Table of Contents

Introduction..........................................................................................para. 1

The Course of Proceedings.........................................................................para. 7

The Agreement....................................................................................para. 12

(a) Introduction of Mr O'Connor and Mr Burton to Mr Tracey.....................para. 12

(b) The Contract of Employment ......................................................para. 16

(d) The Side Letters of the 24 th and 27 th February....................................para. 22

Dispute as to the Agreement.....................................................................para. 24

Temporary Reduction of Fees and Mr Tracey's Suggested Role in the Growth of the New Venture...para. 27

The Events Prior to the 4 th October 2004.......................................................para. 36

(a) The BS News Article......................................................................para. 36

(b) The Court Case............................................................................para. 38

The Decision to Terminate the Agreement......................................................para. 40

Events of the 4 th October 2004...................................................................para. 44

The 4 th to 19 th October 2004.....................................................................para. 55

The Events of the 19 th October 2004............................................................para. 65

(a) Mr Tracey's Evidence....................................................................para. 68

(b) Mrs Tracey's Evidence ..................................................................para. 73

(d) Mr Burton's Evidence....................................................................para. 75

(e) Ms Lyons' Evidence.....................................................................para. 78

(f) Mr Alan O'Connor's Evidence.........................................................para. 79

Exchange of Correspondence Between the 19 th October 2004 and 6 th December 2004...para. 80

Exchange of Correspondence Between 22 nd August 2005 and the Commencement of Proceedings on the 1 st December 2006...para. 86

Medical Evidence..................................................................................para. 91

(a) Professor Aiden Corvin, Consultant Psychiatrist.....................................para. 92

(b) Dr David Lombard, General Practitioner..............................................para. 96

Actuarial Evidence...............................................................................para. 109

Proceedings in Other Causes....................................................................para. 110

Discussion and Conclusions Regarding Preliminary Matters and Events from the 4 th to the 19 th October 2004....para. 111

(a) The Parties to the Agreement..........................................................para. 111

(b) Which Contract is Operative? Was the Contract of Employment Superceded?....para. 112

(d) Conclusions in Relation to Mr Tracey's Role in the Financial Growth of the Company...para. 118

(e) Conclusions in Relation to the Termination Notice of the 4 th October 2004.....para. 122

(f) The Events Between the 4 th and 19 th October 2004.................................para. 129

(g) Summary and Findings in Relation to the Events of the 19 th October 2004...para. 140

Discussion and Conclusions on the Medical Evidence .......................................para. 142

(a) Medical Diagnosis.......................................................................para. 142

(b) Causation .................................................................................para. 145

Assessment of the Claims in Light of the Court's Findings.................................para. 147

Conclusion in Respect of the Legal Effect of the Notice of Termination..................para. 148

(a) No Reason for Termination............................................................para. 148

(b) Good Faith...............................................................................para. 151

Discussion and Conclusion in Relation to the Events of the 19 th October 2004, Notice Period and Entitlement to Work on the Premises...para. 159

Claim for Injury, Distress and Damage to Reputation Arising from the Breach of Contract...para. 178

Discussion and Analysis for the Claim in Tort - Negligence and Breach of Duty......para. 187

(a) Nervous Shock...........................................................................para. 191

(b) Reputational Damage...................................................................para. 194

(d) Causation and Loss of Earnings........................................................para. 201

Conversion.........................................................................................para. 212

Monies Due Under the Contract - The Invoices.............................................para. 213

Discussion and Conclusion on Amounts Due.................................................para. 219

(a) Calculation of Sums Due...............................................................para. 225

(b) Interest....................................................................................para. 229

VAT Issue..........................................................................................para. 231

Observation on Criticism of Expert Witnesses...............................................para. 232

Summary of Findings.............................................................................para. 236

Introduction

The plaintiff, Mr Kevin Tracey, claims damages for breach of contract, negligence, conversion, nuisance and breach of duty of care. He seeks damages for humiliation, intimidation, embarrassment and for psychological damage including depression, anxiety and post-traumatic stress disorder alleged to have been suffered by him as a result of the actions of the defendants. Mr Tracey represents himself in the proceedings.

The claim centres on the termination by the defendants in October 2004 of an agreement which had been entered into by the parties earlier that year, and the manner of its termination. The terms "defendants" and "agreement" are used advisedly at this time because disputes exist as to the basis of the agreement and the proper defendants to the action.

The named parties to the proceedings are as follows:

a. The plaintiff, Mr Tracey, is a consulting engineer who at the relevant time traded under the style and title of Kevin Tracey T/A Engineering, Design and Management. His expertise, as his business name suggests, is in the field of engineering design and management. Mr Tracey obtained his qualifications from the Dublin Institute of Technology (DIT). He has maintained contact with that institution and has involved himself in its academic activities. He holds a master's degree and became a member of many national and international committees. He has worked in Ireland and overseas. Mr Tracey gave evidence of his hard work and dedication when undergoing education and acquiring his qualifications. His education and standing mean a lot to him.

b. The first defendant, Mr Michael Burton, is a quantity surveyor. He had a long-term business relationship with Mr Charles O'Connor, also a quantity surveyor.

c. The second defendant, Mrs Anne O'Connor, is the widow and personal representative of the estate of the late Charles O'Connor, who died on the 4 th September 2021. Mr O'Connor gave evidence before he died. Following his death an application by Mrs O'Connor to be appointed her late husband's guardian ad litem for the purpose of defending the proceedings was acceded to on the 21 st December 2021.

d. The third defendant is a limited liability company which was formed by Mr Burton and Mr O'Connor. It was incorporated on 5 th February 2004.

e. The fourth defendant, FPQ Consulting Engineers, is a business name which was registered on the 21 st June 2004.

The four named defendants, at this stage, are referred to collectively as "the defendants". This is for ease of reference rather than as a description of collective or individual roles in the disputes under consideration.

On the 31 st January 2004, Mr Tracey entered into a written agreement with the defendants. It is described as a "contract of employment". The defendants contend that this was superceded by a "contract for services" which was executed on the 24 th February 2004. While accepting that a contract for services was agreed, Mr Tracey maintains that the contract of employment was never terminated. The defendants also contend that two side letters, dated the 24 th February 2004 and the 27 th February 2004, form part of the agreed arrangement. The letter of the 27 th February 2004 stipulated the necessity for prior approval of overtime (herein referred to as the "overtime letter"). Mr Tracey accepts that the letter of the 24 th February 2004, which incorporated certain terms and conditions, is part of the agreement, but not the overtime letter. The agreement made provision for a sixteen-week termination period. The defendants served notice of termination on the 4 th October 2004. Mr Tracey worked on the defendants' premises until the 19 th October 2004 during which period matters became tense. On that day Mr O'Connor and Mr Burton informed him that a decision had been taken to end their business relationship and requested that he leave the premises within one hour. Mr Tracey maintains that the required notice period was not honoured and that the contract was breached when, without reason, it was abruptly terminated on short notice and that the manner in which that was done has caused him psychological injury and reputational damage, for which he seeks to be compensated.

The circumstances surrounding the termination of the agreement on the 4 th October 2004 and in particular what occurred on the 19 th October 2004, form the basis of Mr Tracey's claim. What then occurred is a matter of considerable dispute. Mr Tracey believes that the decision to serve the notice of termination on 4 th October 2004 was connected with his involvement in court proceedings which were unconnected with his work and which attracted publicity in mid-to-late September 2004. He contends that he worked hard to establish the business and that because of financial difficulties, the defendants effectively used the court proceedings and their publicity as an excuse to employ another person to carry out his work at half the cost.

Mr Tracey maintains that the defendants' breach of contract and their actions has had a huge detrimental effect on his health, his professional career, his emotional and financial well-being and his lifestyle, with resulting effects on his family. He claims damages for psychological injuries sustained and claims that damages ought to be assessed in a manner which places him in the position in which he would have been had the contract been performed and, in this regard, he relies on settled authorities such as Robinson v. Harman (1848) [1848-1860] All E.R. 383.

The Course of the Proceedings

Proceedings were instituted by plenary summons on the 1 st December 2006. There are three iterations of the statement of claim. A statement of claim was delivered on the 20 th December 2006 in which Mr Tracey claimed €125,000 together with interest. On the 9 th June 2008 a second statement of claim was delivered in which a higher claim was advanced to take into account interest for two years delay in payment. On the 20 th April 2009, a third iteration of the statement of claim was delivered. This is the operative one in which Mr Tracey claims €148,000 together with interest. He also claims damages for injuries and financial losses. Significant sums are claimed based on Mr Tracey's pleading that he has not been able to return to his previous profession and has suffered past and ongoing losses calculated on an actuarial basis. The claim includes past losses, expectation losses and consequential future financial losses. Further claims arise in tort, particularly negligence and conversion. The amount claimed exceeds €3,000,000. The claims are denied.

An amended defence was delivered on the 16 June 2009 to answer the third and operative statement of claim. Mr Tracey served a notice of trial and sought to have his case set down for hearing by a judge and jury. The defendants brought an application to have it set aside, which Kearns P acceded to on the 24 th January 2011. Mr Tracey appealed to the Supreme Court. Judgment was delivered by MacMenamin J on the 25 th April 2016 affirming the order of the High Court. The Court determined that the plaintiff's causes of action did not attract a right to trial by judge and jury and his proceedings did not include a claim in defamation. Therefore, any claim in defamation is excluded.

A further notice of trial was served on the 3 rd October 2017. Case management and various interlocutory motions followed. The trial began in July 2019 on the basis that evidence on liability would be heard first. This course of action was taken for two reasons. First, Mr O'Connor was unwell. Second, Mr Tracey was not then in a position to proceed with quantum. He wished to obtain the report of a psychiatrist as the defendants had sought and obtained a report from Professor Corvin, a consultant psychiatrist, in April 2019. Before the commencement of the trial, Mr Tracey informed the court that he did not then have the report of a psychiatrist. Hearings took place in July, November and December 2019. The hearing was interrupted by Covid –19 and by the availability of the court due to other commitments. While Mr Tracey informed the court on a number of occasions that he was continuing to make efforts to obtain the report of the psychiatrist, ultimately it never materialised.

On the 11 th November 2021 and prior to the conclusion of Mr Tracey's case, the defendants brought a motion seeking to have the claim for nervous shock/psychiatric damage dismissed. The application was not acceded to. The court considered it to be premature as not all potentially relevant evidence touching on that issue had then been adduced. The court also made a ruling in relation to time management for the remainder of the trial. The case was then listed for resumption of hearing on the 27 th March 2023. Five days were set aside to complete the evidence. Shortly prior to the resumption of the case, the court was informed that its case management ruling had been appealed by Mr Tracey. In deference to the appeal process, the case was further adjourned. The Court of Appeal delivered its decision on the 2 nd May 2023, upholding this court's ruling on allocation of time and case management. Hearings then resumed in February and continued into March 2024. It was agreed at that time that all outstanding evidence, including evidence on quantum, would be heard. The parties made written submissions, the final and replying submissions being received on the 22 nd May 2024.

