before the Plaintiff was even informed of the termination of his employment. It seems to me that a public body such as the CHDDA, which is acting on behalf of citizens and taxpayers, should be most careful and scrupulous in going through the proper formalities in regard to employment, appointments, and contracts. It was most undesirable that the appointment of the Plaintiff to carry out an important part of the crucial task of monitoring the MPA should have been carried out in such a confused and informal manner, without any form of advertising or tendering process or any formal written contract or letter of appointment.

69. The Plaintiff's claim as set out in his pleadings and his evidence is that his contract was to cover the entire period of construction of the building work specified in the MPA Programme agreed on 25th January, 1988. He claims that by the time his employment was finally terminated in May 1992 only approximately 36% of this building work had been completed. He claims that he should be compensated (in the manner detailed in the evidence of his Accountant) for the fact that he should have been employed in the same way for the remaining 64% of the building work. In making this claim he relies on his letter of 21st July, 1988 setting out his proposed hourly fees and work outline, on the memorandum dated 25th July, 1988 marked " 1. Noted, 2. Agreed" by Mr. Benson, the fact that all his invoices were headed MPA Building Programme, and the agreement of November 1988 whereby he reduced his hourly fees on the assurance, he claims, that he would have continuity of work throughout the MPA Programme. On behalf of the Defendant the evidence of Mr. Benson is the most crucial and relevant in regard to the Plaintiff's appointment and subsequent employment. Mr. Benson denies absolutely that the Plaintiff was appointed for the period of the MPA Building Programme. He repeatedly stressed that the Plaintiff was only to work "as required" . In the course of his evidence Mr. Benson summed up the situation by saying:

70. In the manner of his giving evidence, Mr. Smith sometimes gave an impression of disorganisation and a degree of confusion on facts and details, although he was quite firm and consistent on the main points of his claim. Mr. Benson was a more clear, precise and organised witness. The contrast between the two men was, however, largely one of style, manner and character, and it would be wrong and dangerous for the Court to prefer the evidence of Mr. Benson over that of Mr. Smith simply because Mr. Benson could express himself more clearly and succinctly than Mr. Smith. I did not have the impression that either man was being deliberately untruthful.

71. It might be suggested that the evidence of Mr. Durney and Mr. MacAmhlaigh corroborated that of Mr. Benson. That, to my mind, is not so. Neither Mr. Durney nor Mr. MacAmhlaigh had any direct part in the negotiations in regard to Mr. Smith's appointment, and Mr.Durney quite deliberately in his evidence distanced himself from the matter, stating that the selection and appointment of consultants or specialists was not part of his remit. Mr. MacAmhlaigh really only came into the picture at the end, shortly before Mr. Smith's employment was terminated. It is hardly surprising that Mr. Durney and Mr. MacAmhlaigh should echo Mr. Benson's views of the Plaintiff's employment, but they have no direct knowledge of the matter.

72. Given that there is an unresolvable conflict of evidence between Mr. Smith and Mr. Benson as to the terms of the acknowledged contract between Mr. Smith and the CHDDA, it falls to the Court to endeavour to interpret the contract from the documentation available and the surrounding facts.

73. On the evidence the essential sequence of events in July, 1988 was as follows:-

74. Mr. Smith also places reliance on the fact that all his invoices were headed MPA Building Programme. I do not consider this fact to be of any particular significance other than, perhaps, as a reflection of Mr. Smith's state of mind. The MPA was the programme he was in fact working on and one could not expect his employers consciously either to accept or reject such a heading.

75. The renegotiation of fees in November 1988 is, however, a different matter. Here I accept Mr. Smith's evidence that, in persuading him to accept a reduction in fees and, more strikingly, a re-adjustment of fees already paid to him, there was at least an implication and probably a positive assertion that he would have security and continuity of employment. I do not accept the evidence of Mr. Benson that Mr. Smith accepted this arrangement on the vague expectation of about a year's further work.

