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1. The First named Plaintiff commenced these proceedings against the Defendants on 1st April, 1998. She is a retired lady aged 83 years who, with her late husband, had purchased her home at 8, Clonmannon Village, Clonmannon, Co. Wicklow in November 1990.

2. The First and Second named Defendants are husband and wife and, at all material times hereto, that is to say, between March 1996-September 1999 were the operators, owners and controllers of Clonmannon Retirement Village which is located not far from Hunters Hotel in Ashford, Co. Wicklow. The Third named Defendant is a limited liability company which throughout the relevant period was the nominee of the First and Second named Defendants and is the vehicle chosen by them for the purpose of operating Clonmannon Village.

3. Clonmannon consists of c. 24 acres comprising Clonmannon House, a gracious Georgian residence built c. 1780, lands which include lawns and mature trees, and 46 bungalows constructed close to the main house as part of the retirement village scheme, being 14 less than the original number of 60 bungalows intended to be built at the time when the retirement village was first marketed in 1984.

4. The property is in a sheltered rural setting and is approached via a long private roadway.

5. Clonmannon House itself is a three-level residence, comprising at hall level an impressive reception hall, three reception rooms with feature fireplaces, ladies and gents w.c.'s kitchen, pantry and office.

6. The first floor comprises seven bedrooms and a laundry. Between the first floor and hall level is a mezzanine where until 1993 a nursing station/infirmary was located.

7. The basement (as per the 1983 drawings) comprised three bedrooms, a games room, a wine store, a boiler room and kitchen, together with some stores and utility areas. When established in 1984, the aim of the then developers, Retirement International (Ireland) Limited, was to establish Clonmannon Village as a suitable environment for people of retirement age. The development was at that time the first of its kind in Ireland, although such schemes are commonplace in Europe and the United States.

8. From the point of a view of a purchaser into the village, the great attractions included not only the enjoyment of the grounds and Clonmannon House itself, but also the prospect of independent living, shared community activities with people of similar age and, perhaps most importantly, the provision of a wide range of services and care facilities which were detailed in the brochure which the purchasers, including Mrs. Honiball, were given prior to purchase.

9. In relation to Clonmannon Village itself, the brochure stated:-

10. At the time when Mrs. Honiball bought her bungalow, which was a two-bedroomed bungalow, the purchase price of same was £42,500. The service charge was £5,500 pa for one person and £7,500 for two persons.

11. An impressive range of facilities was promised by the brochure under a picture of smiling staff standing outside Clonmannon House. These facilities included the provision of an infirmary and a 24 hour medi-watch, with a nurse on call day and night to give help when needed. An emergency intercom system would link every bungalow with the main medical centre, ensuring immediate attention. A panel of doctors would be on call. A round the clock security system would protect the village. The purchaser would receive a main meal everyday, prepared by experienced catering staff and served in the clubhouse’s main dining room. There would also be a shop offering groceries and drinks, newspapers and magazines, a pub in the main clubhouse where resident s could meet for a drink, a hairdressing and beauty salon under the supervision of a well-known beauty counsellor, a laundry and dry-cleaning service and village transport which would be provided at cost, both for local excursions and regular visits to Dublin in the evening.

12. The brochure further promised that the facilities of the elegant clubhouse would be at the purchaser’s disposal “day and night” and the purchaser would also have the freedom of the estate itself, acres of beautiful grounds carefully landscaped with trees, shrubs and lawns - all permanently maintained by the village gardeners, and would be entitled to enjoy the private half mile walk to the beautiful Clonmannon 54 acre lake.

13. A lengthy list of activities was also promised.

14. In short, the brochure promised a version of heaven on earth to purchasers who became lessees of bungalows in the village.

15. The lease which Mrs. Honiball signed on 1st November, 1990 (hereinafter referred to as “the bungalow lease”) set out at par. B(1) the manner in which the village would operate:-

16. The lease provided, at least in Mrs. Honiball’s case, for a demise to her of her bungalow for the term of 45 years or the life of the lessee, whichever should be the shorter subject to a small yearly rent and the annual charge provided for by the Care contract ("the Care Contract") which Mrs. Honiball also entered into at the time of purchase. The lease further provided that on the death of the lessee endeavours would be made to re-let the bungalow on similar terms. Insofar as the premium or purchase price paid by the incoming lessee was concerned, the same would be paid to the original lessee or his estate after certain deductions, which included any cost to the lessor in refurbishing the bungalow prior to re-letting, together with legal and other fees incurred by the lessor in connection with any re-letting. In this manner it was intended that the sanctity of the retirement village scheme would be maintained and perpetuated into the future.

17. The Plaintiff’s lease was made with Rayhill Property Company Limited who were the successors in title to Retirement Village (Ireland) Limited. Another party to the lease was Home Affairs Limited (known as “the care company”) which had been set up as a separate entity for the purposes of providing the facilities set out in the care contract. The separation of lease and care contract was quite intentional and deliberate with a view to keeping 'title' and 'care' considerations distinct from each other and to provide a mechanism whereby if alterations to the scheme became necessary the same would take effect in the context of the care contract.