A further issue arises which should be referred to at this time. It concerns causation. Mr Tracey has instituted proceedings in respect of other alleged wrongs against a number of other parties, some of which involve claims for mental distress, shock and post-traumatic stress disorder. He is named as either the sole plaintiff or as co-plaintiff with his wife, Mrs Karen Tracey. The defendants have highlighted the nature and extent of the claims made in some of those proceedings and it is argued that claims have been duplicated, with consequent implications for causation. Mr Tracey maintains that those proceedings are unrelated and irrelevant to this claim.

The Agreement

(a) Introduction of Mr O'Connor and Mr Burton to Mr Tracey

Mr Burton and Mr O'Connor were keen to engage with a firm of engineers for the purposes of developing their business. In November 2003, they entered discussions with Mr Frank Quigley, an engineer, for the acquisition of his mechanical and electrical contracts business. This seemed to them to be an advantageous acquisition, given that their business had a focus on costs control. Mr Quigley was one of the principals of the consulting engineering business, F and P Quigley Limited, trading as Frank P Quigley, Consulting Engineers. He had worked on projects with Mr Burton and Mr O'Connor. Several projects were then being undertaken. They were each aware of what they could bring to a combined venture. Mr Quigley informed Mr O'Connor that he had been considering retirement and that his son was going abroad.

The defendants were seeking a person who it was thought might lead up this business. Initially, they were looking for an enthusiastic young engineer who would understand what they were trying to achieve. Mr Tracey's name as a potential candidate emerged. He was more experienced and was approached through a Mr Simon Fuller, a friend and acquaintance of Mr O'Connor.

It was against this background that an agreement was signed with effect from the 1 st March 2004. A newly formed company, Burton and O'Connor Limited, acquired F and P Quigley Limited, trading as Frank P Quigley, Consulting Engineers, for €100,000. The venture was described as a novel offering of quantity surveying informed engineering design work. On the 21 st June 2004 a business name was registered in the Register of Business Names. It emerged in evidence that the trade name, FPQ Consulting Engineers, was sold in 2009 for €5. This was at the time of the financial crash. The defendants maintain that as this entity is not a juristic person, it is not a proper party to the proceedings.

Mr Tracey's evidence is that in early 2004 he was head hunted by Mr Fuller with whom he had worked in Jacobs Engineering Limited. In October 2001, Mr Fuller had provided a reference/letter of commendation which was laudatory of Mr Tracey. Mr Fuller had no hesitation in recommending him for a position at the highest level in building services engineering. It is also evident from the above and from the contents of a much later letter signed by Mr Fuller on the 26 th October 2011, that Mr Tracey was very well regarded in his chosen field of engineering. It is also evident that Mr Tracey was sought out by the defendants. It was considered that he would be a great asset and that he would bring his considerable experience to the development of the business venture. Mr Tracey received a call from Mr O'Connor in January 2004, following which he met with Mr Burton and Mr O'Connor at their premises on Amiens Street.

(b) The Contract of Employment

Negotiations led to the execution on the 30 th January 2004 of what was described as a contract of employment. The agreement was typed on the headed notepaper of "Burton and O'Connor". There is a dispute as to whether, and the extent to which, Mr Tracey was involved in preparing this agreement. He denies that he had any such involvement. It is the court's view that this is not germane to the issues which the court must determine. It is clear that a contract was entered into and executed by the parties, regardless of who may have prepared it. No issue such as contra proferentem arises. An issue does arise, however, as to whether the contract of employment was terminated on the execution of a subsequent contract for services on the 24 th February 2004. Mr Tracey contends that the contract for services did not mention or terminate the contract of employment. I t is therefore necessary to consider their respective terms.

The parties to the contract of employment are described as " Mr Michael Burton and Mr Charles O'Connor of Frank Quigley, Consulting Engineers (Burton and O'Connor Ltd) (Employer) and Mr Kevin Tracey of Engineering Design and Management (Employee)". It was signed by " Mr Charles O'Connor, Burton and O'Connor Ltd (Employer), Mr Michael Burton, Burton and O'Connor Ltd (Employer) and Mr Kevin Tracey, Engineering Design and Management (Employee )".

The contract contains twenty-three clauses. Clause 1 concerns the " Name and Address of Employer" , stated to be "Mr Michael Burton and Charles O'Connor" , and under their names, "Frank P Quigley, Consulting Engineers (Mechanical and Electrical)". The place of work is described as " Frank P Quigley, Consulting Engineers (Mechanical and Electrical), 68 Amiens St, Dublin 1 " . The next clause is entitled " Job Title and Responsibilities " , which provides that Mr Tracey "will be the Head Consulting Engineer over the Mechanical and Electrical Department of Frank P Quigley, Consulting Engineer s " . It continues:

"Mr Kevin Tracey as the Head will be responsible for control of the Mechanical and Electrical Building Services Project Work and all personnel within the Mechanical and Electrical Department including personnel retained from F and P Quigley, Consulting Engineers. Mr Frank Quigley will be retained by the new company for 2 days per week over three years. Mr Paul Quigley will be leaving the new company in August 2004".

Clause 23 provides for "minimum notice". The period required for termination of the contract of employment, " regardless of any circumstances " by either the employer or the employee " will be 16 weeks ". Mr Tracey was to be paid a monthly salary of €12,000. The specified hours of work were from 9 am to 5:30 pm, Mondays to Thursday with one hour for lunch; and from 9 am to 2 pm on Fridays. The rate for overtime was €85 per hour, to be paid on a three-monthly basis at the time of payment of the fee invoice.

Following the execution of the contract of employment Mr Burton and Mr O'Connor spoke to their accountant, Mr Bernard McKeever. While there was no legal input, following general advice received, Mr Tracey was provided with a "C ontract for Services". This was again prepared on the headed paper of "Burton and O'Connor" and was signed by Mr Tracey, Mr Burton and Mr O'Connor on the 24 th February 2004.

The description of the parties in the " Contract For Services " is the same as those contained in the earlier " Contract of Employment ", except that the terms " Employer" and "Employee" are omitted. The contract of employment contained twenty-three clauses. The contract for services contained eleven clauses, including the following:

a. The contract is described as a " contract for services " made between Mr Michael Burton and Mr Charles O'Connor of Frank P Quigley, Consulting Engineers (Burton and O'Connor) and Mr Kevin Tracey of Engineering Design and Management, Building Services Consultancy.

b. Clause 3 provides that " Mr Kevin Tracey as a consulting engineer will provide a professional service to the mechanical and Electrical Department of Frank P Quigley, consulting engineers. Mr Kevin Tracey will advise on technical services for the mechanical and electrical building services project work within the Mechanical and Electrical Department of Frank P Quigley, Consulting Engineers " .

c. Clause 4 provides for payment to Mr Tracey of a standing charge of €2,000, plus VAT, in exchange for permission to place his name and professional qualifications, as an associate, on headed paper and company stationery. Payment was to be promptly made by cheque in response to invoices submitted by Mr Tracey.

d. Clause 6 deals with work hours and provides that "Mr Kevin Tracey is prepared to offer up to 35 (thirty-five) hours per week, if required, to provide professional services".

e. Clause 7 provides that " an hourly rate Eur €75 (seventy-five) plus VAT will be charged for professional services. For hours worked in excess of 35 (thirty-five) hours per week an hourly rate of Eur. 119 (one hundred and nineteen) plus VAT will be charged. Payment will be made promptly by cheque in respect of invoices submitted by Mr Kevin Tracey".

f. Clause 10 is as follows: " A directorship of Frank P Quigley, consulting engineers (Burton and O'Connor Ltd) will be offered to Mr Kevin Tracey after 12 months on 1 March 2005. It is anticipated that Mr Kevin Tracey will be offered the opportunity to purchase 1/3 (one third) interest in the company and following agreement of salary and similar benefits stated above will also be entitled to 1/3 (one third) interest in the company and following agreement of salary and similar benefits stated above will also be entitled to 1/3 (one third) of future profits ".

g. A notice period is provided at clause 11 as follows: " The agreed minimum notice required for termination of this contract for services regardless of any circumstances by either party will be 16 weeks ".

Emphasis is placed by the defendants on the words " regardless of any circumstances ". In exchanges prior to the formal opening of the case, Mr Tracey said that a senior position was not obtainable overnight. It would take a number of weeks to acquire new contracts and referred to it as " the reasonable " 16 weeks.

(d) The Side Letters of the 24 th and 27 th February 2004

On the 24 th February 2004, a letter was signed by Mr Burton and Mr O'Connor on behalf of the company and addressed to the plaintiff. While not signed by Mr Tracey, the incorporation of this letter into the agreed arrangements is not disputed. Provision was made, inter alia , for benefits in relation to holidays, car parking, percentage of profit, personal meetings and professional committee involvement, as follows:

" (b) Percentage of Profit

We agree to pay you 1/3 (one third) of profits gained by Frank P Quigley, Consulting Engineers (Burton and O'Connor Ltd) up to 01 March 2005. This percentage of profit will be reviewed at the time of the offer of Directorship on 01 March 2005.

(f) Personal Meetings

We understand and agree that over the initial months there may be a requirement for you to attend some personal meetings.

(g) Professional committee involvement

We understand and agree that your professional committee involvement will continue for the benefit of company business. Time will be paid for professional committee involvement during the working week. "

On the 27 th February 2004, Mr Burton and Mr O'Connor addressed the "overtime" letter to Mr Tracey. It was also not signed by him. The letter stated as follows:

" Dear Kevin,

Further to our meeting last Tuesday and the signing of our agreement I thought it prudent to record our discussion and qualification regarding the payment and charging of overtime as follows: -

Overtime

While our agreement includes a rate to compensate you for the working of overtime, any overtime worked must have the prior approval of both Michael Burton and Charles O'Connor before payment will be made. This procedure must be applied in order to control our overheads. "

Dispute as to the Agreement

Mr Tracey maintains that the contract of employment was not expressly terminated by the contract for services and that the overtime letter did not form part of the agreement. He also contends that the expression "if required" must be viewed in the context of him always working thirty-five hours per week, together with a considerable amount of necessary overtime, of which the defendants were aware. He could not recall when he received the overtime letter. Nevertheless, he stated that he advised the defendants at the start of the week that he would have to work overtime to get through the workload. This was a practice which had built up, rather than a written requirement of the contract. It was part of a verbal agreement that he did tell them in advance. He commenced working overtime almost immediately on taking up his position.

It is the defence's contention that the side letters acted as qualifications to the contract. First, it was thought best to incorporate a list of benefits that had been brought to their attention. Second, overtime had to be approved in advance to control it. Mr O'Connor's evidence was that as the clause in the contract for services expressly stated, " up to 35 hours per week " and that if the defendants required Mr Tracey's services for that period, they had to pay him that amount. He understood that the contract was for a period of one year after which Mr Tracey would be given the opportunity to purchase shares in the company. A directorship would also be offered to him as would one third of the profits of the company. A profit was never realised. He accepted that Mr Tracey worked just the 35 hours per week.

I should also state that Mr Tracey maintains that he was brought into the negotiations to purchase the business from Mr Frank Quigley and to set up FPQ Consulting Engineers. Mr Burton's evidence is that Mr Tracey was not involved and played no part in the acquisition of FPQ. There is little evidence to support Mr Tracey's contention. From a temporal perspective, it is difficult to see how this could be so as the acquisition was affected on the same day that Mr Tracey commenced work. I am satisfied, however, that Mr Tracey was involved in the naming of the new tradename, FPQ, which was achieved in June 2004, some 3 to 4 months after the new business venture had commenced operations.