76. Mr. Benson stresses that Mr. Smith was to work "as and when required" and much was made of the phrase "supplemented by specialist advisors as required" contained in the Monitoring and Action Schedule. This phrase, however, does not necessarily have the meaning canvassed for it by the Defendant - that Mr. Smith could be dismissed at any time and replaced by other quantity surveyors. It can equally, if not more logically, refer to the fluctuating nature of the Plaintiff's work during the period of the MPA. He was employed as a Specialist Consultant and would do whatever work was necessary. This might indeed mean that at some times during "the period of the MPA" he would have little input into the project, but whatever quantity surveying work that was there to be done would be carried by him.

77. Based on these facts, therefore, I find that there was a contract between the Plaintiff and the Defendant whereby the Plaintiff was appointed as a Quantity Surveying Consultant to the Custom House Docks Development Authority for the period of the Master Project Agreement to carry out such quantity surveying work as was from time to time required by the Authority. As would be the case with any contract, the Plantiff would be required to carry out the work on a proper professional basis, but if he did so it was not open to the Defendant unilaterally to terminate the contract and employ another quantity surveying firm.

78. However, this is not the end of the matter. There are also differing interpretations of the term "the period of the MPA" . The Plaintiff claims that, in addition to the five year period set out in the original agreement, this "period" should include all possible time extensions envisaged in the Master Project Agreement. At times he also suggests that "the period of the MPA" should mean the entire time until all the buildings planned in the original agreement were completed.

79. I cannot possibly accept this latter claim. In an area so uncertain as the building industry, no employer would conceivably bind himself or herself to such a contract. Even on a factual level matters at the Custom House Docks site have vastly changed since the MPA plan was made in January 1988. The original document envisaged a small concession of social housing; the tide of apartment building in central Dublin has now made the building of apartments an important and no doubt profitable feature of the Custom House Docks site. The proposed Museum of Modern Art, on the other hand, has vanished from the Custom House Docks plan and found itself at the Royal Hospital Kilmainham. Plans to replace it are still fluid - if I may so describe plans which include a proposal for an aquarium. On a practical level, it is impossible to accept a contract that would be potentially infinite in its time span. The phrase "the period of the MPA" must be interpreted in the more narrow sense of the basic five year period covered by the initial MPA Agreement - from 25th January, 1988 to 25th January, 1993. Had the possible extensions of the MPA come into effect it might be arguable that the Plaintiff's contract covered the extension periods. However, that simply did not arise as there was in fact no extension of the agreement. The Plaintiff cannot claim compensation for imaginary extensions of the MPA.

80. It seems to me, therefore, that the Plaintiff had a right to continue to be employed as a Consulting Quantity Surveyor by the CHDDA, doing whatever work of that nature was required, until the 25th January, 1993.

81. I now turn to the measure of the Plaintiff's damages. Both parties called accountants in evidence in regard to the possible losses sustained by the Plaintiff due to the termination of his employment by the Defendant. Mr. Trevor Leacy, the Plaintiff's Accountant, provided a comprehensive booklet of calculations and enlarged on them in oral evidence. On behalf of the Defendant, Mr. D.G. McCann, the present Financial Director of CHDDA, also provided a set of calculations for the Court. He commented on Mr. Leacy's calculations and provided an alternative basis of calculation. In addition the Court was provided with a number of sets of financial statements of the Plaintiff's business covering recent years. While these financial statements were prepared by an accountant they were unaudited.

82. There is no need to go into the financial records of the Plaintiff's business in detail but some matters of interest emerge from the figures. Firstly, on the figures provided at paragraph 2.4.1 of Mr. Leacy's report, while the fees paid by the Defendant were a reasonably large part of the Defendant's business, they were not in general an overwhelming part of his turnover. They reached by far their highest point in the year ended 31st May, 1990 when they represented 51.79% of the Defendant's turnover but on the average over the four years 1989 to 1992 they represented 26.69% of his turnover. He therefore had time available to carry out other work and indeed he did so.

