Sunday, 9 March 2014

Part 8: My Story.

What the hell is Innocent Misrepresentation?

The year was 1982 and Wendy and I couldn’t have been happier now a sale was agreed on Glencarrig; we had our third son Daniel to complete our family. I asked for and got an 8 week closing date on the sale of the house giving me time to find something for us to live in. To say we were relieved is an understatement. I had three wonderful healthy children, a stunning wife and money soon to be in sitting in my bank account. In fact so happy was I that I decided to throw a big celebration party in Glencarrig as a sort of goodbye to the house we hated so much knowing nothing could go wrong, now that the contracts had been signed and the deposit paid.

It felt that at last my life and my family’s life had turned for the better. I couldn’t have been happier that was until
Wendy recived a call from her father, who was now living back in Cape Town, telling her that her mum was gravely ill and suggested that Wendy should immediate make arrangements to travel to be with her. Her mum sadly passed away shortly after she arrived. (photo: Wendy's mum and dad)

With Wendy away I set about looking for a new property to purchase, this time I wanted to find something well within my budget allowing me surplus for investment etc and with the recession deepening the choice of excellent properties available with heavily reduced asking prices had now become the perfect purchasers market . The 1980s in the Republic of Ireland was one of the state's bleakest times. An extremely irresponsible budget by the majority Fianna Fáil government in 1977, which included abolition of car tax and borrowing to fund current spending, combined with some global economic problems to ruin the Irish economy for most of the 1980s, causing high unemployment and mass emigration. The Charles Haughey and Garret FitzGerald governments made this bad situation much worse with more massive borrowing and tax rates as high as 60% (with one Fine Gael finance minister suggesting people were not being taxed enough). Ireland was being referred to as ‘the sick man of Europe’. So I was doubly delighted that we had sold Glencarrig at such great price.

Four weeks after the house contracts had been signed I had a call from my lawyers asking me to come in to see them as soon as possible. I hadn’t a clue what it was about but I immediately made myself available at their offices in Dublin.
The senior partner John Gore Grimes ushered me into his office and delivered the devastating news that the purchaser didn’t want to go ahead with buying Glencarrig and wanted his deposit returned immediately!!! I was dumbstruck; I felt that I had been just given the news that I had a week to live. Words could never describe how I felt at that moment.. I remember thinking this just cannot be happening; this must be the worst nightmare I’ve ever had, surely I will awake shortly and all of this conversation never happened. Surely he couldn't get out of a contract he had already signed and paid a deposit?. Unfortunately this was no bad dream this was happening there and then in my lawyer’s office. He explained that the purchaser, after signing the contract, did a search on the property and found the new Southern Cross motorway, which was still on the drawing board, would affect part of the paddock area. He also claimed he specifically asked me about the pending motorway and that I told him that it wasn’t going to affect my land and that I also advised him he should at least get his lawyers to check it out. John could see how devastated I was and explained that all is note quite lost and that we should sue him for what’s called in law Specific Performance which translates in law meaning that; it compels a party to execute a contract according to the precise terms agreed upon. Before I had time to think he then landed another hammer blow; that the execution of this recommended action could take up to a year before it gets to court. A YEAR!!! Not only was the bank putting pressure on me but the recession had sent the property market into freefall and I couldn’t even put the house back on the market before the case gets to court. I was now in deep trouble.

I began to think things couldn’t get worse, until that is, one Saturday afternoon.
I was at home watching Ireland playing England rugby international when the phone rang. Anyone who’s experienced financial difficulties will understand what I’m about to say; I hated the phone ringing, I was always fearful it was the bank or someone looking for money I didn’t have, but the weekend at least gave you a rest bite from that worry, I answered the call which was from Barbarellas manager informing me that he had just been called by Dublin Fire Brigade telling him that there was a fire at Barbarellas. I jumped in my car and met him at the club. Barbarellas was destroyed!! Standing there looking around the smouldering club I knew I had lost the Barbarellas and my last source of income!!!