Temporary Reduction of Fees and Mr Tracey's Suggested Role in the Growth of the New Venture

In March 2004, Mr Tracey was requested by Mr Burton to reduce his fees. Mr Tracey contends that he was told that the company was experiencing cashflow problems. He had never experienced a request like this before. He obliged on the understanding that he would be paid later. While he reduced the number of hours per invoice, these were not the hours he actually worked. On the other hand, Mr Burton explained that while the new entity was performing well, as a matter of fiscal prudence and to signify to their bank their efforts at cost control, Mr Tracey was requested to take a reduction of approximately 50% for the months of May, June and July 2004, with the balance to be paid later. It was a young company wishing to ensure the confidence of its lending bank and to demonstrate cash flow control. It emerged from Mr Tracey's cross examination of Mr Burton, that no other member of staff was approached in like manner.

Much court time was devoted to Mr Tracey's role in the new business venture and in particular, whether, and to what extent, he was required to engage in its expansion. Mr O'Connor and Mr Burton gave evidence that they had expectations that Mr Tracey would develop the business and help it grow. Mr Tracey disputes that he had any contractual obligation to market the business.

Mr O'Connor and Mr Burton gave evidence of the preparation of financial projections for the new venture. These were important in helping to secure bank funding. Mr Burton's evidence is that the financial projections were also germane to the financial package provided to Mr Tracey. They had initially hoped to retain an engineer on a financial package of up to €70,000 per annum but anticipated that by retaining a more experienced person, such as Mr Tracey, growth would follow. Mr O'Connor gave evidence of discussions which they had with Mr Tracey about his very strong client list, how he could obtain new work for the business and how they had understood that in the first year Mr Tracey would bring in €80,000 in cashflow. His evidence is that Mr Tracey was shown a three-year cash projection plan, which included a projection of fee income generation by him of €80,000 in the first year, something which Mr Tracey did not have a difficulty with. While Mr Burton substantially agreed with the evidence given by Mr O'Connor, he believed that Mr O'Connor was mistaken in his evidence that the cash flow projection was shown to Mr Tracey before he entered into the contract with the company. Mr O'Connor's evidence is that Mr Tracey stated his belief that one job would generate that amount, without pressure. Mr O'Connor's impression was that Mr Tracey would obtain an enormous amount of work and there were discussions about the installation of a prefabricated building for additional engineers.

Mr Burton's evidence, however, is that Mr Tracey did not appear to be aware of, or to be sufficiently alive to the task, that he appeared to focus more on office systems/methods and tendering in respect of existing projects. The evidence of both is that they had received promises from Mr Tracey who was confident that work would come. Mr Tracey advised them that getting work was not a problem, getting all the work done was. Mr O'Connor said that the work never came and that that was worrying, that bank funding included projected sums for Mr Tracey's salary and that obtaining new business by Mr Tracey was always part of the discussion. He also gave evidence that when at directors' meetings they inquired about what work was coming in, Mr Tracey reassured them. The defendants' evidence is that there never was any indication of anything in the pipeline. They had concerns and worries about cashflow. On one occasion, when there was talk of expansion, they saw their accountant. They were concerned about cash flow and how an additional senior engineer and mechanical and electrical engineer might be paid and were anxious to have a named project; and to know of the potential size and the potential fee associated with it. This was not forthcoming. They stated in evidence that they became anxious that they could not keep operating on the promise of bums on seats or a long client list. Mr O'Connor's evidence is that Mr Tracey was secretive in not informing them of future work and that as months went on, they became more and more concerned about the lack of promised contribution. It did not look as though the €80,000 in fees would materialise and whenever Mr Tracey was approached about this, he informed them that it would come right and that he had to get the office set up first and that he would introduce clients when he thought the office was properly set up. Mr Burton felt that he had no control, that he had no knowledge of correspondence which was going out on projects and that Mr Tracey had kept his cabinet closed. He found it frustrating that after buying the practice to achieve cost controls he was in a similar position to that which existed before, as if he did not own the practice. He was unable to get involved in its nuts and bolts.

Mr O'Connor described the different approaches that each had to working conditions, his frustration in getting involved in the running of the Mechanical and Electrical Department and that a level of anticipated cooperation did not materialise. He described Mr Tracey as becoming quite private. The quantity surveying department was upstairs, and the mechanical and electrical services in the basement. Mr Burton and Mr O'Connor's office was on the top floor of the building. Mr Tracey's was in the basement adjacent to the back door. There were different philosophies between upstairs and downstairs. Upstairs had an open-door type of policy and would meet for coffee. A good relationship existed. When Mr Tracey arrived, he wanted a more private office and a room which had been used as an archive was made available to him. According to Mr O'Connor, it became like Mr Tracey's castle with the door closed. Mr Tracey was reluctant to join them for coffee and complained about gatherings outside his office.

When Mr O'Connor gave evidence, he was being treated for his illness and he accepted that his memory had disimproved. Nevertheless, in relation to expectations, anticipations, frustrations and disappointment about the lack of new business, his evidence largely coincides with that of Mr Burton, save to the extent that the latter disagrees that Mr Tracey was actually shown cash flow projections and that there was a formal discussion about a specific sum of €80,000 being mentioned prior to the contract being concluded.

Mr Burton also had a concern about cash flow. To him, it became noticeable that Mr Tracey did not state the names and values of possible new jobs or of fees. The company was a young company. They wished to ensure bank confidence and that cash flow would be controlled. That is why they made a request to Mr Tracey to reduce his monthly take by €5,000 for two or three months, to be repaid later. The anticipated €80,000 never materialised and no explanation was forthcoming and the only indication he received about new work related to a medical facility in the west of the country. Nothing ever came of it.

Mr Tracey disputed that any such conversation about client lists took place, because it was very clear that he was not going in as a marketing manager. No such obligation arose under the contract. He worked hard in the development of the new business, evidenced by the number of hours that he was giving to the business.

Both Mr Burton and Mr O'Connor accepted and agreed that Mr Tracey was professionally competent and well qualified and experienced. Mr O'Connor agreed that Mr Tracey performed his work in a diligent and proper manner.

The Events prior to the 4th October 2004

(a) The BS News article

An article appeared in the September 2004 edition of BS News ; a journal circulated within the building services industry. Mr Burton, Mr O'Connor and Mr Tracey appeared in a photograph which accompanied the article. A very positive impression of the services provided by FPQ Consulting Engineers and of Mr Tracey's role was portrayed. To Mr Tracey, the impression given to the outside world was that this was a leading mechanical, electrical and quantity surveying company, that all was well and that the company was prosperous. He rejected the contention that he alone wrote the article. He maintains that the article was jointly written, and that the accompanying photograph was taken in September of that year. The significance of this, from Mr Tracey's perspective, is that this article was published approximately two weeks prior to the termination of the contract and supports his view that his performance within the company was never an issue up to that time.

The defendants contend that the article was Mr Tracey's idea. They had never advertised prior to this. They went along with it although they thought it might be premature. The photograph was taken in early August and while it had been understood that the article would appear in the August edition, it did not appear until the September issue due to a printer issue. Under cross examination, Mr Burton did not accept Mr Tracey's assertion that on the 9 th August 2004, he and Mr O'Connor requested Mr Tracey to promote the business in an industry magazine. Mr Burton denied that the defendants had made the request.

(b) The Court Case

Prior to Mr Tracey taking annual leave, he contacted Mr Burton and Mr O'Connor, and they subsequently met. Mr Tracey believes that this meeting took place on the day before he went on holidays. He told them of an impending court case which was due to be heard on the 16 th September 2004. He also said that he was a defendant in a minor assault prosecution, and that it could be in the newspapers.

The defendants' position is that the way they were informed of the court case was of greater concern than the fact of the case itself. Mr O'Connor's evidence is that Mr Tracey telephoned and said he wanted to see them in private in Fairview Park and that he could not talk in the office because it was confidential. Mr Burton rejected the suggestion that he was telling an untruth when saying that Mr Tracey had asked for a meeting in Fairview Park. Mr Tracey nevertheless agreed to meet in the office and when he came in, he closed the door. Mr O'Connor's evidence is that Mr Tracey asked them to come to the window. According to Mr O'Connor, Mr Tracey whispered that he was in court the following day, that he was being framed and " got at " and that he was going to prove himself innocent. He said that he would not be in work the following day and that he was informing them so that they knew about it. Mr O'Connor's evidence is that this conversation made him feel uneasy. This was not because of the case, rather the circumstances in which they were informed. Mr Burton also confirmed that the meeting took place in the office upstairs and that Mr Tracey brought them to the window, hunkered down and began whispering. The conversation concerned an assault charge. Mr Burton described the experience as strange.

The Decision to Terminate the Agreement

Mr Tracey was not at work on the day the case was heard, the 16 th September 2004, nor on the following day when reports of the proceedings appeared in a number of national newspapers. These reports are the subject of legal proceedings brought by Mr Tracey. Mr Tracey had taken annual holidays and was not due to return to work until the 4 th October 2004 when he was handed a notice of termination.

Mr Burton did not accept that notice was given because of the publication in the newspaper. His evidence is that when the article appeared in the paper, they did not think much of it. The defendants believed what Mr Tracey had told them and the case had nothing to do with their decision to terminate the agreement, which was a business, not a personal one. They thought it was right to tell Mr Tracey on his return from his holidays and not leave it until the following February. He and Mr O'Connor had discussed matters over the previous months. Things were not working out as well as they had hoped. Mr Burton had been away during the first week of Mr Tracey's holidays and when he returned Mr O'Connor and he spoke. They had given further thought to their concerns about finances, about being able to afford Mr Tracey's fees and the absence of information concerning client lists. He said that they came to the conclusion that Mr Tracey was not the man for the job. A decision was made to terminate the arrangement, and they decided to communicate the decision to Mr Tracey on his return to the office. The decision was made when Mr Tracey was away on holidays, according to Mr Burton.

Mr O'Connor's evidence is that Mr Tracey was on a probationary period and that he and Mr Burton had been continuously reviewing the situation. They felt that the arrangement with Mr Tracey had not worked out and that it was in everyone's interests to terminate the arrangement. As far as they were concerned, it was a measured and well-reasoned decision, taken over a period and not overnight. Although they were not engineers and Mr Tracey was the sole leader of FPQ, the arrangement was not working out and the company was not progressing in the right direction. Because Mr Tracey was the sole leader of FPQ it was a difficult decision to make but that they had no other option. He likened it to taking off your right arm. That they were willing to take that decision, in his view, showed how serious they were. It was necessary for the future development of the company. They decided not to give Mr Tracey a reason for doing so. They believed that over the following six weeks they would have the opportunity to recruit someone to replace Mr Tracey. Mr O'Connor also said that in the meantime they asked Frank Quigley to come back and help them to manage the business. He confirmed that he was willing to help if required. It is to be recalled that under a term of the original acquisition agreement, Mr Quigley agreed to work a certain number of hours a week.