18. The initial years in Clonmannon were full of promise and happiness for the residents and the evidence I have heard at this hearing so confirm. However, this rural idyll was over the ensuing years to become mired in financial and legal controversy to such a degree that Clonmannon came to be known as one of the great social-engineering disasters of our time.

19. For the purposes of this litigation, which essentially is confined to very narrow issues, it is not necessary to explore in depth the various legal vicissitudes which beset Clonmannon, which included two receiverships, an inspection under the Companies Acts, a liquidation, proceedings in the High Court and also in the Supreme Court. It would require a legal tome of lengthy proportions to do justice to that entire saga.

20. I will summarise the essential facts in the following way. A receiver appears to have been appointed in respect of the estate and development in 1988, at which time Mr. George Robinson and Mrs. Mary Corneill purchased the estate and development. At that time they established a company known as Home Affairs Limited for the purpose of operating as a service company and providing and managing the services for the residents of the village.

21. Matters proceeded satisfactorily and services were provided to a sufficient degree until 1993. At that time, it appears Mr. George Robinson left the estate and Mr. John Corneill, son of Mary Corneill, became involved. Many of the residents who have given evidence in this case trace the onset of the major difficulties to afflict Clonmannon to the arrival of Mr Corneill. I have been told that service charges increased and services began to deteriorate in 1993 and that by the end of November, 1993 the majority of the residents had, as a result, ceased to pay the service charges. In December, 1993 the last of the services provided by the company and Hilltop Catering (set up by the Corneills to provide services) were suspended.

22. It is worth noting at this point that during the "Corneill years" (1988-1993), the upstairs floor of Clonmannon House was used as a nursing home. This nursing home was accessed by a number of the village residents, on payment of an additional charge. However, in breach of the terms of the planning permission the nursing home facility was extended to non-residents which state of affairs continued until the nursing home itself closed, along with Clonmannon House, at the end of 1993.

23. From 1993 - 1996, Clonmannon House was closed up. No services of any sort were provided to the bungalow residents, nor could they access Clonmannon House.

24. Against this very unsatisfactory backdrop, the then Minister for Enterprise and Employment appointed an inspector, Martin Cosgrove, pursuant to Section 12(2) of the Companies Act, 1990 to investigate the affairs of Rayhill Property Company Limited. He found significant breaches of the Companies Acts, including evidence of fraudulent activity and concluded that there had been a total failure of the substratum upon which the company was based. He accordingly advised that the company be wound up on the petition of the Minister.

25. A Receiver, Mr John Mair, was appointed on the 19th October, 1995 pursuant to a mortgage dated the 29th June, 1994 and on the 16th October, 1995 Mr Brian Conroy was appointed official liquidator of Rayhill Property Company Limited by Order of the High Court.

26. Without at this stage going into the complex background anymore than is necessary, an agreement was eventually reached between the Receiver, Mr Conroy as liquidator and Allied Irish Banks plc, the holder of the first charge over the freehold interest in Clonmannon, as to the best means of selling the property known as Clonmannon Retirement Village. The actual sale in 1996 was handled by Mr Mair as Receiver.

27. It is perhaps appropriate to move forward in time at this point to the Liquidator's final statement of account dated 6th July, 1999, when the Liquidator submitted same to the Companies' Office at the finalisation of the liquidation. His report states, in effect, that Rayhill Property Company Limited had been insolvent to the tune of £500,000. The liabilities of Hilltop Catering were approximately £110,000. The third Corneill company, which was called Home Affairs Limited, had liabilities of approximately £227,000. These figures did not take into account creditors who had not submitted for amounts outstanding.

28. This history has relevance from the point of view of the present proceedings, because some of the Plaintiffs maintain that the care contracts on foot of which the residents paid their annual service charge were, or at least could be, profitable. I have considerable doubts about any such contention, based not least on the history of Clonmannon Village itself. Part of the evidence submitted in this case were the minutes of a meeting of the residents of Clonmannon which took place in Hunters Hotel on the 15th July, 1996. At that meeting, a resident Mr Norman Montgomery gave a thumbnail history as to why the original companies concerned with Clonmannon went into liquidation, and the reason he gave (apparently without any contradiction) was that the numbers initially were far too small to make it financially viable. Mr David Furlong, son of one of the Plaintiffs herein, believes the original care contract was profitable because Mr Cosgrove deposed at par 19 of his affidavit that the profits of Rayhill Property Company Limited had been misstated and that the company enjoyed a profit of £160,265 rather than the loss of £66,324 recorded in the last audited accounts which appear to have been in 1992. However, having regard to the other findings made by Mr Cosgrove and, indeed the Liquidator, I greatly doubt if any inferences can safely be drawn as to what was going on in the Corneill companies in 1992-3. Still less do these companies provide any kind of coherent basis for any assessment of the profitability of the care contracts.

