It is agreed that the court may exercise this jurisdiction only if it is demonstrated beyond argument that the plaintiff’s claim must fail. As a corollary, it must be assumed that the facts will be established as the plaintiff alleges them. With those strictures in mind, I will endeavour to describe the plaintiff’s claim.

The plaintiff is an engineer and businessman, residing near Lucan, Co Dublin. The proceedings concern an alleged joint venture project for the development of substantial areas of land in West County Dublin.

The plaintiff pleads, in the statement of claim, that prior to March 1997, he and one Peter Dwyer were “in the process of developing certain lands at or near but not limited to those lands situate at the Phibblestown/Castaheany and Allendale areas of County Dublin for residential purposes and, in addition, were engaged in the process of evaluating the overall future development potential of the entirety of the lands ....”

It is here necessary to quote in full certain paragraphs of the statement of claim:

"5. Furthermore and with a view to the overall development of the lands as aforesaid, and in particular certain other additional lands hereinafter referred to as "the Guinness lands", which same were situate at or near those outlined in the previous paragraph hereof, (all such lands being more particularly delineated in the map annexed hereto), it was decided between the Plaintiff and the said Mr Peter Dwyer, to act in co-operation with the First and/or Third Named Defendants herein for the purposes of the future development of all such lands, which said Defendants were in the process of developing certain additional lands in the Castaheany/Phibblestown area of County Dublin, which they had purchased previously.

6. Prior to embarking upon their intended/proposed development of the lands as aforesaid, the Plaintiff, together with the said Mr Peter Dwyer and the First and/or Third Named Defendants, decided and so agreed that the most appropriate manner by which they should proceed with the development of the Guinness Lands referred to previously, was by way of a joint venture partnership business. It was at all times material hereto envisaged by the said parties that the said joint venture partnership would be established through the vehicle of a limited liability company.

7. Accordingly, by way of a joint venture partnership Agreement made on or about the 5th day of March 1997 between the Plaintiff of the one part, the First and/or Third Named Defendants of the second part and the said Peter Dwyer of the third part, the said parties agreed to acquire and develop the aforesaid lands, which said development was to include, inter alia, the construction of residential properties on the lands situate at Phibblestown/Castaheany and Allendale, County Dublin, together with the installation and provision of all road connections and underground services connections both to the said lands as well as to all other lands adjacent thereto which could then, or would in future, avail of such services.

8. At all times material hereto, it was an express and/implied term or condition of the aforesaid Agreement, which said term or condition was evidenced by way of a note and/or memorandum in writing, that all profits and financial benefits on the aforesaid lands at Phibblestown/Castaheany and Allendale, County Dublin, as well as such similar profits and financial benefits arising from the provision of both road connections and all underground services connections to the said lands, together with all other lands in the vicinity thereof, which same either availed of the provision of the said underground services connections or would do so in the future, (with all such profits and benefits accruing and being calculable subsequent to the discharge of all reasonable expenses and outgoings incurred in the development of the said lands); would be divided between the aforesaid parties on the basis of their agreed shareholding in the aforesaid body corporate identified at paragraph 6 hereof, which same was to be in the following manner, namely:-

In a reply to a request for particulars, it is alleged that the shareholding in the body corporate to be formed was to be in the ratios: 40% each to the first named appellant and Mr Peter Dwyer, and 20% to the plaintiff. The shareholdings were to be applicable to:

(i) to the totality of the Guinness lands

(ii) to any Agreement entered into by the First and/or Second and/or Third Named Defendants, or one or other of them or any combination thereof with a Company known as Manor Park Homes Limited and/or its nominee whereby the said Manor Park Homes Limited and/or its nominee availed of the aforesaid underground services connections and road connections.

(iii) to any Agreement entered into by the First and/or Second and/or Third Named Defendants, or one or other of them or any combination thereof with the owners and/or developers of those lands knows as the Greene Bros. lands whereby the said owners and/or developers of the said lands availed of the aforesaid underground services connections and road connections."