Mr Burton's evidence is that while he had no issue with the quality of Mr Tracey's work, issues revolved around new business and office culture. As far as he was concerned, they had been seeing how things were developing with Mr Tracey. It was not working out as well as they had hoped. While Mr O'Connor had remained optimistic, as the months went on and their expectations were not being realised, they became anxious. He also said that it was a business, not a personal, decision. He thought it right to take the decision in October, rather than to wait until the following February. They had discussed it over a period of three months. Mr Burton was away on a week's holiday. When he returned from holidays they spoke again. They considered the pros and cons and determined that terminating the contract was in everyone's best interest and that the business would develop better. He did not accept that the reporting in the paper was a reason for their decision.

Events of the 4 th October 2004

On the 4 th October 2004, Mr Burton and Mr O'Connor approached Mr Tracey. They had a brief discussion with him and then handed him the notice of termination. The defendants maintain that the meeting occurred in Mr Tracey's office and that they closed the door behind them. Mr O'Connor described Mr Tracey's reaction as being very shocked. Mr Tracey asked for some time off to gather his thoughts.

The letter which was handed to Mr Tracey was typed on FPQ notepaper. It was in the following terms:

"Following our meeting with you this morning we wish to confirm that we are terminating your contract of service with effect from 4 October 2004. We would like to take this opportunity to thank you for all your help to date and wish you the best of luck in the future."

It was signed by Mr O'Connor and Mr Burton above the title "FPQ Consulting Engineers".

Mr Tracey's evidence is that he had chosen two engineers, whom he knew from the Dublin Institute of Technology in his capacity as a college examiner, to work with him in the office. Without what he described as "any tact", he was given notice in the presence of these engineers. This is disputed by the defendants who maintain that only Mr Burton, Mr O'Connor and Mr Tracey were in the office at the time . Neither of the two engineers gave evidence.

Mr O'Connor said that, in response to Mr Tracey's request for a reason for their decision, they had " basically quoted the contract " - that they were not obliged to give a reason. His belief was that Mr Tracey thought that they had been " got at " as part of a conspiracy against him and that it was his court cases which were responsible.

Mr Burton's evidence is that they informed Mr Tracey that the decision was reached because it was felt that the arrangement was not working out. The discussion took place in the morning. Mr O'Connor and he went to Mr Tracey's office, closed the office door, and said that they wanted a chat about the agreement, and that they did not wish to proceed with it. Only the three of them were present. He said that Mr Tracey replied, "shall I go now?". Mr O'Connor responded that they thought he would like to stay for four months and continue to assist. When asked by Mr Tracey whether it was the court case which had caused this, they replied that it was not; that at the time they had decided that he was not the man for the position as they had hoped. They were happy for him to stay on as they had no one to replace him, and they thought he might wish to stay also. Mr Tracey said he wanted to consider matters and left the office. Mr Burton was not sure what time Mr Tracey left. His evidence was that the letter was given to Mr Tracey later in the afternoon, rather than in the morning as Mr O'Connor had stated. Mr Burton denied that the notice was given in the presence of two engineers and said that what was done was unpleasant. It was not done in front of the staff.

Mr Tracey's evidence is that he became aware that the defendants had interviewed an engineer in his absence. He believed that it was intended that this person would replace him at a lower cost. He had interviewed an engineer some weeks earlier and that engineer's CV was on his desk when he left on holidays.

Mr Tracey put it to Mr O'Connor that on the 4 th September 2004, Mr O'Dowd had been interviewed by Mr Tracey and Mr Burton, following which a letter was written making him an offer. A salary was specified, as was a six-month probationary period. Provision was made for one months' notice. If the offer was accepted, Mr O'Dowd would commence employment on Monday, the 4 th October 2004. The letter of offer had been signed by Mr Tracey. Mr O'Connor had no recollection of that letter. It was also suggested to Mr O'Connor that while Mr Tracey was on vacation, an engineer was brought in and was " offered... my position " . This engineer did not give evidence. Mr O'Connor said that after Mr Tracey was gone, Mr Quigley agreed to work four and a half days and a fifth day when required. Mr Quigley's son also agreed to work for about six months. Mr O'Connor also accepted that they eventually employed a Mr Harrison, adding that they had been without a lead engineer for a few months.

Mr Burton also explained under cross examination that Mr Harrison had replaced Mr Tracey in February 2005. His recollection is that Mr O'Connor and he spoke to Mr Harrison in October or November. While Mr Tracey put it to Mr Burton that Mr Harrison had commenced working with them at an earlier stage, this was denied by Mr Burton and no contrary evidence was called. While Mr Harrison was employed on a salary of €70,000, half Mr Tracey's remuneration package, Mr Burton denied that they were experiencing financial difficulty. He added that Mr Harrison worked with the defendants until November 2007 when he was replaced by Mr Sean Ward, who was initially employed in a salary of €50,000. He bought the goodwill of the company at around the time of the financial crash.

It also emerged in cross-examination that Mr Burton had first met Mr Harrison through Mr Tracey on the 19 th August 2004, when he had been interviewed by Mr Tracey and Mr Burton. Two engineers were interviewed on that day. Mr Harrison had been approached in response to Mr Tracey's request for an additional engineer. Mr Burton said that they went along with this at the time. Mr Tracey points to this as illustrating that the workload was such that he required assistance. However, Mr Burton said that this was based on what they were informed by Mr Tracey.

It is also to be noted that two junior engineers, Mr Kieran Kelly and Mr Eamonn Burkett, were employed. Mr Burton thought they were not fully qualified and were completing their studies. Mr Tracey disputed Mr Burton's understanding of their qualifications.

Mr Tracey also raised with Mr Burton an issue arising from a submission prepared for an FPQ project, concerning management structure. Mr Tracey questioned Mr Burton about the structure as outlined in that submission. Mr Burton replied that the document was put together by Mr Tracey, although it might have been typed by the company secretary. It was Mr Tracey's document as far as he was concerned.

The 4 th to 19 th October 2004

It is evident that Mr Tracey was upset and felt slighted by the circumstances of what, for him, was an unexpected termination of the contract. On the following day, the 5 th October 2004, Mr Tracey returned to the office. There was a brief meeting. He reiterated his belief that the reason for the decision was his court case and Mr Tracey insisted that Mr O'Connor and Mr Burton were " got at ". They denied this.

Mr Burton gave evidence that on Tuesday, the 5 th October, Mr Tracey came into the office at 9am and left at 10:30am, but did not inform the office of his movements. He returned at 2pm and left again at 3:45pm. Mr Tracey repeated that he knew that he was being let go because of the court cases. Mr Burton's response was that the defendants wished to activate the "get out" clause, and that it was open to either party to so do. Mr Burton repeated that the defendants did not have to provide Mr Tracey with a reason for termination, and spoke of the tense relationship that existed in the days following. His evidence was that Mr Tracey informed them that because of what they had done, they would not work again and would be run out of the industry. Mr Tracey disputes this.

Mr O'Connor also gave evidence of the breakdown in the relationship. He described Mr Tracey's attendance as becoming very erratic. He and Mr Burton began to question whether they were benefitting from continuing with the situation. On certain days, Mr Tracey just left the office. Of further concern to him was that Mr Burton and he were spending a lot more time on the " goings-on " at FPQ, which was stressful.

On the 12 th October 2004, Mr Tracey, Mr O'Connor and Mr Burton had what Mr Burton described as an unpleasant meeting. For the defendants, the purpose of the meeting was to express their concerns that Mr Tracey had not been in the office "much" the previous week, and that no one knew where he was. Mr Burton requested him to inform Ms Caitriona Lyons, the office manager, of his absences. Ms Lyons was responsible for looking after documents, accounts and expenses. She had provided those services to Mr O'Connor and Mr Burton since 1994. She also provided similar services to new company Burton and O'Connor Ltd, trading as FPQ Engineers between 2004 and 2008. She would in turn inform Mr Burton and Mr O'Connor. Mr Burton states that he was informed by Mr Tracey that the contract did not require him to inform Ms Lyons regarding his absences. The defendants were apprehensive of how they could continue working " like this " for the remainder of the notice period. Emails were exchanged and, on Friday, the 15 th October 2004, Mr Tracey sent a note outlining his claim for overtime and holiday expenses. Mr Burton was surprised because overtime had not been sanctioned by the directors.

Mr Tracey maintains that correspondence and phone calls were blocked from him, that he was denied access to emails and that records of his entry and exit to and from the office were kept in a record book. Mr Burton did not accept, however, that there existed a policy that correspondence and telephone calls would be kept from Mr Tracey. Letters were written by Mr Tracey on the 13 th October 2004, complaining that since the 4 th October 2004, FPQ correspondence was not being passed to him and that as of the 13 th October, emails were not received by him. He wrote on the 14 th October informing Mr O'Connor and Mr Burton that he would be at his site meeting at 3pm on that day, and that he would be on leave on Friday, the 15 th October 2004. On the same day (the 14 th October) he also wrote a letter that holidays were due in accordance with the contract for services. By letter dated the 18 th October 2004, Mr Tracey called upon Mr O'Connor and Mr Burton to provide him with a reason, in writing, for the termination of his contract for services. He requested a reply by close of business " today ".

It is evident that the atmosphere between the parties became more tense after the 4 th October 2004 and that there was further deterioration in their relationship thereafter. Then came the disappearance and reappearance of an FPQ logbook or diary when tensions were further increased. Two diaries/logbooks were kept, a blue one and a red one. The blue one was for Burton and O'Connor. The FPQ diary was red in colour and of A4 size.

Mr Tracey's evidence is that this book had been set up by him for health and safety reasons - for the logging of times when engineers were out of the office and for booking the conference room. It was kept at Ms Lyons' desk, who explained that if personnel were out of the office for any reason, they would insert a note in the diary so that she, as office manager, could answer enquiries from partners as to their whereabouts.

On the 15 th October 2004, Mr Burton went to check the diary. It was missing. Ms Lyons had not seen it for several days. Enquiries were made from other people in the office. No one knew where it was. Mr Burton was suspicious that Mr Tracey had removed it but decided not to say anything to him. On the 19 th October 2004 Ms Lyons commenced work at 8am. On the way downstairs to the basement kitchen to make a cup of tea, she noticed the diary on top of a filing cabinet located to the left of the stairwell. She thought that by that time it had then been missing for approximately one week and she brought it up to Mr Burton. He telephoned Mr O'Connor advising him that it had been located. They checked the diary. It had been stamped on each page with an FPQ stamp, " APPROVED 12/10/04 ". Ms Lyons' evidence is that she was not responsible for these entries. Mr Burton and Mr O'Connor did not stamp the book, on their accounts.

At 9:30am Mr Tracey asked Ms Lyons for the sign out book. She understood this to be a reference to the FPQ diary. She then noted that the words "sign out book" had been entered on the inside page of the diary. It was her evidence that the words were in Mr Tracey's handwriting. She said that she did not stamp the diary. When she informed Mr Tracey that the diary had been missing for a week, he replied " that's strange isn't it ". She could not recall the last day on which she saw the diary but thought that it had been missing for about a week. She was questioned by Mr Tracey in relation to steps she had taken to locate the diary between the 12 th and 19 th October and about persons with whom she had not consulted. Ms Lyons accepted that she had not inquired of Mr Tracey as to its whereabouts. She was satisfied, however, that the diary had been missing for at least a week at that stage but could not say that it went missing on the 12 th October or, for that matter, that this was the last day which it had been in her possession. Mr Tracey pointed out that there were no entries concerning conference room bookings. Also, Ms Lyons confirmed that there were no entries after the 19 th October 2004, even though the same persons continued to work with FPQ. Mr O'Connor described as " really strange " that the office diary went missing and for him this was another example of a very strange occurrence in the office.