29. In the absence of any clear evidence on this topic, the Court can do no more than record its impression that, given the limited occupancy of the bungalows, and the fact that the upper floor of Clonmannon House was developed as a nursing home which was opened to non-residents, the management of Clonmannon Village was an undertaking which required huge financial underwriting which does not ever appear to have been present in the entire history of Clonmannon Retirement Village from its inception and continuing right up to September, 1999, when the estate and development were finally sold to Tara Court Properties Limited, who, I am told, have a solid financial base for the type of enterprise involved.

30. Against the appalling financial and legal backdrop outlined above, one might reasonably assume that no private purchaser would ever have come forward to take on such a daunting challenge. Yet that is precisely what did occur in March, 1996 when Jane McGrath and her husband signed a contract to purchase Clonmannon Retirement Village for the sum of £270,000. The contract was signed on the 20th March, 1996 and the transaction was completed on the 12th August, 1996 when the entire purchase monies were paid over.

31. Why did they do it? It seems Mr and Mrs McGrath embarked on this venture in the teeth of advice, professional and otherwise, that it was madness to get involved in Clonmannon. Mrs McGrath has no background in either health care or business. She was at the time a legal executive in Cornelius Sheehan and Company, a Solicitors practice run by her sister Joanne Sheehan, who, when acting on behalf of the Receiver in sending out tenders, had disclosed to her sister that Clonmannon was coming on the market.

32. The following paragraph from the minutes of the first meeting which the McGraths had with the residents of Clonmannon Village on the 19th August, 1996 conveys the kind of thinking at work at the time of purchase:-

33. Mrs McGrath has told this Court, and I accept her evidence in this regard, that she had a vision for, and commitment to Clonmannon, to make it a successful retirement village which would be 'the envy of Ireland'.

34. She immediately set about contacting the existing residents. At that time there were 39 care contracts. The remaining seven bungalows were outside the scheme, because the McGraths bought five of them and two others were owned and occupied by freeholders. When they came to Clonmannon there were 18 bungalows occupied by lessees, the remainder being estates of deceased lessees and represented by their legal advisers.

35. On the 16th May, 1996 Mrs McGrath wrote in the following terms to the residents:-

36. The letter later continued:-

37. A number of other informal contacts were made, including a meeting with Fr. Arthur O'Neill who advised Mrs McGrath that an injunction had been obtained in the past by a resident to restrain Mr Corneill from moving into Clonmannon House on a residential basis.

38. Sadly, and almost at once, it seems a number of residents, including the Plaintiff, formed a view that Mrs McGrath must be opposed if user of portion of Clonmannon House as a family home was part of the intentions of the McGrath family. Mrs McGrath wrote to Mrs Honiball on the 4th July, 1996 stating:-

39. This letter highlights two other areas of dispute that were to open up between the McGraths and a small number of the residents, in addition to the objection to residential use of Clonmannon House. This small group of residents, including the Plaintiff wished to see the retention of the nursing home on the first floor at Clonmannon House and wished also to retain fully all the benefits provided for by the original care contracts.

40. These became the three issues with which this litigation is concerned, namely:-

41. As far as Mrs McGrath was concerned, the planning permission did entitle her to move in and live in Clonmannon House and use same as a residence. Before doing so, it was necessary to expend considerable monies in refurbishing Clonmannon House where rising damp was evident in the basement, together with wet rot in the office and leaks in the roof. Further monies needed to be expended on reclamation of the sewage treatment plant, waste disposal, garden reclamation and maintenance, building, reconstruction and repair of the main house, both in relation to the basement area, where it was intended the residents should enjoy their facilities under the varied care contract and in making the rest of the house suitable as a residence for the McGrath family. In addition the private road leading up to Clonmannon required repairs. Mrs McGrath gave evidence that about £300,000 was expended in addressing these urgent problems. This figure however, included all legal and other expenses at that time.

42. Following consultation with her accountants, she also determined that the original care contracts were simply not financially viable. Further, they involved the provision of services in many instances to lessees who were not in occupation of their bungalows. Many of the residents did not want some of the services which the lessors/owners were obliged to provide and maintain under the old care contract.

43. With a view to making a start, Mrs McGrath convened a number of residents' meetings for the purpose of consulting with the residents and these 1996 meetings took place in Clonmannon House on the 19th August, 18th September, and 7th November.

44. It is clear from a study of these minutes that a small handful of residents were already sceptical about Mrs McGrath and disinclined to provide co-operation. The vast majority, however, were totally in support of the efforts of Mrs McGrath to put in place a new or varied care contract. Indeed, I have the impression they were most anxious to support any steps which would lead to a resumption of normal life and services in Clonmannon.

45. However, Mrs McGrath, in my view very prudently, decided to circulate a written questionnaire as to the residents' care requirements to all the 39 lessees, to which they received 28 replies from residents, bungalow lessees, executors and beneficiaries in September, 1996.

46. These written questionnaires revealed the following:-

47. Insofar as Mrs McGrath was concerned, and I will later deal with the legality of what followed, these responses gave her the necessary authority to place a varied or tiered contract in position to replace the old care contracts. The price of the revised care contract was fixed at £2,700 plus V.A.T and same was formally put in place in 1998. It operated in fact from July, 1997 onwards with the support of the vast majority of Clonmannon lessees.

