High Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IEHC/2004/425.html
Cite as: [2004] IEHC 425
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Horan v. O'Reilly & Ors [2004] IEHC 425 (3 December 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/425.html Cite as: [2004] IEHC 425 |
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Neutral Citation No: [2004] IEHC 425
THE HIGH COURT
[2001 No. 369P]
BETWEEN
MARTIN HORAN
PLAINTIFF
AND
FRANK O'REILLY, MICHAEL McHALE, JOHN JOYCE, SEAMUS O'BRIEN AND AN POST NATIONAL LOTTERY COMPANY
DEFENDANTS
NOTE OF EX TEMPORE JUDGMENT of Mr. Justice Clarke delivered on the 3rd December, 2004.
It hardly goes without saying that the circumstances of this case are most unfortunate, involving a group of friends, some of them good friends, who have fallen out over the winnings of the lotto.
As pointed out in the Australian case cited to me by the Defendants of Cole v. Crain S.Ct. NSW 8/89 [1989] NSW Lexis 11361 BC8901838, one of the difficulties in respect of issues of this type is that the detailed legal analysis that has to be gone into when a dispute arises is very far from the informal arrangement entered into when parties set up a lottery syndicate.
The starting point is the legal framework. In that regard I am grateful for the New South Wales Court decision which Mr. Smyth has referred me to – a case which operates within a similar legal regime. This decision is persuasive as to the law applicable in Ireland. The issues can be presented in one of three ways. Firstly, a breach of fiduciary duty, a breach of trust on the part of the person organising the syndicate. Secondly, the way that the syndicate is conducted may give rise to a plea of estoppel. Thirdly and most practically and of most relevance, is the plea of a breach of contract. This arises when the arrangements for the establishment of a syndicate amount to a contract, there is an obligation to abide by that contract, and thereby abide by the rules of the syndicate.
A problem arises since people investing a small amount of money are unlikely to draw up detailed rules in a formal way for the conduct of such a syndicate. It is only when an issue such as in this case arises that an attempt must be made to establish what were the terms of the contract entered into by the parties.
It seems to me that this is the key legal question – what were the terms of the arrangements between the parties. Do they require that Mr. Horan is entitled to be considered a remaining member of the syndicate and thus entitled to share in the winnings?
It was pointed out in the Australian case that a person who seeks to show that he has a share in a ticket which was bought at a time when he did not pay for the ticket has a difficult case to make. However, on the facts of the New South Wales decision there was only very scant evidence that anyone had had tickets bought for them in circumstances when they had not been paid.
It is clear in this case that Mr. O'Brien did operate such a system for at least some period of time. Mr. Horan was carried by the syndicate notwithstanding that he was in arrears.
This case on its facts is significantly different from the New South Wales case. It was clearly established that for some period of time there was a process whereby tickets were bought where Mr. Horan had not paid up front. Mr. O'Brien bore that expense, he could recoup it from Mr. Horan at a later date.
It was common case that this happened on at least one occasion. It was also common case that there did exist a syndicate in which Mr. Horan was a member and that for at least some period of time tickets were bought when Mr. Horan was not in credit, which tickets were funded by Mr. O'Brien in respect of the Mr. Horan's share. On one occasion at least, payment to catch-up was accepted.
The key differences between the parties on the facts were firstly the length of time for which Mr. Horan was in arrears in October 2000. Secondly and more importantly the events of a meeting, in October were highly controversial. It was agreed that a meeting did take place in that month in some shape or form Both counsel accepted that this meeting was central to the issues between the parties. I agree that the key to this case turns on that meeting in late October.
If what happened was as Mr. Horan said, then the facts were as follows:
Mr. Horan was in arrears from time to time, and when he was approached for payment in October, he made the payment requested. The winning ticket was bought in January 2001, at which stage he was still in arrears, but not to any greater extent than the custom and practice that had been allowed to develop.
If these are the true facts, then Mr. Horan is entitled to succeed, on the basis that the contract between the parties permitted arrears and the arrears at the relevant time were within permitted and established bounds.
On that basis and whatever the views of the other defendants, they allowed Mr. O'Brien to be the manager of the syndicate. Mr. O'Brien allowed arrears to build up, and therefore it seems that all the defendants are bound by the arrangements he made.
Therefore if it is as he alleges, Mr. Horan remained in the syndicate, and was a member of the syndicate when the winning ticket was drawn.
Equally, if I accept the evidence tendered by the Defendants, it is clear that Mr. Horan owed a more significant sum, and in substance refused to pay a sum of money in late October 2000 to clear those arrears.