An entry to which the court's attention was drawn was made for the day of the 12 th October 2004:

"Big issue made by Charlie O'Connor re KT timekeeping of last week. All timekeeping by KT fully explained by KT on each day."

Mr Tracey said in evidence that the disappearance of the diary was only being raised with him at hearing, some fifteen years later.

The Events of the 19 th October 2004

Following this tense period, Mr O'Connor and Mr Burton decided to terminate their business relationship with Mr Tracey. For them, the events of the previous two weeks could not continue, and they were going to have to ask Mr Tracey not to work out his period of notice and to request him to leave . The decision was taken early that morning. From Mr Tracey's perspective this was a serious turn of events. At approximately 2pm, without any reason, he was given one hour's notice to leave the building. This, and the subsequent calling of Gardai, caused him great embarrassment and humiliation. His wife, Mrs Karen Tracey, came to the office following his telephone call to her. Mr Tracey contends that the 16-week notice period of the 4 th October 2004 was broken, thus resulting in a breach of contract. He maintains that, as a consequence of the defendants' actions, enormous damage has been done to him in his personal and professional life. Up to this time he was respected as a skilled and confident chartered engineer, and it is his contention that his right to earn a livelihood in his chosen profession was robbed from him.

There is a dispute as to what time Gardai arrived and who witnessed the events prior to Mr and Mrs Tracey leaving after 9pm. There is also a dispute as to whether papers and files were destroyed, whether computer access was interfered with and, if so, by whom. Mr Tracey also points to the defendants sought to make a claim for damage. He also claims that his intellectual property was wrongly retained. This claim is considered later in this judgment.

The evidence of witnesses who were present on the 19 th October 2004 on their recollection of events is now addressed.

(a) Mr Tracey's Evidence

Mr Tracey states that an employee informed him that one of the directors was going to see him after lunch. He inferred that employees knew that " they were coming to chuck me out ". Mr Burton came down to his office and gave him one hour to leave. He was handed a letter typed on FPQ headed paper and signed by Mr O'Connor and Mr Burton. A handwritten sentence recorded that "this letter was handed to Mr Kevin Tracey at 2pm on 19 October 2004". The letter reads as follows:

"...we have taken the decision to end our business relationship with you and EDM from 9 am this morning. Please clear your office within the next hour and leave your keys, remote control for the gate, mobile phone and any other items belonging to FPQ. If you feel you have any outstanding fees owed, please forward them at your earliest convenience. Thank you for all your help in the past."

Mr Tracey's evidence is that he told them that he would require more than one hour as his office was full of his own equipment, files and personal belongings. He contends that he did not refuse to leave but that it was not feasible for him to leave within that short time. His further evidence is that Mr Burton and Mr O'Connor went to their solicitor, who advised them to come back with gardai. They returned sometime between 5:30pm to 5:45pm with two gardai, who informed Mr Tracey that they were there to escort him from the building. He told them that he needed time. Mr Tracey phoned his wife, Karen Tracey, who worked nearby. She came to the office. When she arrived, locksmiths were changing the locks on the front and back doors. He could not recall if he called his wife before or after the gardai arrived but said that she was present when the gardai were there. While he was not manhandled, his personal phone was taken from him as the gardai understood that it was a company phone. The phone was eventually returned before he left. For Mr Tracey, calling the Gardai in such circumstances was outrageous. No criminal accusations were being made, but the presence of the gardai, in the eyes of his students for whom he was an external examiner and in the eyes of the staff, suggested that he had acted in a criminal fashion. Mr Tracey contends that the use of gardai in civil matters is not acceptable. At 5:49 pm, Mr Tracey addressed an email to Mr Burton and Mr O'Connor, in which he expressed his surprise about the "...threat of calling gardai this afternoon to remove me from the premised (sic) and now the presence of a carpenter to change the front and back door locks. This behaviour is totally unacceptable" . Mr Tracey's evidence is that the gardai were present from approximately 5:30pm/6pm until 9:15pm. It felt like he was being turfed out onto the street in the presence of his wife and the DIT graduates and he believes that the defendants used sledgehammer tactics.

Before leaving, Mr Tracey typed a letter timed at 9:15pm, addressed to Mr O'Connor and Mr Burton as directors of FPQ Consulting. It was headed " Continued misbehaviour and serious breach of contract ". It was also stated that the letter was " handed to Charles O'Connor at 9:15 pm in the presence of the gardai and my wife " and it read as follows:

"Please note that overtime has been worked from 5:30 PM to 9:15 PM witnessed by Garda Gareth Kane (179C) and Rachel Duignan (270C) of Store Street and my good wife. The said gardai were called by you to illegally evict me from my office.

Please also note that during the clear out of my office on your false instruction Garda Duignan demanded by personal telephone of me. This is unacceptable.

We also note your failure to return my personal property.

You will be hearing from us in the not-too-distant future."

In cross examination, Mr Tracey said that he was not told in advance that if he did not leave the premises that the gardai would be contacted. He said that, when he was informed that he had to leave, he explained that he could not go in one hour, that he needed time to collect his belongings and to deal with other issues in the office. He refuted any suggestion that he wanted to stay behind to destroy property. Between 5:15pm and 5:30pm Mr O'Connor and Mr Burton had arrived back at the office with gardai and locksmiths to change all the locks in front of the staff, including the two engineers. He also rejected the suggestion put to him that the gardai arrived nearer to 7pm than 5:30pm. He also denied telling the defendants that he would be back the following morning with his solicitor. His evidence is that he did agree to leave, that there was no confrontation and that he told them that he would leave when he gathered up his equipment and dealt with issues in the office. He wrote the emails on another computer because his own computer had been blocked off. He called his wife who assisted him in carrying his personal belongings to the car. Mr Tracey requested payment when leaving. He then wrote a letter seeking payment of salary for May, June, July and August and in respect of " approved overtime left with you before my holidays ". He also addressed his concern regarding a deduction of a subscription payment. He vehemently denied that he tore up any documents. That trays may have been empty were the result of him sorting his own personal data away from company data, and his filing cabinet was empty because Mr O'Connor had taken files from it, and he had taken his personal equipment away. The same applied to certain shelves, which were seen in photographs to be empty. Mr Tracey also denied that he had "blocked" the computer; he did not do so and would not have known how to do so. Further, when questioned as to whether the letter he had written on the 19 th October 2004, in which complaint was made about not receiving FPQ correspondence, was evidence of an intention not to leave, he denied this and stated that it was written by him that morning before he became aware that he would be requested to leave.

When questioned by the court as to why it took seven hours to clear things from his office, he replied that as a dedicated and conscientious worker, he had a client in the morning. Time was then taken up developing schematics or layouts. That concluded at 1pm. That person was with him when he received the phone call, during lunchtime, when he had gone out for a sandwich. In order to get the projects out, in the interests of the company, he spent a lot of time in the afternoon imparting the information to his engineers to execute the work because it impinged on the completion of contracts. Further, he had to separate his belongings from the company belongings. Most of his equipment was in the office" and he waited for his wife to come to give him a hand to lift his equipment. He also said that Mr O'Connor and Mr Burton were frequently coming back and forth during this period.

(b) Mrs Tracey's Evidence

Mrs Tracey states that when she arrived at the office at 5:45pm a garda was present in the basement corridor and another in her husband's office. Two junior engineers were in an office adjacent to her husband's office. One of them came down to ask Mr Tracey " a few questions " while she was present. She could also see Mr Burkett in the corridor. She did not accept that they were just saying goodbye. It was put to her that she was mistaken as to the time of arrival of Gardai, and that the gardai would not attend earlier despite requests from the defendants as they were of the opinion that it was a domestic matter. It was put to her that the gardai only arrived after 7pm, as Mr O Connor had phoned them again at 6:50pm. She responded that the gardai were present upon her arrival and until her departure. Mrs Tracey also said that when she arrived locksmiths were also present. She found the situation to be intimidating, embarrassing and humiliating. She saw members of staff at a window of the building when they were leaving after 9:15 pm. She did not see Mr Alan O'Connor on the premises.

Mr Charles O'Connor stated that what had occurred between the 4 th and 19 th October showed Mr Burton and he that matters could not continue. On the 19 th October 2004, it was decided to issue a letter to Mr Tracey telling him to clear his office and to leave the company. They tried to be very quiet about it. They asked staff to leave for a couple of hours. They went down to Mr Tracey's office and gave him the letter. Only Mr Burton, Mr Tracey and he were in the basement at this time. When questioned as to why he requested other staff members to leave, he replied that it was because they were fearful of what would happen. When they gave him the letter, Mr O'Connor said that Mr Tracey became threatening and aggressive towards them. They felt intimidated by what he said. Mr Tracey told them that they were going to regret the action they were taking because he was " the kingpin " (Mr Tracey denies ever having used this term) and that the days of FPQ were limited. Mr Tracey told them that they did not have the right to ask him to leave and that he was going to come back in the morning with his solicitor to prove them wrong. They replied that they did not want any trouble and that it would be best for all if he left. Mr Tracey said he was going nowhere, that this was his office and that he had the right to stay. At that point, Mr O'Connor and Mr Burton withdrew upstairs. They were worried and outside their comfort zone. Not knowing what to do, and wishing to follow correct procedures, they decided to go to their solicitor to seek his opinion. The advice they received was that they should go to the gardai. When they returned to the office, they informed Mr Tracey that the gardai were coming. Mr Tracey replied that he was perfectly within his rights, that he was entitled to stay for as long as he liked and to come back in the morning. They informed Mr Tracey that they were going to get the locks changed. Mr Burton and he remained upstairs. Mr Tracey was in his room. At some stage they were informed that Mrs Tracey was in the office with her husband. At approximately 5:30 pm, Mr O'Connor telephoned the garda station and gardai agreed to come to the office. The gardai advised them to stay in the conference room and not to have contact with Mr Tracey. Gardai arrived subsequently. Mr Tracey did not leave until 9:30pm. For Mr O'Connor this was a most difficult time. No one knew what was going on. They had the locks changed as they wished to secure the office to ensure that Mr Tracey would not come in the next morning. He agreed that Mr Tracey did not obstruct the locksmiths. After Mr Tracey had left, they went down to the basement and saw torn files and documents, including time stamped documents and tender documents. A photocopier CD was damaged. The tender documents were subsequently replaced with difficulty. Photographs of what they observed in the basement were taken which were introduced in evidence. Mr Tracey disputes Mr O'Connor's evidence.