48. The essential features of the varied contract were the provision of essentially basic services under the care contract with the provision of optional services to lessees (who had discharged the compulsory care charge) who were prepared to pay extra for the following:-

49. The basic services included the provision of a "country club" in the basement area of Clonmannon House including a dining room, bar, reading room, kitchen, launderette, office, store and toilet, and a library. In addition, basic services were to include the maintenance of the village as a whole, including lighting, gardening, collection of refuse, periodic cleaning of windows, provision of ground security and the maintenance of the avenue leading from the main house to the village.

50. A small number of residents who opposed the use by the McGraths of Clonmannon House as a residence were also adamant that the 'old' care contract be retained. These were Mrs Honiball, Mr Furlong, Rose McGivney-Nolan and Mary Illingworth.

51. They were also Notice Parties in the liquidation proceedings which in May, 1997 came on for hearing before the late Mr Justice Shanley. The McGraths were represented at this hearing, as were the four Plaintiffs mentioned above. Having read the affidavit of the Liquidator, Mr Justice Shanley gave leave to the Liquidator to disclaim the 'old' care contracts with effect from the 25th September, 1996. On the same occasion, the Liquidator was given approval to sell the leasehold interest in the property to the McGraths for a nominal sum. I will deal with the issue of title separately.

52. This order was made against a background whereby 25 residents, lessees or executors supported on affidavit the disclaimer of the old care contract. They did so, quite simply, because they were aware of the terms of the new varied or tiered contract which Mrs McGrath proposed putting in its place and the Court was so advised. It is interesting to note that these same affidavits recorded that the deponents had no objection to Roderick and Jane McGrath living in Clonmannon House with their family. However, this transfer by the Liquidator of the leasehold interest to Mac Enterprises Limited, which was the new care company, did not take place without 28 visits to the High Court and Supreme Court, the latter resulting from an appeal from Mr Justice Shanley's decision brought by Mrs Honiball. I have heard evidence, and this has not been contradicted, that the only objector initially in the High Court to the disclaimer was Liam Furlong. The other Plaintiffs, Martha Honiball, Mary Illingworth and Kathleen Foley, only joined in at a later stage. Clearly, however, they had done so by the 30th May, 1997 and the same four persons appealed the Order of Mr Justice Shanley to the Supreme Court which further prolonged matters until a settlement was arrived at on the 16th January, 1998.

53. Under the terms of that settlement, Liam Furlong, Martha Honiball, Rose McGivney-Nolan and Mary Illingworth withdrew their appeal against the Order and judgment of Mr Justice Shanley, and the Liquidator for his part agreed not to disclaim the care contracts but rather to assign the benefit and burden of same to the purchaser's nominee, Mac Enterprises Limited the third named Defendant herein.

54. It was specifically acknowledged by the settlement and in particular by the Appellants that no claim could or would arise on foot of the care contracts prior to the date of the settlement which was expressed to be in full and final settlement of all matters between the parties.

55. In the Supreme Court the McGraths again had 28 affidavits of support from both residents, lessees, executors and beneficiaries, many of whom were desperate to finalise their involvement in Clonmannon and to see an end to litigation. I would again stress that all of this took place against a background where the Court was informed that a varied care contract was being put in place, or being sought to be put in place, to replace the original care contract.

56. Needless to remark, there was tremendous public interest in all these developments and many of the majority of the residents in Clonmannon were extremely unhappy with what they saw as a one-sided media presentation of events in Clonmannon, and I think, in fairness to the silent majority of residents in this case, it is only fair to reproduce the letter which twelve of the occupants of bungalows issued to the national newspapers on the 7th November, 1997:-

57. Sadly, what became a somewhat public campaign, as Mrs McGrath perceived it to be, of vilification against her and her husband necessitated the issuance of further such letters and statements from the majority population of Clonmannon residents both at the time of the Supreme Court settlement and in the months which followed.

58. Mr Liam Furlong has told the Court, and I can understand his point of view on this, that the Plaintiffs herein did go to the media with their version of events, but they did so because they were not invited to meetings of the residents after the first few meetings and suffered a degree of social isolation because they were in conflict with their neighbours and the McGraths. As he saw it, they had no alternative but to proceed in this manner.

59. It was against this unhappy background that Mrs Honiball, some two and a half months following the "full and final settlement of all matters between all of the parties" in the Supreme Court commenced these proceedings on the 1st April, 1998.

60. By subsequent Order dated 22nd April, 1999, the Master joined the other Plaintiffs as co-Plaintiffs in the proceedings.

61. In the Statement of Claim, the Plaintiff asserts that she and her husband entered into the bungalow lease and care contract in November, 1990.

62. She further and accurately contends that the rights and obligations under the care contract had been assumed by the Defendants or, more accurately, Mac Enterprises Limited and that the Defendants, as successors in title to Rayhill, Home Affairs and Hilltop, have the obligations to provide the services and facilities arising from the said agreement. The Plaintiff further alleges that she entered into her agreement on foot of representations contained in various and diverse brochures upon which she relied prior to the execution of any formal documentation or agreement.