The terms of the alleged agreement and the circumstances surrounding its negotiation were further particularised in a reply to a request for particulars made by the appellants. Two aspects of these particulars merit attention, namely the nature and extent of the intended development and the means by which it was to be financed.

The Development

The lands were to be all lands mentioned which would benefit from the installation of an underground infrastructure which could provide all necessary services and connections, including road connections. The development was to involve the construction of residential properties on the Guinness lands as well as the installation of the underground infrastructure necessary to drain those lands as well as all other lands in the near vicinity. The plaintiff states that he and Mr Peter Dwyer had already retained the services of experts to design the underground infrastructure. The particulars state that there were to be two large surface water mains together with foul sewer drains, manholes and the requisite pipe work to drain all the lands in the natural catchment in the Castaheany/Phibblestown area. They also state that all this was explained to and discussed in detail with the first named appellant at a meeting in February 1997, whereupon the latter asked to be allowed to co-operate with the plaintiff and Mr Dwyer in order bring into effect their advices, apparently in relation to these services.

Finance

The particulars state that the plaintiff and Mr Peter Dwyer had in late 1996 taken professional advice with a view to assembling a package to finance the acquisition and development and installation of services they then envisaged. They also state that, prior to the meeting of 5th March 1997, the first named appellant had expressed serious concern about his existing indebtedness and his unwillingness to provide finance for the underground services envisaged by the plaintiff. In reply to a question about financing of the acquisition, the particulars further state that the matter was raised by the plaintiff at the meeting on 5th March 1997 at the behest of the appellants and was to be discussed at a later stage as stipulated in a document of 5th March 1997, to which I will next refer, and which is central to the present issue.

It is agreed that a handwritten document was prepared by the plaintiff at the meeting of 5th March and subsequently signed by the first named appellant and Mr Peter Dwyer, but not by the plaintiff. In so far as is necessary, the plaintiff relies on this document to satisfy the requirements of the Statute of Frauds.

The parties differ fundamentally regarding the contractual value of this document. The plaintiff pleads that it represents evidence of a concluded agreement; he swears in one of his affidavits that the purpose of his “writing the terms which had been agreed between the parties was to formalise those terms.” The first named appellant says that the entire discussion was tentative and that many matters were uncertain, queried or to be discussed or agreed. These are issues that cannot be determined on a motion of this kind. The plaintiff’s version must be preferred for present purposes.

The handwritten document contains, firstly, some very general calculations of acreages and prices, producing a sum of £7.9, meaning £7,900,000, rounded up to “£8m.” The words, Newco Ltd, next appear, followed by an informal note of 50% each to “SR” (Seamus Ross) and “PD” (Peter Dwyer), - (minus) 10%, followed by a question mark, being written under each. Finally, there appears “Finance to be Discussed.” As already mentioned, the plaintiff, in the particulars supplied, acknowledges that the financing of the acquisition was raised by the first named appellant, but that it was “to be discussed at a later stage as stipulated in the document ...”

The general tenor of the contract pleaded in the statement of claim and the particulars is that it involved the acquisition by the joint venture, through the vehicle of a company to be formed, in which the plaintiff, the first named appellant and Mr Peter Dwyer would be the shareholders in agreed shares, of the Guinness lands upon which the company would construct a housing development. In addition the joint venture would construct an underground infrastructure and foul and surface water services, which would serve both the Guinness lands and extensive other lands in the area, including some lands already in the ownership of the first or third named appellants and lands owned by third parties. The revenue earned by any of the parties from the provision of such services to other developers would accrue to the joint venture company.

In his affidavit grounding the motion to dismiss the claim, the first named appellant maintains that there was no concluded contract between the plaintiff and any of the defendants. He agrees that he signed the handwritten document of 5th March and does not contest any of its contents. He implicitly accepts that one or other of the defendants subsequently acquired the Guinness lands, but says that the price was £19,000,000 and not £8,000,000, as mentioned in the document. The plaintiff says that the latter sum was discussed as the minimum price at the meeting of 5th March. The first named appellant says that Mr Peter Dwyer did not do anything subsequent to 5th March “to advance negotiations or tender requisite capital.”

