THE HIGH COURT
			1995 No. 7530P 
BETWEEN 
JOHN ANTHONY GRIFFIN
			PLAINTIFF
AND 
MARGARET HONORIA MADDEN
			DEFENDANT
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 11th day of May, 2001.
	These proceedings arise out of an agreement entered into on the 13th October, 1994 at a sitting of the High Court hearing appeals from the Circuit Court in the City of Galway.  It was an agreement between the parties hereto (the Plaintiff, John Anthony Griffin, acting by his son and attorney, James A. Griffin) and the Defendant’s estranged husband, Brendan Madden.  It is, I think, of some significance that the Plaintiff and the Defendant are siblings.  
	The said agreement of the 13th October, 1994 was negotiated by the parties thereto with a view to compromising all legal proceedings then in being between them and, indeed, all legal proceedings then in being involving the Plaintiff and the Defendant and the said James A. Griffin, son of the Plaintiff.  In this regard, I am satisfied by the evidence which I heard that it was an agreement which was arrived at after prolonged negotiations involving the signatories thereto and their respective legal representatives, who witnessed those signatures.
	Essentially, the proceedings herein involve an assertion by the Plaintiff that the Defendant has failed and neglected or has refused to implement the terms of the said agreement and he seeks an order for specific performance thereof together with damages for breach of contract and ancillary injunctive relief.  While the Defendant was originally represented by a firm of solicitors, who looked after her interests insofar as the conduct of these proceedings were concerned up to the time upon which a date was fixed for the hearing of the case, they have ceased to represent her interests since that time and she conducted the trial of the action on her own behalf.  In that regard, she gave sworn testimony that she can no longer afford legal representation.
	While, in her defence delivered herein, the Defendant challenges the Plaintiff’s claim on a variety of grounds, including (inter alia) allegations that no cause of action is disclosed by the Plaintiff, that the Court does not have jurisdiction to adjudicate upon the Plaintiff’s claim and that the claim is frivolous, vexatious and an abuse of process, nowhere in the defence delivered on her behalf is there a challenge to the validity of the said agreement.  However, by a letter dated the 24th January, 2001 addressed by the Defendant’s then solicitors, Messrs. Martin J. Kearns and Company, to the Plaintiff’s solicitors, Messrs. Creavin and Company, the Plaintiff’s said solicitors were requested to consent to the delivery of an amended defence on behalf of the Defendant, a draft of which accompanied the said letter.  The Plaintiff’s solicitors refused to accede to that request; indicating that, if the Defendant wished to amend her defence, an appropriate application in that behalf should be made to the Court.  In fact, no such application was ever made although, in the course of the hearing, I was furnished with a copy of a draft amended defence which purports to challenge the validity of the said agreement on a variety of grounds, including an allegation that the Defendant was induced to execute the said agreement by duress and fraud on the part of the Plaintiff.  Moreover, in the course of her sworn testimony before me, the Defendant challenged the validity of the said agreement on the following grounds, namely; (a) that, contrary to what is stated therein, there was no map annexed to the said agreement at the time that she executed it, (b) that, while conceding that she executed the agreement on the advise of her counsel, Mr. Bernard Madden (no relation) and with her “eyes open” in the sense that she understood what she was doing, it was not until after she had executed it that she was made aware, firstly, that her brother, the Plaintiff, would not have been available to give evidence, had the case not been compromised and, secondly, that the agreement for settlement was to be signed on the Plaintiff’s behalf by his son, James A. Griffin under a power of attorney.  The Defendant maintained that the failure to advise her of those two facts before she executed the said agreement amounted to a misrepresentation on the part of the Plaintiff and his advisors which vitiated the agreement so far as she was concerned, (c) that she was wrongfully coerced into participating in the negotiations which led to the said agreement by the refusal of the Plaintiff and his advisors to consent to an application by her estranged husband, Brendan Madden, for an adjournment of the proceedings which were then pending before the High Court on appeal coupled with a threat that, in the event that the said Brendan Madden had been granted an adjournment, he would be fixed with the costs thereof which, in the view of the Defendant, would have been prohibitive, (d) that, as a result of the prolonged negotiations which preceded its execution, she was exhausted by the time that she signed the said agreement and would have signed anything to escape from the Courthouse on that day and, for that reason, she said that the agreement should not be enforced against her and (e) that she was never told that the said agreement of the 13th October, 1994 was a new agreement and not, as she believed, an agreement which was supplemental to an agreement previously entered into by herself and the Plaintiff on the 3rd November, 1989.