63. She alleges that by letter dated the 23rd June, 1997, the Defendants sought to vary the obligations and liabilities on foot of the care contract. Furthermore, it is alleged that, wrongfully and in breach of agreement and in breach of duty arising by virtue of representations made, the Defendants moved into Clonmannon House which at all material times was to have been the clubhouse and to provide the venue for the facilities to be furnished on foot of the said care agreement.

64. Par 12 of the Statement of Claim, inter alia, alleges:-

65. The Plaintiff claims specific performance of both the leasehold agreement and the care contract, or, in the alternative, specific performance of the terms of the settlement of proceedings in the Supreme Court in January, 1998. An injunction is also sought restraining the first and second named Defendants from entering upon or residing in Clonmannon House. At the outset of the proceedings, leave was sought to amend the Statement of Claim by including a claim for damages, for deprivation of access, distress and inconvenience. While the McGraths have now moved out of Clonmannon House the Plaintiff nonetheless seeks a declaration as to her entitlement to access Clonmannon House, not least because new purchasers had taken over since September, 1999 and their long term intentions in relation to Clonmannon House are outside the Plaintiff's knowledge.

66. The Defence essentially maintains that the care agreement the subject matter of these proceedings carries with it the entitlement on the part of the third named Defendant, as assignee of same, to vary the agreement in certain circumstances and that it was made clear at all material times to the Plaintiff that it intended to vary the care contract.

67. The Defence further contends that it has effectively varied the care contract, so that what the Plaintiff alleges are breaches of contract are no more than valid variations of same.

68. Any misrepresentations or representations of any sort are denied. It is further asserted that the Plaintiff was obliged under the care contract to pay care charges payable thereunder by quarterly payments in advance. Given that the Plaintiff has failed and neglected to pay same since November, 1993, she is not entitled to demand provision of such services or such relief as claimed in the statement of claim.

69. While it was not specifically pleaded, the Plaintiff also maintained in evidence that it was her understanding that the Defendants were obliged to continue the nursing home which had been maintained by the Corneills until the end of 1993 on the top floor of Clonmannon House. I will deal firstly with that issue.

70. Mrs Honiball stated in evidence that the existence of the nursing home in Clonmannon was part of the overall scheme. She was supported in this view by Mr Liam S Furlong and his son David Furlong. It was a matter of particular concern to the Furlongs because Mrs Furlong had from time to time been a patient in the nursing home prior to 1993. While payment had been made for this service for Mrs Furlong, it had been a discounted rate and less than was charged to outsiders who were admitted during the same period.

71. Insofar as the brochure to which I have already referred may in any way be relevant on this issue, it is quite clear that the obligation was limited as follows:-

72. However, what was actually offered by the care contract by way of nursing services was extremely limited and was that as set out at pars 11 - 12 of the First Schedule to the standard care contract:-

73. The Plaintiffs contend that this must be taken as meaning that a nursing home would be provided and that nursing services would be immediately on hand in the sense that a nurse would at all times be in Clonmannon House to deal with any exigencies that arose.

74. However, I am quite satisfied that Mrs Honiball and Mr Furlong are mistaken in this contention, no doubt due to the fact that nursing home facilities were, as a matter of fact, available up to the closure in 1993. The nursing home aspect of Clonmannon House may well have been developed in an effort to generate more income, but really that is beside the point.

75. The care contract cannot simply be construed as imposing any other obligation than that so clearly indicated. Mr Brady contends on behalf of the defendants that items such as "bee stings" and similar minor ailments were intended to be addressed by par 12, and there is indeed evidence in the case to support the fact that services of that nature were provided at mezzanine level by a nurse quite separately from the nursing home functions which were being carried on on the floor above.

76. I accordingly hold that any contention that the Defendants were obliged to restore the nursing home which had existed in Clonmannon House during the time of the Corneill's involvement is completely without foundation. It was undoubtedly there, but the Plaintiffs' contract fell short of entitling the Plaintiffs to demand its continuance.

77. Under the care contract, the care company agrees to provide the care facilities to the lessees subject to the payment of the care charges.

78. The first schedule details the services to be provided which include and the provisions/maintenance of the clubhouse, lighting, maintenance, repair and cleaning, the provision of an infirmary, an oratory, a library, an emergency call system, the provision of a qualified nurse on call for minor medical complaints, the provision of one daily meal to the lessee and the management of all the services and facilities set out in the schedule.

79. The variation provisions are those contained at par C which provides:-

80. It is quite clear from the minutes of the second meeting with the residents that Mrs McGrath was alert at a very early stage to the requirement under the care contract to muster a certain percentage of support before a varied or tiered care contract could be put in place.

81. It has to be said that this care contract is a most unfortunate piece of legal drafting.

82. In essence it allowed the care company withdraw all facilities if 25% of the lessees supported such a proposal. That percentage requirement has now been upped to 45%. In other words, minority rule, rather than majority rule, could determine the level of services which the residents might receive.

83. Firstly, in relation to Mr Callanan's contention that this formula of words does not permit any variation, I think it is clear that, if the care company is entitled to withdraw all the facilities, then the contract must be construed as entitling the care company to vary such contract also. This, in effect, is nothing different from withdrawing the old care contract and putting a new contract in its place.