(d) Mr Burton's Evidence

Mr Burton stated that he felt it necessary to record the events of the 4 th and 5 th October in the FPQ diary before the diary disappeared. On the 15 th October, he discovered that it was missing. The entry on the 12 th October was not made by him, nor by Mr O'Connor, and he did not stamp the diary. He described the two weeks as unsettling, with arguments and a difficult working atmosphere. For him, what had been said was threatening and intimidating. While he had little interest in the diary, when he discovered it was missing, this was another step towards matters spiralling out of control. As far as Mr Burton was concerned, he knew Mr Tracey had the diary. When it re-appeared it was stamped and he was satisfied only one person could have done that, Mr Tracey. The diary had " suddenly " become a sign out book and this " just took me over the edge, I just couldn't do it ". This experience was new for him, and it could not continue. He had a busy practice upstairs and emotional difficulties downstairs. It had to stop, and he wanted Mr Tracey to go. He could not work with him and the idea of continuing to work with Mr Tracey for four months was out of the question.

Mr Burton said that it had been their intention to give Mr Tracey the letter in the morning, but as Mr Tracey had a business meeting, they did not see him until the afternoon. Mr Burton went to the two young engineers, Mr Burkett and Mr Kelly, who were downstairs and asked them to leave for a couple of hours. He maintains that only Mr Tracey, Mr O'Connor and he were present in Mr Tracey's office when they had a conversation with him. It was to the effect that they could not continue like this and that he was being requested to leave within the hour. A letter was handed to Mr Tracey, which Mr Tracey disputes. Mr Burton expected Mr Tracey to say that he would go as soon as he could, but Mr Tracey refused to leave. Mr Tracey said that he was going nowhere, and that they could not make him leave. Mr Burton told Mr Tracey that he had to go and that they would change the locks. Mr Tracey replied that if that was done, he would show up the next morning with his solicitor and he would get in. Mr Burton said they were unclear as to how they would deal with the situation. It was approximately 3:30pm at this time. Mr Burton contrasted this to what had happened on the 4 th October. He had thought that they were still on good terms on that day. The atmosphere on the 19 th October was different. Mr Tracey was staying put even though he knew he was not wanted there. Mr Burton found it difficult to understand Mr Tracey's evidence that he wished to have more time to collect his things because the files were the property of FPQ, and there was no reason that it would take Mr Tracey all the time it took him to leave, unless he was " doing something else ". Mr Tracey disputes this. Mr Burton said that had Mr Tracey sought more time, he and Mr O'Connor would have agreed. It was evident that Mr Tracey was not going anywhere. They needed help and decided to go to a solicitor to get advice. Before he left, he requested members of his staff to go to the conference room and to stay there while he and Mr O'Connor were gone. They left and went to see their solicitor. The advice received was that they could ask Mr Tracey to leave and, if he did not go, to seek the assistance of the Gardai. On their return, they informed Mr Tracey that they had received advice and told him that he could not stay; that if he did not leave, they would call the gardai to assist. According to Mr Burton, Mr Tracey was unphased. He responded that he was not going anywhere. After informing Mr Tracey of what they intended to do, they left and went to see the gardai. Mr Burton thought that this was at approximately 4:30pm. The gardai would not come down at that stage as they considered it to be a "domestic" issue. When Mr O'Connor and he returned to the office at 5:30 pm, they felt shattered. They went to the conference room with other members of staff. The " chaps " downstairs had gone home because it was 5:30pm. He recalled two people asking whether they could say goodbye to Mr Tracey. He replied that they could. They then left. He and the other members of staff were still in the conference room and were unsure of what to do. Mr Burton then became aware that Mrs Tracey was on the premises. Mr Burton felt that he had no control of his office. Gardai had not yet arrived when they received the email from Mr Tracey at 5:49pm. Mr O'Connor telephoned the gardai at 6:50pm. They arrived at 7:10pm. Mr Burton and Mr O'Connor spoke to them, and they went down Mr Tracey. While he did not look out the window when Mr and Mrs Tracey were leaving, his evidence is that Mr Charles O'Connor, Mr Alan O'Connor, Ms O'Flaherty and Mr Cunningham, did look out. Before Mr Tracey left, he gave them a letter timed at 9:15pm. He was unaware of how the letter was prepared as Mr Tracey's access to the central server had been cut off earlier in the afternoon. Following Mr and Mrs Tracey departure, Mr Charles O Connor, Mr Alan O'Connor, Mr Cunningham, Ms O'Flaherty and he went downstairs and witnessed what he described as devastation. Mr Tracey's office had been emptied. There were torn papers in another area. On the 20 th October 2004, he took photographs on a digital camera. These were uploaded to the server and downloaded many years later by Mr O'Connor's daughter. The server had been kept in Mr O'Connor's house after they had moved offices sometime later. The destroyed documents included tenders. It took several days to replace them. He did not accept that any intellectual property of Mr Tracey had been kept or taken.

In cross examination, Mr Tracey disputed Mr Burton's recollection of events. He highlighted the contents of the amended defence where it is was pleaded that seven and half hours' notice had been given and that, therefore, he ought to have had seven and a half hours to leave the premises from 2 pm. That would bring the time to 9:30 p.m. Mr Burton replied that the letter which he was handed said that he had to leave within one hour and that he had not changed his mind about the time afforded Mr Tracey to leave. He also described as belligerent and bullying Mr Tracey's conduct in the previous two weeks. Mr Burton did not accept that he went to the Gardai in order to cause harm to Mr Tracey. He accepted that he did not make a statement to the gardai, nor did he get a report from them. He could not recall how many sacks of paper he saw the following day. Mr Burton accepted that the incident with the diary was the last straw. At paragraph 61 of his statement of evidence, Mr Burton had stated that on the 19 th October the diary was found on top of a filing cabinet in the basement, that additions had been made to it and that he decided to keep the diary in his possession to see what happened. In this statement, he referred to an email sent by Mr Tracey and described this as the last straw. The diary been missing for a week and Mr Burton accepted that he was aware of the rediscovery of the diary by Miss Lyons. Mr Tracey used the word " pettiness " to describe the diary incident. Mr Burton agreed with this description, but he said that the pettiness was on Mr Tracey's part. He accepted that the diary had not been used for the remainder of the year. The email referred to in Mr Burton's statement of evidence has not been produced in evidence.

(e) Ms Lyons' Evidence

Ms Lyons' evidence is that early on the morning of the 19 th October, she was informed by Mr Burton and Mr O'Connor that they were going to ask Mr Tracey to leave the office within one hour and to clear his desk by 10am. They were not then aware that Mr Tracey had a meeting arranged in the conference room. That meeting continued until 12:30pm. Mr Burton and Mr O'Connor decided to defer meeting with Mr Tracey until after lunch. Two junior engineers were asked to leave while matters were to be discussed with Mr Tracey. Ms Lyons' desk was on the middle floor, and she could hear Mr O'Connor and Mr Burton entering Mr Tracey's office. She then could hear Mr Tracey making himself a cup of tea or coffee and going back to his room and closing the door. Mr O'Connor and Mr Burton returned a while later. They told her that Mr Tracey had refused to leave. They were distressed. Mr Burton and Mr O'Connor decided to contact a solicitor. She offered to stay at reception while they went to the solicitor, but they told her to go home. S he became aware that a decision had been taken to change the locks. Mr Burton and Mr O'Connor left the office. When she left at approximately 4:30 pm, they had not returned. Ms Lyons arrived at work at 8am on the following morning. She was brought into the office by Mr Burton because the locks had been changed. She saw bags containing torn papers outside Mr Tracey's office. She identified these by reference to photographs. They had a brief look at the documents and decided not to disturb them. A garda arrived later. It was necessary to contact tenderers to obtain copies of documents. Ms Lyons also attempted to access the computer in Mr Tracey's office. She could not do so. She did not know the password. She contacted an IT company and a representative, Mr Greg McKenzie, arrived and unlocked the computer. He has not been called to give evidence. Ms Lyons was cross-examined at some length by Mr Tracey, including in relation to the treatment of VAT on his invoices in those accounts.

(f) Mr Alan O'Connor's Evidence

Mr Alan O'Connor was employed as a quantity surveyor with Burton and O'Connor Ltd between 2001 and approximately 2014. He is not related to Mr Charles O'Connor. His evidence may be summarised as follows. He was present on Mr Tracey's last day in the office. He became aware that Mr O'Connor and Mr Burton had asked Mr Tracey to leave, and that Mr Tracey had refused to do so. He said that Mr Burton and Mr O'Connor were worried and stressed. They left to visit their solicitor. They told him that a locksmith was on the way. He thought this occurred at approximately 2pm. Mr Alan O'Connor and his colleague, Mr Oliver Cunningham, went down to the basement level to make sure that everything was in order. The door to Mr Tracey's room was closed, as was normal, and everything appeared as it should be. He recalled Mr Burton and Mr Charles O'Connor returning in mid-afternoon, at which time they requested that he and his colleagues come to the conference room. Mr Burton and Mr O'Connor went down to the basement again to ask Mr Tracey to leave the premises. They subsequently returned to the boardroom and advised Mr Alan O'Connor and his colleagues that they were going to Store St Garda Station to seek assistance. He and his colleagues were asked to stay in the boardroom. The locksmith arrived, and Mr O'Connor went to the basement with him to show him the backdoor. While the locksmith worked, Mr Tracey's door opened, and he inquired as to what was happening. Mr O'Connor informed Mr Tracey that the locks were being changed. Mr Tracey did not respond, went back into his office and closed the door. Mr O'Connor returned to the boardroom. He could not recollect whether anyone was with Mr Burton and Mr O'Connor when they returned between 5pm and 6pm. He was requested, along with Mr Cunningham, to go down to the basement level once again. They did so and did not find anything out of place. He did not recall whether he saw anyone on the basement level. They checked each room except for Mr Tracey's office. Mr Tracey's door was closed. He believes that the gardai arrived sometime between 6pm and 7pm, although when cross examined, he accepted that he could not recall when they arrived. He said that the gardai went directly to the basement before coming to the boardroom. The atmosphere in the boardroom was extremely stressful. They had been trying to get on with their day-to-day business and his overall sense was one of relief that the events of the day had concluded without incident. He had never been in a situation where the gardai were called. Mr Tracey and his wife left the building through the back door at around 9:30pm. To him, they seemed to be in good spirits. Those who had been in the conference room went down to the basement. He saw sacks of torn papers in the immediate vicinity of, and outside, Mr Tracey's office. When cross examined, he said that they would go to the basement four or five times every day. He did not accept that the presence of gardai caused stress. For him, a situation existed where a person on the premises was refusing to leave. This caused uneasiness and stress to those who were in the boardroom at the time. He also confirmed that Mr Burton and Mr O'Connor came into his room earlier and said that they had asked Mr Tracey to leave the building, that he had refused. They also requested him to stay in the building while they sought legal advice on how to proceed. When questioned about the sacks of paper, he could not recall the exact number he saw. He could not recall when the gardai left. He could not recollect why he did not check the basement when the gardai were present. He confirmed that he had been in the basement on three occasions, twice with Mr Cunningham. He could not recall whether he said anything to the gardai. He stated that they undertook to check the basement themselves and they were not instructed to do so. Mr O'Connor accepted that he had "zero" evidence of Mr Tracey destroying any documents. He did not recall why the locks were being changed, nor did he wonder why that was so. He was closely questioned about his statement of evidence where he had stated that, after Mr Tracey left the office, Ms Lyons tried to open the computer. He said that she was savvier with computers than others there. It was pointed out to him that Ms Lyons' evidence was that she left at 4:30 pm. On re-examination he accepted that he could be wrong that it was the night of the 19 th October when he saw her attempting to open the computer. Nevertheless, he said that Ms Lyons did attempt to open the computer.