Even on the defendants case it would have been better if there was a more formal indication given by Mr. O'Brien that Mr. Horan was no longer in the syndicate at that stage. It would therefore have been difficult for Mr. Horan to maintain that the syndicate continued with him as a member after such an action. If the plaintiff was formally asked to clear the arrears he either paid up or refused to pay up and brought the syndicate to an end.
In attempting to reach a conclusion as to these disputed facts, I am not required to be certain as to what happened. This is a case of civil jurisdiction, and I must decide it on the balance of probabilities. I am required to do the best I can.
Both sides in the course of closing submissions accepted that there is a real risk in circumstances such as this of people's memories being muddied by subsequent discussions, particularly when issues which at the time were not very important, have subsequently become very important.
The issues that arose in January 2001 after the ticket was drawn gave rise to very active debate in the locality. Therefore, even though there are significant contradictions on the evidence, I am sure that at least in many cases the parties are telling the truth as they now believe it to be but that does not mean that they are accurate as to what did, in fact, happen.
It was pointed out that I should try to isolate "islands of fact". Any hard and fast facts tend to give some guidance to the Courts, particularly in a case like this.
On Mr. Horan's account, the meeting in October 2000 was an entirely non-descript event. He was asked for money and he paid it. Even on the account of Mr. O'Brien it is difficult to see that the meeting at the time would be considered to have been important. Unfortunately in this case there were few enough islands of fact.
At one stage it appeared that the question of the purchase of a tractor might give clues as to whose recollection might be correct. But at the end of the day the difference between the parties was again as to who was to be believed.
It was common case that the tractor was handed over in the beginning of June 2000, and paid for in November 2000. The issue was whether the tractor went back to the plaintiff before it was paid for.
One matter that I do feel is of some relevance is the question of the winnings of the syndicate. It was common case that there were some small winnings which the syndicate had won from the period of formation either to October 2000 or to January 2001.
Some of the facts in relation to those winnings are clear. Both Mr. Horan and Mr. O'Brien agreed that Mr. Horan had not been told that the winnings were to be invested in extra lines in the lotto. Mr. O'Brien's explanation for this was that he did not see Mr. Horan. He said he did tell the other defendants. But what is certain in those circumstances is that it is difficult to see the justification for spending Mr. Horan's share of the winnings on additional lines. Mr. Horan's share of the winnings cannot be taken into account for defraying what Mr. O'Brien had spent on Mr. Horan's account, as it was common case that there was no agreement that winnings they were to be used as a set-off. Nonetheless the winnings had to be dealt with in some way and in particular if the syndicate came to an end so far as Mr. Horan was concerned.
There was no explanation, and particularly no explanation from Mr. O'Brien as to why some arrangement was not made as to the winnings if, as he asserts, Mr. Horan had departed from the syndicate. It might have been that Mr. O'Brien might have used it as a set-off, but he did not say that that was agreed or that that was what happened.
Mr. O'Brien was very unclear as to the total amount of the winnings. He said that the accumulated winnings never exceeded £46.00 or £47.00. It was reported in the newspaper that it might have been £100.00. It did not seem clear if the £47.00 was the total amount of winnings, or the height of the accumulation.
If there was a definitive end to Mr. Horan being in the syndicate as is alleged by the defendants, something would have had to be done with his share of these winnings. No attempt was made to deal with those winnings at all. I place some reliance on this fact.
It is undoubtedly the case that in respect of some of his evidence Mr. Horan was unclear, to the point of being exasperating. I have come to the conclusion that this is due to his nature rather than an attempt to be evasive or untruthful.
I find on the balance of probabilities that the facts are broadly as outlined by Mr. Horan and for the reasons indicated earlier this means that I find for the plaintiff. I accept that Mr. Horan is broadly correct and in particular that the substance of the meeting in early October is as he has stated. Having reached this conclusion and I find as a fact that the syndicate operated in a way which vested in Mr. O'Brien the authority to carry out all practical matters. Mr. O'Brien permitted the system to operate whereby Mr. Horan would be in arrears, as he was trustworthy. At Mr. O'Brien's request in late October 2000, Mr. Horan paid the arrears. At the time the winning ticket was drawn he was not in any greater arrears than in the past. I find no facts from which it can be inferred that Mr. Horan had refused to pay arrears and removed himself from the syndicate. Therefore I am driven to the conclusion that he remained in the syndicate up to the date when the winning ticket was drawn. Therefore he is entitled to share in the proceeds of the winning ticket.
As I understand it the sum is lodged pending the outcome of the proceedings. I therefore make the declaration sought, that the plaintiff is beneficial owner of one fifth of the monies comprised in the National Lottery Lotto Jackpot of the 6th day of January 2001. I further direct that the monies held be paid to the plaintiff, together with costs. There is a stay for 21 days, and thereafter in the event of an appeal.
Approved: Clarke J.