84. Mr Callanan on behalf of the Plaintiffs submits that the care company can only do this if it has formed the opinion on reasonable grounds and with the assistance of appropriate evidence that such a decision is "in the interests of the village as a whole". He points out that no expert costing of the services was ever undertaken and that therefore the decision to vary the contract was arbitrary and unreasonable. He further contends that the purported variation amounts to a fundamental breach of the care contract because one of the effects of the purported variation was to deny the Plaintiffs access to Clonmannon House other than at basement level.

85. Leaving altogether to one side, as I indicated I would, the question as to whether or not the care contracts were financially viable if properly managed, it seems to me Mr Callinan's submissions cannot possibly be correct.

86. I agree that expert evaluation of the annual service charge would be one factor going to whether or not Mrs McGrath bona fide formed an opinion that a variation was in the best interests of the village. She has told me she did do a calculation in consultation with her accountant, who attended the first meeting with the residents, but I have no independent evidence as to any calculations arrive at. However, I cannot ignore the fact that she did engage in such an exercise and was entitled to form conclusions herself. Equally, I cannot ignore the fact that an extensive process of consultation with the residents took place in a series of meetings, questionnaires and discussions before the varied care agreement was put into effect. From the point of view of the residents, it was infinitely preferable to have services switched back on again, albeit in the basement, rather than have no services. The fact that 75% of the residents, if not more, agreed to the proposal speaks for itself. The Defendants at all times had the requisite percentage of support to permit a variation.

87. I am satisfied Mrs McGrath has discharged the onus of proof in relation to this issue.

88. The alteration of a fundamental term, if indeed access to the entire of Clonmannon House was a fundamental term, becomes an issue only to the extent that the contractual parties do not agree to a variation clause in the contract. In my view, the Plaintiffs agreed in advance to a variation of their care contract in the event of the requisite percentage existing.

89. A fundamental "breach" of the care contract in my view would lie in either a total denial of access to Clonmannon House or a total denial of services contrary to the wishes of 45% of the lessees..

90. Finally, it was suggested by Mr Callanan in opening the case that the necessary majority was yielded up by the questionnaire only because that majority comprised "old, insecure and frightened residents" who were "shamefully and cynically exploited" by the Defendants.

91. No evidence whatsoever in support of that contention has been adduced and in my view it should never have been made.

92. It is, I think, pertinent to point out in this connection that of the 28 questionnaires returned, almost half would have come from the legal advisers to deceased lessees who are representing their estates and acting in the course of administration. That fact alone renders the suggestion of exploitation and improper exploitation quite absurd.

93. The Plaintiffs also maintain that, by moving the care facilities to the basement level of Clonmannon House, the Defendants wrongfully interfered with the Plaintiffs' right to access the remaining portions of Clonmannon House. The complaint, in particular, relates to the ground floor, where the residents used enjoy unimpeded views of the lawns and trees in the gracious rooms located on that floor.

94. I have myself visited Clonmannon House in the course of this hearing and have noted the separate access which is now provided for the residents to enter Clonmannon House, not by the front entrance, but via a specially constructed pathway at the rear corner of the house, with steps descending into the basement area. On entering the house at this level, there is a bar which has been refurbished to a very high degree. There is also a reading room/lounge, dining area, games room and separate external utility areas. As of present, following the sale by Mrs McGrath of Clonmannon for £1.5m to Tara Court Properties Limited, the residents have again the facility, should they so wish, to re-enter the ground floor portion of the premises. However, given that the elevator from the basement level to the ground floor is now out of commission and, having regard to the fact that they have enjoyed the current state of affairs in an habitual way for a number of years, I think it is unlikely, and the evidence so suggests, that those residents would wish to return to other portions of the house. I stress that the Defendants contend that this facility is a permission only, and not by way of right.

95. Nonetheless, it is a right for which the Plaintiffs herein contend and is an issue which requires to be addressed from a number of perspectives including (A) the Plaintiff's title, (B) planning permission, (C) representations made in the past, (D) the Defendants' title.

96. From a contractual point of view, any right of the Plaintiff to access a defined portion of Clonmannon House can only arise under either:-

97. House which cannot now be reduced to access on a restricted basis to the basement of Clonmannon House.

98. The fourth Schedule to the lease contains covenants by the care company including the following covenants:-

99. These provisions are said by Mr. Callanan to be meaningless in the absence of a right of access to the entire house.

100. Mr Brady, however, submits that these provisions do not purport to grant the lessee any property rights in or over Clonmannon House. The only easements or rights over Clonmannon House or the grounds are those set out in the second part of the First Schedule to the lease, which said easements do not confer any right of access to Clonmannon House.

101. Mr Brady has support for his submission from Rory O'Donnell, a Solicitor and conveyancing expert, called on behalf of the Plaintiffs who expressed the view that any contractual right to access Clonmannon House exists solely under the care contract.