	While, as I have indicated, prior to the hearing no application was ever made to the Court to amend the defence herein delivered on behalf of the Defendant and, accordingly, strictly speaking, the validity of the said agreement of the 13th October, 1994 was not an issue which I was required to determine, the fact of the matter is that, in the course of the hearing before me, the Defendant made application to me to permit an amendment of her defence to allow her to challenge the validity of the said agreement; an application which was opposed by Counsel for the Plaintiff, and, while I never formally adjudicated upon that application, I did hear evidence which satisfied me on the balance of probability that the grounds upon which the Defendant challenged the validity of the said agreement were without foundation.  In this regard, while senior counsel, Mr. George Brady, who negotiated the said agreement of the 13th October, 1994 on behalf of the Plaintiff, could not say whether or not the map therein referred to was actually annexed to the agreement at the time that it was executed by the parties, he was adamant that that map was referred to in detail throughout the negotiations which led to the said agreement to the extent that all of the parties thereto, including the Defendant, were fully aware of the contents thereof.  Moreover, while he could not say that the map was actually attached to the said agreement at the time that it was executed by the parties, the Plaintiff’s solicitor, Mr. Bernard Creavin, was satisfied that the map was with the agreement, when it was executed.  In the light of the evidence of Messrs. Brady and Creavin, which I accept, and given that, while she maintained that the map was not present when she executed the agreement, the Defendant conceded that she was familiar with the map and with all the terms of the agreement when she executed it, I am not persuaded that the agreement can be avoided because of the absence of a map at the material time (if it be so).  Neither am I persuaded that, even if it is a fact that, at the time that she executed the said agreement, the Defendant was unaware that, had the appeal which was then pending before the High Court been proceeded with, the Plaintiff would not have been available to give evidence and/or that the agreement would be executed on behalf of the Plaintiff by his son under a power of attorney that that would amount to misrepresentation which would entitle her to avoid the agreement; particularly, as I was assured by Mr. George Brady and accept that the Plaintiff was not a necessary witness at the hearing of the appeal and that he (Mr. Brady) had specific authority from the Plaintiff to negotiate the agreement on his behalf.  In this regard, also, I do not consider that the refusal of the Plaintiffs advisors (if it be do) to consent to an adjournment of the appeal which was then pending before the High Court could possibly amount to duress which wrongfully induced the Defendant to execute the said agreement, and neither am I persuaded that the Defendant’s alleged exhaustion at the time that she executed the said agreement or the suggestion that she did not then appreciate that it was  a new agreement that she was entering into, vitiated the agreement.  In that connection, given that she was advised by Counsel at the time, I have no doubt but that he would have explained to her that the agreement was a different one to that which she had signed in November, 1989 and I am quite sure that, if Mrs. Madden had indicated to her Counsel that she was exhausted or manifested signs of exhaustion, he would not have permitted her to sign the agreement.  In the light of the foregoing, while, as I have indicated, it was not, strictly speaking, an issue which I was required to determine, I do not think that there are any grounds upon which the validity of the said agreement could be impugned.  And I might add that in arriving at that conclusion I was very much influenced by the fact that, not only did the Defendant execute the said agreement, but she initialled seven different amendments thereto which had been made after the original draft had been typed up by the Solicitor who was representing her at the time.