Exchange of Correspondence Between the 19 th October 2004 and 6 th December 2004

I now consider the evidence of events post the 19 th October 2004. On the 20 th October 2004, Mr Walley, the solicitor retained by the defendants, wrote to Mr Tracey, in which he stated that Mr Tracey had been advised on the previous day that he was no longer expected to work out the period of his notice, and that he had been requested to leave the premises forthwith. It was written that the defendants were satisfied to pay him any outstanding fees and that an invoice was awaited. It was recorded by Mr Walley in the letter that as Mr Tracey had refused to leave the premises, his clients were obliged, with the greatest reluctance, to seek the attendance of the gardai to request him to leave. The letter recorded that when the gardai arrived " at 7 pm" that " you would not leave for a further two and half hours". Complaint was made that files had been destroyed and it was stated that there was clear evidence of documentation shredding. He wrote that a security lock had been placed on the computer and that correspondence and files, business cards, office utensils, a mobile phone and a pair of site boots were missing, which he requested be returned. He advised that his clients would have to consider whether they would make a formal complaint to the gardai. Mr Tracey was requested not to represent himself as being an agent of Burton and O'Connor Ltd trading FPQ Consulting Engineers and Frank P Quigley and not to make contact with former clients of the company. The letter concluded by stating that they awaited Mr Tracey's invoice for consideration and discharge.

On the 29 th October 2004, Mr Tracey wrote a letter on EDM notepaper, addressed to Mr Burton and Mr O'Connor as directors of FPQ Consulting. It was entitled " Serious misconduct and breach of contract by you both ". He attached, in total, nine invoices, and a list of expenses due " in compliance with the contract for services ". He sought full payment within 14 days. He claimed entitlement to 5/18 th of FPQ profits up to the 1 st March 2005. Of the nine invoices, three were described as copies of invoices - FPQ 15, 16 and 17. The first two related to payments due for May, June, July and August 2004; the second a claim for March/April 2004. A claim for overtime was contained in invoice FPQ-17. Invoice FPQ-18 was issued in respect of the four months' notice period. Invoice FPQ-19 concerned standing charges for four months, invoice FPQ-20 for holidays, invoice FPQ-21 for sums due for October 2004, invoice FPQ-22 for the standing charge for October 2004 and invoice FPQ-23 for payment of overtime on the 19 th October 2004, that is the day Mr Tracey left. These invoices were subsequently stamped as having been received by "FPQ Consulting Engineers" on the 2 nd November 2004.

On the 11 th November 2004, Mr Burton replied on FPQ headed paper requesting Mr Tracey to confirm that the list of invoices represented the entire claim for services to FPQ Consulting Engineers, and that the total amount was €119,887.17. This was acknowledged by Mr Tracey on the 16 th November 2004, and he described this letter as " confirming payment due to me in the amount of Eur 119,887.17" . Mr Tracey sought payment on or before the 26 th November 2004. He again listed the invoices. He also repeated that he was entitled to 5/18ths of FPQ's profits up to the 1 st March 2005.

In a reply dated the 23 rd November 2004, Mr Burton clarified that the letter of the 11 th November 2004 was not a confirmation of payment in the stated amount, it was simply requesting confirmation that it was a full statement of outstanding amounts. He wrote that they would consider this as being "fulsome" and that they would respond in the next few days after full consideration. By letter of the 23 rd November 2004, Mr Tracey warned that the failure to make full payment of all invoices and profit, up to the 1 st March 2005, would result in immediate commencement of legal proceedings. A letter dated the 24 th November 2004 was included in books of correspondence for trial. Mr Tracey, who could not recall receiving it, was cross examined about it. Mr Burton explained in later evidence that it was not in fact sent out. In that letter, it was written that the claim had been considered and that overtime should be excluded. Reliance was placed on the requirement for prior approval on accordance with the overtime letter. They wrote that "we are aware that you put a lot of effort into FPQ but at no time did Mike or Charlie give you prior approval to be paid for any overtime worked. Therefore, these costs should be excluded from your claim". Two further smaller invoices were also excluded. In the letter, complaint was made that they were required to retrieve information which Mr Tracey had allegedly deleted from the computer. It was stated that it had been discovered from retrieved files that work was included which did not form part of projects undertaken by FPQ, but projects under the control of EDM. It was claimed that because of the manner of Mr Tracey's leaving and the destruction and removal of files, FPQ had found it very difficult to take over the management of the projects for which Mr Tracey had responsibility. They had managed to retrieve some of the information, and from the total figure of €119,887, a contra claim was assessed at €20,886.57 for expenses incurred in consequence. The proposed settlement figure, as drafted, was €74,800.93, representing the final settlement of all monies outstanding. The letter concluded with an expression of disappointment at Mr Tracey's behaviour when leaving and that it was expected as part of the agreement he would return all property, documentation, files, business cards, office utensils, a mobile phone and site boots. However, as stated, this letter was not sent and to the extent it is relevant, if at all, it is only to the state of mind of Mr Burton and Mr O'Connor at that time and not to the interaction between them and Mr Tracey in November and December 2004. It is regrettable that Mr Tracey was cross examined, and matters put to him, about a letter which was never sent to him. However, the court notes that it was Mr Burton who clarified this in his evidence.

On the 6 th December 2004, Mr Tracey replied to the letter warning again that the failure to pay the full amount of €119,887.17 on or before the 10 th December 2004, in addition to 5/18 th share of profits up to the 1 st March 2005, would result in immediate commencement of proceedings. Mr Walley wrote a without prejudice letter on the 6 th December 2004. Mr Tracey replied in open correspondence, in which he stated that he worked under the terms of the contract for services of the 24 th February 2004, which clearly did not mention the need for prior approval. The overtime claim was detailed and could be verified by witnesses. Claims for overtime had been lodged on the 31 st May 2004 and the 16 th September 2004, without objection.

Mr Tracey also stated that the letter of the 19 th October 2004 superceded the letter of the 4 th October 2004 and, therefore, invoices FPQ-21 and 22 stood. The time between 5:30 pm and 9:15pm on the 19 th October 2004 was spent collecting his personal belongings and that " on this basis we are willing to concede this item ". The claim in respect of expenses stood, as the subscription was for an Architect's Journal in which he was driving an active campaign to promote FPQ, something which was " clearly covered by the contract for services". Mr Tracey refuted that he had destroyed or removed files and wrote that he had always acted in the best interest of FPQ. The contents of the computer automatically backed up daily on a server. When setting up the computerised system, he had used EDM documents as templates for FPQ. No business was conducted at the offices of FPQ for EDM. This was described as false allegation. Mr Tracey wrote that a serious view was being taken of the defendants' actions and treatment of him. These were extremely damaging to his professional standing within the close-knit Irish industry. He concluded by drawing attention to the previous letter of the 6 th December 2004 and stated that " unless we can bring this matter of payment of EUR119,347.21 in full to a speedy conclusion we will be proceeding as outlined in the said letter".

Exchange of Correspondence Between the 22 nd August 2005 and the Commencement of Proceedings on the 1 st December 2006

There is a gap in correspondence until Mr Tracey's then solicitors, Messrs Mason, Hayes and Curran, wrote on the 22 nd August 2005, protesting that despite the letters of the 23 rd November 2004, 6 th December 2004 and 14 th December 2004, he had not received payment. Without prejudice to any claim which he might have in relation to the manner in which his contract was terminated and ensuing stress, immediate payment was sought. The letter referred to a list of items of intellectual property which it was claimed had been retained, the return of which was required. These items were specifications for mechanical and electrical engineering, drawing title blocks, drawing procedures, schedules, design procedures, calculation sheets, costing files, report procedures and letter formats. It was advised that if they were not returned, appropriate action would be taken to prevent infringement and to seek compensation. Payment of the full amounts due, including the profit share, was sought within 14 days, failing which High Court proceedings would be instituted.

A holding letter was sent by Mr Walley's office on the 22 nd August 2005 and a more complete reply issued on the 14 th September 2005. It was stated in this letter that a specific offer had been made in settlement of the claim. A cheque for €91,528.82 was enclosed. This was described as the total value of the accepted invoices, and it was stated that any other claim would be defended. Reference was made to a counterclaim. Details were sought in respect of the complaint about intellectual property rights. It was stated that it was believed that the documents being referred to were generated in the ordinary course of services provided and in respect of which full payment had been made. A copy of the first-year accounts prepared by Ryan Cannon Kirk was enclosed. No profits were made. A "without prejudice" reminder was sent on the 21 st October 2005.

On the 16 th January 2006, Mr Tracey replied rejecting the payment, stating that the " current offer " of €91,528.82 " has been clearly rejected ". Payment of €140,000 was sought, which included a claim for share of profit for the first year of €20,652. Proceedings were threatened if full payment was not received by the 30 th January 2006. On the 23 rd January 2006, the solicitor for the defendants received a letter from Messrs Mason, Hayes and Curran, who had been acting for Mr Tracey, enclosing a cheque for €91,528.82 and informing him that they no longer represented Mr Tracey.

In cross examination, it was put to Mr Tracey that he had been paid. He did not accept this. He said that he had not accepted the money. The cheque had been sent to solicitors who had acted for him for a short period. It was not accepted and was returned. He did not cash the cheque, nor did he receive it. He did not know why it took four months to return it. Unknown to him the solicitors had lodged the cheque in their account. His relationship with them was terminated and a cheque was sent back. He could not recall when he found out about the cheque or whether the letter of the 14 th September 2005 was brought to his attention. He confirmed that, at a meeting, the solicitors had brought to his attention that there had been an offer of €91,000 and, he stated, " we rejected it ".

The plenary summons was issued on the 1 st December 2006.

Medical Evidence

Mr Tracey's claim includes a claim for personal injuries. A psychiatrist called by the defendants gave evidence before medical witnesses who were called by Mr Tracey. It is proposed to consider this evidence in the order in which it was presented to the court.

(a) Professor Aiden Corvin, Consultant Psychiatrist

Professor Aiden Corvin prepared a report dated the 9 th April 2019, which formed the basis of his evidence. It was based on (a) a consultation with Mr Tracey which took place on the 3 rd April 2019, and (b) on information supplied to him by the solicitor representing the defendants. In a letter from the solicitors requesting the report, Prof Corvin was asked to address the following in particular: -

(i) Whether Mr Tracey suffered from a recognised psychological condition as alleged and whether it continues.

(ii) Assuming that he does suffer from one or more psychological conditions, is it possible to identify the cause and/or ongoing causes of the condition or conditions and/or symptoms relating to them.