The call came eventually that the court case had been set and that a series of meetings with my appointed senior and junior counsel would take place immediately in the Four Courts law library. Nicholas Kearns was to be my senior counsel. (See photo)
I briefly knew Nicholas and I also knew he had an excellent reputation. The day the case was heard in the high court was one of the most stressful days of my life, something I never wanted to go through again, little did I know that I would be back here in a few years time, but that is a whole different story which I will cover later in an up and coming chapter.
I remember during cross examination the purchaser admitted that he was a conveyance lawyer and that my senior consel asked him why then did he not check before signing a contract re the planned Sothern Cross motorway? After all he was obviously on notice or he would never have asked the question whilst inspecting the property in the first instance. The purchaser replied that he had in fact asked me and that I had told him that to the best of my knowledge that the land was not going to be affected and he should check it out. I felt then that the purchaser was in trouble, being a conveyancing lawyer he SHOULD have checked it out, after all he must have heard of Caveat emptor, ‘Let the buyer be aware’. I believed I now had an excellent chance of winning this case. My lawyers, senior and junior counsels were all also quietly confident, in fact so much so that Nicholas promised that if by any chance I should lose this case he would defend me for free on appeal in the Supreme Court.

The following week was like living on a knife edge. I slept terribly and would wake up on the hour every hour thinking the unimaginable that I would lose the case. Finally the decision day had arrived. As I sat nervously in court surrounded by my legal team the judge handed down his verdict that he was awarding the case to the purchaser and that his deposit plus interest needed to be returned immediately. The court was packed, not only with both sides legal teams but my family and a large press contingent (Photo: Dublin's Four Courts where my case was being heard)
. You could clearly hear a gasp going out when the verdict was delivered. The judge said he was truly sorry that this was that outcome as he had no alternative but to make this decision based on the law of Innocent Misrepresentation. He went on to explain to me by giving an example of what Innocent Misrepresentation means: A man trying to sell his car he knew to be faulty by advising the purchaser to get the car checked out by the AA. The point being that the purchaser of the car would feel confident that the car must be okay as the seller would never have recommended that the AA should check it out. He went on to explain to me; I should never have advised the purchaser, after being asked if the motorway was going to affect my land, to ‘check it out’ I should have simply said ‘I don’t know. This is what’s called ‘Innocent Misrepresentation’!!

Hard to believe that years later my case would become a case study at the University of Dublin's law school stating that I should never have taken this case to court as I had no chance of winning !

I had said ‘things couldn’t have got worse, who was I kidding?’

Early in ’83 I sold Glencarrig for just enough to clear my debt and leaving us with a little to help start all over again. I was now 34 years old with a wife and three young children what to do?
I remember a family member Jack Cohn always enthusiastically talking about a place called Marbella known as the playground for the rich and famous, located in southern Spain on the Mediterranean. Louis Murray also recommended that I should take a trip to check the place out as it was a great favourite with the Irish and possibly a place to think of re-establishing myself. So with nothing to lose except the airfare and a hotel I went out and had a look around. I immediately investigate the nightclub scene only to find out it was booming, clubs like Pepe Moreno and Joys were packed. I liked the atmosphere, the wonderful weather and low prices compared to Dublin, a perfect place I thought to bring up a young family. So I started in earnest to see what the possibilities of starting up a club in Marbella.

I just can’t remember exactly how but I was introduced to the ex Formula 1 champion James Hunt. At the time he owned a discotheque called Oscars and was interested in selling it.(Photo: James Hunt in Oscars with Princess Gunilla von Bismarck and I think it might be Sir Dai Llewellyn)
I was shown around the club by his lawyer and liked it on sight. It was so different than the basement clubs in Dublin. Firstly it was a standalone property, it had magnificent gardens (I was told that the club was originally a chinese restaurant therefore the eastern style gardens) it was all mirrored and brass with marble floors, all so different to anything one would see in Dublin. I loved the place and now the only thing standing between me and my 'next big thing' was a question of; D.I.N.E.R.O I hadn’t got any or very little that is. I felt sure once I reopened the club and brought my expertise into play it be as simple as printing money. A meeting was set up between James and myself which was spent on his luxury yacht eating, drinking and frolicking around in the blue seas of Marbella. After many hours of negotiating he agreed to let me have the club on a 12 month lease agreement with the option to purchase. I was delighted and flew back to Dublin victorious waving the contract which I signed with James Hunt like Neville Chamberlain waving the agreement for peace that he signed with Adolf Hitler.

Pack your bags Wendy were off to live in Marbella.

To be continued.......

NOTE: Please remember that each of these chapters that make up part of My Story are just synopsis and when I get around to it I will complete the stories by adding not only words but some of the photographs that I have received since I started this journey. Thank you.

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