	By order of the High Court dated the 14th October, 1994 made in proceedings entitled The High Court, Western Circuit, County borough of Galway, record number E13/1993 between Brendan Madden, Plaintiff, and John Anthony Griffin, Defendant, the said agreement of the 13th October, 1994 was received and made a rule of Court and, as I have indicated, it is my view that it is a valid agreement.  However, notwithstanding that it was executed over 6 years ago, it has yet to be implemented and, in the light of the evidence which I heard, it is clear that the failure to implement it is largely, if not entirely, attributable to the fact that the provisions of Clause 4(c) thereof have not been complied with, in that, the parties have failed to agree on a boundary between the properties respectively coloured blue and yellow on the map annexed to the said agreement.  In that regard, Clause 4(c) provides that that boundary is to be ascertained and agreed by the parties with their respective engineers from the title documents (the emphasis is mine) and that, in default of agreement between the engineers, an independent engineer would be nominated by the president of the institute of Engineers in Ireland to determine the location of the said boundary and that determination would be final.  Arising from the provisions of that clause, I heard evidence from Mr. Joseph Curley B.E., an engineer then instructed on behalf of the Plaintiff that, following the said agreement and later in the month of October, 1994 he met Mr. Malachy gallagher B.E., an engineer instructed on behalf of the Defendant, for the purpose of trying to agree the location of the said boundary.  The said meeting took place in the yard at the rear of the Plaintiff’s premises at 24 Middle Street, in the City of Galway and Mr. Curley told me and I accept that, without the assistance of any maps, he and Mr. Gallagher were able to agree the location of the said boundary from an inspection of the locus in quo.  Significantly, Mr. Curley also told me that the boundary so agreed between himself and Mr. Gallagher was located in the self same position as that indicated by the line A/B, coloured red, on a map dated the 17th December, 1998 (drawing number 991/01) prepared by Mr. Frank Harewood, who is also a consulting engineer, and whose services has been engaged by the Plaintiff to determine the location of the said boundary by reference to the title deeds to the properties owned by the Plaintiff and by the Defendant at Middle Street in the City of Galway.  However, although Mr. Curley and Mr. Gallagher were able to agree the probable location of the said boundary without the assistance of any maps, Mr. Curley gave evidence that, following that agreement, Mr. Gallagher produced an architects drawing which, apparently, had been prepared by a Mr. R.G. Emerson, architect and surveyor, in or about the month of July, 1939 which purported to show a proposed reconstruction of the Defendant’s premises at Middle Street, Galway and, in particular, purported to identify the boundary aforesaid at a different location from that which Messrs. Curley and Gallagher had agreed upon and, of course, at a different location from that indicated by Mr. Harewood on his map, aforesaid.  Mr. Curley gave evidence that, when Mr. Gallagher produced that architects drawing, he told Mr. Curley that the Defendant had indicated to him (Mr. Gallagher) that she would not agree to any boundary other than that which was shown on that drawing.  Accordingly, as Mr. Curley was not prepared to advise the Plaintiff that the boundary between the properties coloured blue and yellow on the map annexed to the said agreement of the 13th October, 1994 was located at the place shown on that architects drawing and the Defendant had indicated that she was not prepared to agree to any other boundary, there could be no agreement between Mr. Curley and Mr. Gallagher in that behalf.  By way of addendum to his evidence, Mr. Curley added that, in his view, the red line designated A/B on the map prepared by Mr. Harewood was the “logical and reasonable boundary” between the properties respectively coloured blue and yellow on the said map annexed to the said agreement of the 13th October, 1994; a view which was endorsed by Mr. James Roche, another consulting engineer, who was called to give evidence on behalf of the Plaintiff, but who had previously represented the Defendant’s interests between the years 1990 and 1993, and who was emphatic in the view that the line A/B on Mr. Harewood’s map indicated the “normal and natural boundary between the two properties”.  I saw no reason to doubt the evidence of either Mr. Curley or Mr. Roche; particularly, as their conclusions were not seriously challenged and Mr. Gallagher was not called to give evidence. 