102. Mr Callanan submits that the care contract and lease are inextricably interconnected and refer to each other. The care contract must be read subject to the lease. Together, they define the concept of the retirement village, an integral part of which was the access of leaseholders to Clonmannon House.

103. At clause A(vi) the "clubhouse" is defined to mean the property known as "Clonmannon House, situate in the village”. Under clause 15 of the First Schedule the obligation of the Defendants is defined as follows:-

104. In Mr O'Donnell's view, the right to access Clonmannon House was not a property right, but was a contractual right under the care contract for the purpose of enjoying the services and the facilities to be provided under the care contract.

105. He was asked by Mr Brady:-

106. He further pointed out that the care contract was not registered as a burden on the freehold folio or the leasehold folio in relation to Clonmannon.

107. Taking into account the submissions made by Mr Brady, and the evidence offered by Mr O'Donnell, it seems to me that the care contract did no more than permit or provide such access to Clonmannon as was reasonably necessary for the enjoyment of services or facilities to be provided therein.

108. It follows that once the care contract contained a variation mechanism which was lawfully exercised, as I found it to have been so exercised, I must conclude that no sustainable claim arises under the care contract which would permit the Plaintiffs in these proceedings to access the ground floor of Clonmannon House as of right under the contract.

109. An Bord Pleanala on the 16th March, 1984 confirmed the decision of Wicklow County Council made in October 1983 to grant planning permission for the development of a retirement village consisting of bungalows and the use of Clonmannon House as a residential/social centre at Clonmannon House, Clonmannon, Co Wicklow. The original plans and drawings strongly suggest that no residential occupation independent from the retirement village was envisaged.

110. The only variation to the planning permission was one made on the 14th November, 1984 permitting the change of use of the mezzanine and first floor from residential to nursing home. In March, 1993 the planning section complained that accommodation had been publicly advertised for Clonmannon House contrary to condition 3(f) of the permission confining the use of the nursing home to tenants in the village.

111. Following the acquisition by the Defendants of Clonmannon House, their Solicitor wrote to Mr Philip Duffy in the Planning Section of Wicklow County Council on the 4th September, 1996 indicating:-

112. Thereafter the Acting Staff Officer, Planning Section, Wicklow County Council replied by letter dated 16th December, 1996 stating:-

113. Thereafter on the 8th September, 1998 it appears that Mr Liam Furlong, one of the Plaintiffs wrote to the planning department of Wicklow County Council complaining about the residential user by the McGraths of Clonmannon House.

114. Despite such complaint, Wicklow County Council did not see fit to take any action against the McGraths in respect of their residential user (which apparently was a weekend user only) of Clonmannon House.

115. Mr. Bernard Mullarkey, Staff Officer, Planning Section, Wicklow County Council, gave evidence that Wicklow County Council never formed a view as to what proportion of Clonmannon House should or could be used as a residential unit. It was clearly envisaged at the time of the granting of the original permission that portion, at least, of Clonmannon House should be available for some residential user as might be necessary to properly manage the house and village.

116. There is nothing in the planning permission dimensions of this case which suggests clearly to the Court that Mr and Mrs McGrath could not avail of portion of Clonmannon House for residential purposes or at least not since the letter of 16th December, 1996. No prosecution of any sort has been brought against the McGraths by the planning authority.

117. Furthermore, even if it could be said that the Defendants were exceeding the parameters of the original planning permission, this cannot thereby confer on the Plaintiffs any right of access to the ground floor of Clonmannon House. It merely opened up the possibility of a claim under Section 27 of the Planning Act for injunctive relief to restrain any purported unauthorised development or user. No such application was ever brought, nor is any such issue canvassed in the pleadings herein.

118. The Plaintiffs further contend that these Defendants are bound by the representations contained in the 1984 brochure which, effectively, promised that Clonmannon House would be “an extension of your home”.

119. It is implicit in the text of that brochure (and not really contested by Mr. Brady) that the clear implication of the brochure was that the residents would be enjoying the facilities on the ground floor of Clonmannon House.

120. One need only quote the following extract from the brochure to see that such implications must arise because the basement area commands no views:-

121. Mr. Brady contends that the implications of the brochure, insofar as they are in conflict with the contract documents, cannot override or supplant same.

122. Mr. O’Donnell in evidence stated that the prudent conveyancer would not look for the brochure that had been produced on the original sale of bungalows in the context of advising a subsequent purchaser. At most it would give rise to an action for misrepresentation against the representor. It could not be used to vary, contradict or add to the conveyance.

123. Mrs. McGrath gave evidence that she never saw the brochure until it was first produced by Mr. Furlong at the first residents meeting on 18th August, some six days after the transaction had been closed. I accept the truthfulness of her evidence in this regard. It is supported by the evidence of Ms. Joanne Sheehan, who confirms the brochure was not amongst the contract documents available to her when sending out tenders.

124. Mr. Brady further submits, correctly, I think, that liability arising from a representation does not extend to purchasers for value without notice (Everest & Strode, the Law of Estoppel, pp. 326-327).