83. Secondly, there are two distinct aspects to the Plaintiff's business - his quantity surveying business and his business as a developer in his own right. Subsequent to the termination of his employment by the Defendant, the turnover of his quantity surveying business fell sharply. On the other hand, his development business, which apparently consisted of the building and selling of private houses, very considerably increased its turnover. In considering the history of the Plantiff's business one must also bear in mind that, as in all businesses related to the construction industry, there is a wide degree of fluctuation from year to year which may have little connection with the individual behaviour of either the Plaintiff or the Defendant. It is clear from the history of the Custom House Docks Project that the building industry in general was not doing particularly well during the 1990 to 1993 period.

84. The calculations made by Mr. Leacy are largely based on the Plaintiff's contention that he should have been guaranteed employment until all the building work set out in the original MPA was completed. Since this starts from the point that 36% of the work was completed by May 1992, it results in a claim in the region of half a million pounds. A similar result is reached on an alternative calculation based on possible profits from two other jobs which the Plaintiff claims he could have obtained had he not been working for the CHDDA.

85. I would have say, for reasons already set out, that the basis of calculation of these claims seems to me to be bordering on the fanciful. The Plaintiff's losses must be based on my finding that he should have been employed by the Defendant to do all required quantity surveying work under the original MPA Agreement until it expired in January 1993. I also consider that the Defendant was bound to pay him the yearly inflation-related increase set out in his original proposal. In this context it is interesting to note that Messrs. Healy Kelly in their proposal letter of 14th February, 1992 (which was agreed by the Defendant) included a very similar yearly increase.

86. Mr. McCann in his report has included a useful table of the hours in fact worked by Messrs. Healy Kelly from May to December 1992 (and following years), what would have been paid to the Plaintiff at his rates for this work and what was in fact paid to Messrs. Healy Kelly. During the final period of the MPA from May to the end of December 1992, Messrs. Healy Kelly worked 363.50 partner hours and 90 junior hours. The gross fees payable to the Plantiff at his rates of pay adjusted for inflation for this period would have been £22,536.20. On the figures in the financial statements it appears that the profit element in the Plaintiff's quantity surveying work is some 51.8% which would mean that his profit on the work required by the Defendant for the period would be £11,673.75. Taking into account the payment of Court interest on this figure and adding in the monies owed in regard to adjustment for inflation, I consider that the Plaintiff's actual losses from the termination of his employment by the Defendant could be expressed in a round figure of £30,000.

87. The Plaintiff also claims general damages for breach of contract. I accept that the Plaintiff was placed in an extremely awkward position by the behaviour of the Defendant. During the early period of 1992 his competitors in the quantity surveying business were well aware that he was about to be dismissed from his employment with the Defendant before he had any information on the subject. He was not given any chance whatsoever to tender for the work that was subsequently carried out by Messrs. Healy Kelly. While I appreciate that the Board of the CHDDA felt that they should employ a major Dublin firm at this time, I consider that the Plaintiff should at least have been given an opportunity to make his case as to his abilities and resources for carrying out this work and to tender for it.

88. Given the nature of Irish business and Irish society generally, I have no doubt that the dismissal of the Plaintiff from the Defendant's employment must have been something of a "nine day's wonder" to others in the quantity surveying business and the construction industry generally, particularly in view of the fact that the Custom House Docks Project was so high profile.

89. I also feel sure that the termination of his employment must, to some extent, have affected his general business even if not to the extent which he himself claims. On the other hand, even the records of the Defendant show clearly that he was not only a competent quantity surveyor but also had other skills in the area of building development and, as I have already said, he had his own development business as well as his quantity surveying business. I think it can fairly be assumed that the affect of the Defendant's behaviour on his business would have been fairly short term. Accordingly, I would measure his general damages at £50,000 giving a total of damages against the Defendant of £80,000.