	As I have already indicated, the services of Mr. Frank Harewood, a consulting engineer, had been engaged on behalf of the Plaintiff to survey the area in dispute and in the light of the maps annexed to the title documents thereto, to advise on the location of the boundary between the properties respectively coloured blue and yellow on the map annexed to the said agreement of the 13th October, 1994.  Mr. Harewood gave evidence that he carried out such a survey and, while doing so, he referred to maps annexed to the documents of title to the relevant premises of both the Plaintiff and the Defendant and their respective predecessors in title.  In particular, Mr. Harewood gave evidence that he measured boundaries he could identify on the ground and checked those measurements against measurements on the maps annexed to the several deeds.  In the course of so doing, he noted that the measurements of the boundaries on the maps annexed to the title documents of the properties belonging to the Plaintiff and the Defendant mirrored one another and, accordingly, he concluded that, in the light of the evidence of the title documents, the proper boundary between the properties respectively coloured blue and yellow in the map annexed to the said agreement of the 13th October, 1994 was that denoted by the line A/B outlined in red on a map (drawing number 991/01) dated the 17th December, 1998 which he had prepared and which he produced in evidence.  Moreover, Mr. Harewood said that he had seen no other map or no other document which was inconsistent with his findings other than the architects drawing made in the year 1939 to which I have already referred.  Under cross examination, it was suggested to Mr. Harewood that the dimensions on the enlargement maps annexed to some of the documents of title did not appear to be reflected when similar measurements were taken from the extract from the ordinance survey map which was also annexed to those documents and, while Mr. Harewood agreed that that is so, he said that the variation was due to the fact that it was extremely difficult to obtain precise measurements from a tracing of an ordinance survey map but that it did not impugn the accuracy of the measurements on the enlargement map.  This was a view with which Mr. Curley was in total agreement.
	In the light of the evidence of Mr. Harewood and, in particular, his conclusion that the boundary between the properties respectively coloured blue and yellow on the map annexed to the said agreement of the 13th October, 1994 is that denoted by the line A/B outlined in red on the map prepared and introduced into evidence by Mr. Harewood and given that that conclusion was fully endorsed by Messrs. Curley and Roche, I have no doubt at all but that that is the true boundary between those two properties.  Moreover, in the light of the evidence of Mr. Curley and, indeed, that which was given by the Defendant herself, I have no doubt but that the failure to reach agreement with regard to the location of the said boundary as envisaged by Clause 4(c) of the said agreement of the 13th October, 1994 was the Defendant’s refusal to accept any boundary other than that indicated in the architects drawing of 1939.  In that regard, while it would appear that that architect’s drawing was prepared in the year 1939, it seems that the construction works therein provided for were never actually carried out; at least, not in their entirety, although I understood from the evidence of the Defendant that she was responsible for having some of the works indicated on that drawing carried out.  That is at it may be, it was clear from the Defendant’s evidence that, insofar as she was concerned, the importance of that drawing is that, on the back of it, there are two manuscript notes each signed by a Margaret Griffin who the Defendant maintains was her mother.  In that regard, in the course of the evidence which he gave on commission, the Plaintiff was asked whether or not the handwriting on the back of the said architect’s drawing and the three signatures thereon which purported to be that of Margaret Griffin where, in fact, the handwriting and the signatures of his mother but, as I interpreted his evidence, he was not sufficiently familiar with his mother’s handwriting to enable him to identify it.  In those circumstances, given that Mrs. Madden was emphatic that the handwriting and the signatures on the back of that architect’s drawing were, in fact, that of her mother and that she also produced samples of what she said was her mother’s handwriting which, in my view, were a carbon copy of the handwriting on the back of the said architect’s drawing, I have no doubt at all but that the handwriting and the signatures on the back of the said drawing was that of the late Margaret Griffin, mother of the Plaintiff and of the Defendant.  In that regard, it is clear from what was written by the late Margaret Griffin on the back of the said architect’s drawing that she thereby purported to grant to the Defendant the property described on the front of the drawing.  Moreover, the Defendant left me in no doubt but that she considered that that architect’s drawing, together with her mother’s handwriting and her mother’s signatures on the back of it, amounted to a document of title which recognised her entitlement to the boundary for which she contended and it was in the light of that belief that she was not prepared, by her engineer, or otherwise, to accept a boundary at any other location, thereby frustrating implementation of the said agreement of the 13th October, 1994.  