125. Even if the Third named Defendant was in someway bound by representations made by Rayhill, such representations would not in any event prevent the Third named Defendant from acting on its right to vary the care contract and the Plaintiffs have not made any case that the Third named Defendant was estopped from varying the contract as a result of any representations made. There was no suggestion at any stage in the evidence that the Defendants or their predecessors in title waived any legal rights to which they were entitled.

126. For these various reasons, I reject the Plaintiffs’ contentions in relation to representations in this case.

127. The Plaintiffs further contend that rights of access to Clonmannon House can be deemed to vest in the Plaintiffs either under (a) Section 72(1)(j) of the Registration of Title Act, 1964 or because (b) the Defendants freehold title is subject to a covenant which prevents them using Clonmannon other than in accordance with the planning permission for the development and the use of the same for the purpose of an exclusive retirement homes area.

128. The title to the freehold interest was acquired by Roderick and Jane McGrath by a transfer from AIB Bank as mortgagee. They took subject to the lease dated 10th September, 1984 (the Care Company lease) made between Retirement International Limited of the first part, the Investment Bank of Ireland Limited of the second part and Retirement Ireland Limited of the third part.

129. They also took the freehold subject to the several bungalow leases.

130. The Care Company lease of 10th September, 1984 was subsequently rectified. The Care Company lease comprised the entire of Clonmannon House and the entire of the common areas.

131. As against the freehold, the Care Company has had possession and occupation.

132. The Care Company lease dated 10th September, 1984 is a separate leasehold folio. Mac Enterprises Limited became the registered owner of this folio.

133. In short, the Care Company Limited, Mac Enterprises Limited and its predecessors in title held Clonmannon House and the entire of the common areas, but not the bungalows, or the sites of the bungalows under the Care Company lease.

134. While accepting the conclusiveness of the register as regards title of the owner to land, Mr. Callanan submits that all registered land is subject to the burdens detailed at Section 72 of the Registration of Title Act, 1964, including (1)(j) which include:-

135. Mr. Callanan submits that the Plaintiffs' right of access to Clonmannon House is in the nature of an equity which this sub-section incorporates. “Rights” are defined in the Act (s.3) as including “estate, interest, equity and power”.

136. That being so, the purchaser in acquiring registered lands, takes subject to such rights, even without notice.

137. He further submits that it is not necessary for him to show occupation of the entire lands before he can rely on this right. Occupation of part alone suffices.

138. Some support for this proposition can be found in a recent decision of the Court of Appeal in Wallcite Limited -v- Ferrishurst Limited, (1999) 1 AER where Walker LJ considered the topic of overriding interests (as such rights are called under the 1925 Land Registration Act in England) in the context of land registration and stated as follows at p. 990:-

139. Mr. Brady submits that the rights which the Plaintiffs enjoy under the care contract are not rights in land. In Wallcite the right was an option to purchase, and as such a clear interest in the land. All the Plaintiffs have is a right to receive “care facilities” which said rights are capable of being varied without the consent of the individual once the appropriate procedure has been adopted. As such they could not be considered in any sense as “rights in land” according to normal conceptions of title to real property.

140. In any event the Plaintiffs were not in actual occupation of the land comprised in the leasehold folio or any part thereof. In fact, Clonmannon House had been closed down for three years prior to the acquisition thereof by the Defendant purchasers.

141. The correctness of these submissions seems to me apparent and I must accept this.

142. Finally, Mr. Callanan submits that the Defendants are bound by the covenant contained in the transfer dated 6th March, 1984 between Frances Colonna and the Defendants’ predecessor in title whereby the transferee covenanted with her as follows:-

143. Again, Mr. Brady points out that enforcement of this covenant is purely a matter for Frances Colonna and that no ius tertii arises in the Plaintiffs in the event of any breach of such a covenant. In any event, the covenant does not purport to prevent the owner/manager of the retirement village using a portion of Clonmannon House for residential purposes if same is in accordance with the planning permission which, since December, 1996, I have found to be the case.

144. I also accept Mr. Brady’s submission on this point.

145. I have come to the conclusion therefore that the Plaintiffs fail on all aspects of the claim before this Court.

146. It is one of the ironies of this litigation that following the sale by the Defendants to Tara Court Properties Limited, the upstairs portion of Clonmannon House was once more made available to any of the residents who might choose to avail of them. The drawing room remains furnished to this day.

147. The McGrath family now live elsewhere, although Mrs. McGrath will apparently remain on discharging managerial duties for the new purchasers.

148. Tara Court apparently intends to construct a new nursing home and clubhouse in Clonmannon Retirement Village. Future plans may include the separate sale of Clonmannon House, although clearly the residents of Clonmannon Retirement Village will require to be fully consulted before any further variation of the care contract takes place. It is I think worth placing on record that Mrs. McGrath, without pressure from any source, agreed in 1998 to amend the percentage necessary to approve variations in the care contract from 25% to 45%. That decision however, reflects the fact that the rights of the bungalow lessees were less than adequately protected under the old care contract.

149. It is difficult not to feel sympathy with all sides to this tragic dispute which has added another lengthy chapter to the litany of legal misfortunes affecting Clonmannon Retirement Village.

150. However, I must dismiss the Plaintiffs' claim.