By way of reply, the plaintiff repeats that it was the first named appellant who requested that the issue of finance be dealt with at a later time. He merely adds that the latter “was aware that [the plaintiff] and Mr Peter Dwyer were at an advanced stage of finalising the financial arrangements,” that these arrangements were then discontinued but that the first named appellant said that the raising of finance would not be a problem for “Newco.”

The legal principles to be applied on an application of this kind are not in dispute. As explained by reference to the judgment of Costello J in Barry v Buckley, at page 308, it must be clear that the plaintiff’s claim must fail. The learned judge continued:

“The jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff’s case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irreparable wrong to the defendant.”

Hardiman J, giving judgment in Supermacs Ireland Limited and another v Katesan (Naas) Limited and another [2000] I.R. 273, dismissing an application of the kind at present before the Court, approved a dictum of Keane J, as he then was, in Lac Minerals v Chevron Corporation (High Court, unreported, 6th August 1993):

"The judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the plaintiff’s contention."

It is also clear, and I accept, that the Court should be willing to assume in favour of the plaintiff that an appropriate amendment of the pleadings might save his case. Furthermore, it may be difficult to succeed on such a motion based only on the absence of a note or memorandum which satisfies the requirements of the Statute of Frauds. Something may be found on discovery. It is different where, as in Barry v Buckley, there is a note but it is headed “subject to contract.”

The question is whether the plaintiff’s claim in the current case is so deeply flawed that it cannot succeed. I assume, in the plaintiff’s favour, that there was an agreement, as pleaded: a joint venture agreement, where a company was to be formed between identified persons in agreed shares, for the purchase of an identifiable holding of land at an agreed minimum price; that housing development was to be carried out on those lands and that the opportunity of that development was to be used to carry out agreed and identifiable drainage and similar works and to plough the proceeds into the joint venture. I merely say that I assume that, because none of that is the decisive consideration in my mind. I would, in fact, have serious doubts about the uncertainty of the description of the agreed development - what density; what type of housing? - and of the sewerage and drainage works: over whose lands and according to what specification? How could the agreement be binding if the land could not, as envisaged, be bought for the assumed price of £8,000,000?

The fatal defect in the plaintiff’s claim is, in my view, the clear evidence, not disputed by the plaintiff, that an integral part of the agreement of 5th March 1997 was that how the entire joint venture was to be financed was left over for discussion at a later date. The plaintiff has described this term, in the particulars furnished as a stipulation and from his affidavit, it is clear that he wrote down the terms in order to formalise them. To his credit, therefore, he does not seek to escape the implications of the signed handwritten document, from which it is abundantly clear that the issue of finance was left over for future discussion. That the matter of finance was of importance to both parties is agreed to be the case. The plaintiff and Mr Peter Dwyer had been investigating it for some considerable time. All parties knew that considerable capital investment would be required to finance the intended project. This was not a case of a straightforward sale of property from vendor to purchaser, where the law would not import or imply, in the absence of express reference, any need for financial provision. The purchaser would be assumed to have the means. The agreement in this case was for the formation of a company. The parties did not address the question of the capital of that company at all. Most crucially, they agreed in the terms which the plaintiff was so careful to formalise that this issue would be discussed at a later date.

This provision was, indisputably, an important part of any arrangements between the parties for the purchase and development of lands. In effect, the development could not take place without finance. The parties may well have reached an agreement in principle to enter into a joint venture and on their respective shares. However, they remained in negotiation so long as they had not agreed on finance. Hence, there was no concluded contract. I would allow the appeal and dismiss the plaintiff’s claim.

There are a number of alternative pleas in the statement of claim. In my view, these are all subsidiary to the central question of whether there was a concluded agreement. In particular, the claim based on negligent misstatement is, in reality, a restatement of the contract claim. It is not a genuine claim in negligence for misstatement of fact. It relates to the future.

For these reasons, I would allow the appeal. I would dismiss the plaintiff’s claim in its entirety.