	I can understand why, being a person without any legal training, Mrs. Madden could easily be persuaded that the said architects drawing, together with the text signed by her mother which was on the back of it, constituted a legal document whereby her title to the property comprised in that drawing was confirmed and I sympathise with her on that account.  The reality, however, is that it is not a document of title and it confers no rights; good, bad or indifferent on Mrs. Madden and, therefore, the contents of the architects drawing cannot be taken into account when trying to determine the boundary between the properties coloured blue and yellow on the map annexed to the said agreement of the 13th October, 1994 because, of course, that agreement specifically provides that the location of the boundary is to be determined by reference to the title documents of the parties thereto.  In any event, I think that the Mr. Emerson, who prepared that architects drawing, got it wrong insofar as the drawing purports to indicate the location of the disputed boundary because, as I have already indicated, I am persuaded by the evidence of Mr. Harewood, supported by that of Messrs. Curley and Roche, that that boundary is located along the line A/B which is designated in red on Mr. Harewood’s map.
	Arising from the foregoing and given that I am satisfied that it was because of Mrs. Madden’s insistence that she would accept no other boundary than that reflected in the architects drawing of 1939 which was largely, if not totally, responsible for frustrating the implementation of the said agreement of the 13th October, 1994, I think that the Plaintiff’s claim herein is well founded.  In this regard, and in the light of the evidence on commission which he, himself, gave, I am persuaded that the Plaintiff has always been prepared to implement the terms of the said agreement for his part and, indeed, rightly or wrongly, I have the impression that he would have been prepared to compromise on the location of the disputed boundary had there been any indication from the Defendant that she would be prepared to accept a boundary other than that indicated in the architects drawing of 1939.  In this regard, however, the Defendant appears to have been totally intransigent and, hence, the necessity for these proceedings.  However, allowing that I heard evidence in the course of the hearing which satisfied me that the area of the disputed property was only about 41 sq. feet, it seems to me that, even accepting that, as Mrs. Madden assured me, property values in Galway city are very high, it makes little sense for a brother and a sister to go to the trouble and expense of a hearing in the High Court to resolve the question of ownership for such a relatively small piece of property.  That as it may be, however, I am satisfied that, having regard to the Defendant’s intransigence, the Plaintiff was left with no alternative but to institute these proceedings and, as I have already indicated, I am satisfied that his claim herein is well founded and, accordingly, that he is entitled to an Order for specific performance of the said agreement of the 13th day of October, 1994 and I so order.  However, in the light of the evidence which I heard, notwithstanding the provisions of clause 4(c) of the said agreement, it has been established to my satisfaction that the boundary between the properties respectively coloured blue and yellow on the map annexed to the said agreement is that denoted by the red line designated A/B on a map (drawing No. 991/01) dated the 17th of December, 1998 prepared by Mr. Frank Harewood B.E., and I so declare.  Furthermore, I am satisfied that the Defendant was not entitled to erect, or to cause to be erected the 225 mm block wall, 1.6 meters high and 3.08 meters long which is presently located in the yard at the rear of the Plaintiff’s premises at No. 24 Middle Street, Galway, having been erected therein by or at the behest of the Defendants’ and I declare that the Plaintiff is entitled to demolish and remove the said block wall at the Defendants’ expense.
	While the Plaintiff is claiming damages for the loss , damage and expense which he maintains that he has suffered and incurred as a result of the Defendants’ wrongdoing, I have been requested to defer consideration of that aspect of the Plaintiff’s claim and the assessment of any damages to which he may be entitled to a later date and I am satisfied to grant that request.  In that regard, however, in the course of the evidence which she gave before me, the Defendant maintained that she was entitled to an income out of the Plaintiff’s bakery at Shop Street, Galway, but that, despite the fact that she had made requests in that behalf to the Plaintiff, she had received nothing.  She also complained that she had been subjected to regular harassment by the Plaintiff and by his son, James A. Griffin.  Apart from the Defendant’s say so, I heard no evidence to justify either of those claims and, therefore, I am in no position to adjudicate upon them.  However, if there is any reality to either of those claims; reality to the extent that the Defendant may be entitled to peruse claims through the court in respect of them, I would respectfully suggest that it is probably in the better interests of all concerned that the Plaintiff and the Defendant should resolve all of their differences (the amount of the Plaintiff’s claim for damages in these proceedings and the value of any claims which the Defendant feels that she may have against the Plaintiff and his son, James A. Griffin,) without further recourse to the court.