Prof Corvin noted that Mr Tracey had referred to ongoing persecution by gardaí since 1999. He had an issue with his neighbour who is a judge and he described collusion with An Garda Siochána. Prof Corvin had available to him reports from Mr Tracey's GP, Dr David Lombard, and a psychotherapist, Ms Martina Dennison. Having considered those reports and his consultation with Mr Tracey, Prof Corvin opined that "Mr. Tracey endorsed symptoms consistent with a major depressive episode of mild severity in accordance with the DSM- V classification" (the Diagnostic and Statistical Manual of Mental Disorders 5 th edn.). This diagnosis was based on the presence of five or more symptoms which he described. He reported that Mr Tracey had informed him that his symptoms had resolved that he was no longer taking medication or engaging in therapy, and that he had not found either helpful. While unable to establish from the information available when Mr Tracey's symptoms commenced, their duration or functional impact, taking into account the contents of the reports to which he had access, Prof Corvin was of opinion that it was likely (a) that these symptoms preceded his dismissal in 2004 and (b) that they related to the stress induced by Mr Tracey's perception of a conspiracy against him from 1999. There was, in his view, no evidence that Mr Tracey was currently suffering, or has recently suffered, from a major mood or anxiety disorder. Prof Corvin noted that Mr Tracey did not describe being exposed to threats of death or serious injury on his dismissal from work. Nor did Mr Tracey describe intrusiveness, avoidance, or cognitive/mood symptoms such as to suggest that he had experienced post-traumatic stress disorder in accordance with the DSM-V criteria. Prof Corvin also expressed, to a high degree of confidence, the opinion that Mr Tracey exhibited many of the features of paranoid personality disorder which, in his view, predated his dismissal in 2004 and were present since 1999, if not earlier. His opinion was that such features were likely to have significantly influenced Mr Tracey's perception of his treatment in his dismissal from work. He added that persons with features of paranoid personality disorder are at an increased risk of depression; and that being out of work or losing a job were substantial stressors. Prof Corvin opined that it was not possible to rule out as contributory to the reported depressive symptoms, unknown and known factors such as Mr Tracey's perceived persecution by the judiciary and gardai. Based on the information available, he thought it likely that Mr Tracey experienced depressive symptoms before 2004 and that there was a high probability that post-traumatic stress disorder was to be excluded. The main diagnosis was that of depression.

Prof Corvin was extensively cross examined by Mr Tracey about the validity of his opinion and also about errors in his report. These included the dates on which Dr Lombard and Ms Dennison prepared their reports. Prof Corvin referred to Ms Denison's report as having been dated the 1 st October 2017 when in fact it is dated the 1 st October 2007. Dr Lombard's report is dated the 22 nd May 2008 but was described as being dated the 22 nd May 2018. Prof Corvin also made reference to a letter from Ms Dennison to Dr Lombard in 2015: the letter of referral was written in 2005. Prof Corvin referenced what he described as a clinical meeting with Mr Tracey on the 4 th April 2019; the assessment was conducted the day earlier. Mr Tracey also questioned Prof Corvin's ability to make a valid assessment some 15 years after the events. He queried that Prof Corvin appeared to have access to the defendants' defence but, when questioned, Prof Corvin was unaware that the case concerned a claim for breach of contract. Prof Corvin stated that Mr Tracey was afforded seven and a half hours to remove his possessions and vacate the office; a plea which was made in the amended defence. Also, at paragraph 1.12 of his report, Prof Corvin repeated a plea contained at paragraph 21 of the amended defence to the effect that the contract was terminated for "good cause" or "due to the poor relationship" .

Prof Corvin did not accept that he acted as an advocate for the defendants and that he was not impartial or objective. He accepted that there were errors in his report; but the substance of his response was that they did not affect his opinions.

(b) Dr David Lombard, General Practitioner

At the time that he gave evidence, Dr Lombard had been Mr Tracey's general practitioner for in excess of thirty years. He prepared a report on the 22 nd May 2018 which was based on earlier reports and attendances in 2005 and 2006. On the 8 th March 2005, Mr Tracey attended and informed Dr Lombard that he had been dismissed by his employer, and that no reasons for dismissal had been given.

Dr Lombard described Mr Tracey as being understandably upset and distressed by the loss of his job and confused as to why he was given no reason for his dismissal. He next saw Mr Tracey on the 4 th October 2005, at which time he continued to have low mood, low self-esteem and lack of confidence. Mr Tracey was feeling depressed by what was described as the ongoing effect of the loss of his job and the inability to find employment. He referred Mr Tracey to Ms Martina Dennison, a psychotherapist, and following this referral, Dr Lombard saw him again on the 15 th November 2005, when he prescribed anti-depressant medication, Lexapro, 10 mgs daily. Following a further assessment by Ms Dennison on the 9 th February 2006, Dr Lombard increased the prescription to 20 mgs of Lexapro daily. At that time, Mr Tracey had been complaining of low mood, tearfulness, sadness and reduction in appetite. Mr Tracey was seen once again on the 24 th March 2006 when he was advised to consider a referral to a psychiatrist, Mr Anthony Clare, for ongoing management.

Dr Lombard's assessment is that Mr Tracey inability to find regular employment had a huge personal impact on his wellbeing. It was also a significant financial stressor for him. In his report of May 2018, Dr Lombard noted that Mr. Tracey was no longer on anti-depressant medication or attending counselling. Dr Lombard expressed the opinion that Mr Tracey's mental health continued to be significantly impacted by the long-term loss of regular employment as an engineer. In a further short report prepared on the 20 th October 2021, he reconfirmed that Mr Tracey had not sought medical attention from him for any psychological health issues prior to March 2005. Emphasis has been placed on this evidence by Mr Tracey.

When questioned by Mr Tracey as to whether he agreed with Prof Corvin's assessment of a major depressive episode of mild severity, Dr Lombard said he would have to speak to the author of the report. He had not been consulted by Prof Corvin. Dr Lombard confirmed, however, that in clinical practice he only prescribed anti-depressant medication if there was a presentation of at least moderate depression. In over thirty-two years, Mr Tracey had not presented to him with signs of paranoia. He also confirmed that in 2019 Mr Tracey attended him for referral for psychiatric reporting. He wrote to Dr Martin McDonagh, a psychiatrist, who replied that his books had been closed. Dr Lombard explained to Mr Tracey that the HSE did not provide this service. The pleadings, however, indicate that Mr Tracey did attend Dr McDonagh on 8 th September 2006.

Under cross examination, Dr Lombard agreed that he did not prescribe anti-depressant medication until seven months after Mr Tracey's initial presentation in March 2005. He had, however, adopted what might be described as a wait-and-see policy, and advised Mr Tracey to return if symptoms worsened, which Mr Tracey did in November 2005. He also accepted that his initial assessment in March 2005 was that Mr Tracey did not require medication and he also accepted that he would not have waited for seven months if he had felt that Mr Tracey was unable to function. The prescription level of 10 milligrams was as a starter dose for a person of Mr Tracey's age. 20 milligrams was at the top end of the dose range, being five to 20 milligrams.

Dr Lombard had no recollection of seeing Prof Corvin's report before he gave evidence. The contents of this report were explored in detail with him, and he disagreed with Prof Corvin's assessment in a number of respects. Although he did not have a specialised degree in psychiatric disorders, he had 42 years practice experience. He accepted that depression is categorised as mild, moderate or severe. Where severe, suicidal issues arise. Where moderate, issues of functionality arise. While the majority of people who have depression have mild depression, he was of opinion that Mr Tracey suffered moderate depression. Thus, he disagreed with Prof Corvin on the issue of severity, although he accepted that he did not carry out a forensic examination. He stated that, based on his knowledge of Mr Tracey for 32 years, he was not a man to exaggerate.

Dr Lombard was questioned about his awareness that Mr Tracey had issued multiple proceedings in 2006. He accepted that Mr Tracey appeared to have changed his focus into what he described as a quasi-legal career. When pressed on whether this was evidence of Mr Tracey's ability to function during that time, he replied that he had no way of measuring how functional Mr Tracey was in that area. Nevertheless, he accepted that as Mr Tracey had completed his medication by 2007, his function must have improved by then. When he prepared his report in 2018, he did not carry out a medical examination. He also accepted that his diagnosis, particularly in relation to cause, was based on the information supplied by Mr Tracey. When Dr Lombard assessed Mr Tracey in March and October 2005, he was not then aware of any other stressors. However, he became aware of the assault charge in 2006, and Mr Tracey informed him that the matter had appeared in newspapers . He confirmed that if such matters had been brought to his attention, he would have taken them into consideration.

Dr Lombard was unaware, except perhaps in a very general way, of the detail of pleadings which had been advanced by Mr Tracey in other cases. Dr Lombard accepted that he had a general awareness of issues which had arisen with An Garda Siochána, but he also accepted that he was not aware before his attendance at court to give evidence that Mr Tracey had instituted proceedings claiming damages in other matters. He became aware in the summer of 2016, following a telephone call from Mrs Tracey, that her husband had been arrested and was in the Bridewell. He telephoned the sergeant in charge and offered such medical assistance as might be required.

Dr Lombard accepted that he did not present himself as an expert witness in relation to the cause of a Mr Tracey's depression. He was giving evidence as an experienced general practitioner.

Dr Lombard was also questioned about Prof Corvin's opinion that Mr Tracey had shown evidence of paranoid personality disorder. He repeated that he had never seen such personality traits in Mr Tracey. Had he done so, he would have referred Mr Tracey for treatment. He accepted that Mr Tracey had trust issues with various institutions of the State, but he did not agree that he had symptoms and signs of paranoid personality disorder. He believes that Prof Corvin has conflated trust issues with paranoid personality disorder, as diagnosed by him. Dr Lombard accepted that he did not have experience of the DMS-V criteria, but at the time he prepared his report he believed Mr Tracey was telling him the truth and he found it difficult to accept that Mr Tracey would keep all other matters close to his chest. Mr Tracey did not attend him subsequently in relation to fallout from events or proceedings.

Ms Dennison is a psychotherapist and occupational psychologist to whom Mr and Mrs Tracey were referred by Dr Lombard in October 2005. In a letter to Dr Lombard on the 10 th November 2005, she wrote that she had reviewed Mr Tracey for anxiety and depression on a self-scored basis, utilising the "Beck" scale which was based on the answers to questions posed. She located them on the scale in accordance with those answers. Mr Tracey had an anxiety score of 57, indicative of extreme anxiety (50 being the starting point between severe and extreme). He scored 21 for depression, which was the first score on the moderate depression scale. Ms Dennison informed Dr Lombard that in her opinion Mr Tracey required a review of his health status, and that he would benefit from medication to help his mood and alleviate anxiety. She expressed the opinion that he required ongoing support for his emotional wellbeing.

In a report dated the 1 st October 2007, prepared at the request of Mr Tracey, Ms Dennison recorded that Mr Tracey, when first seen on the 13 th October 2005, presented with depression, extreme anxiety, exhaustion (mental and emotional) and had aspects of sequelae associated with post-traumatic stress disorder. These included recurrent intrusive and distressing recollections of the event surrounding his dismissal from work, including images, thoughts and perceptions. He was acting and feeling as if the traumatic event was recurring, in the sense of reliving the experience. He had symptoms of increased arousal which caused sleep difficulty. Mr Tracey was hypervigilant and had an exaggerated startle response. Mr Tracey told her that he had been destroyed professionally. It was her assessment that the consequences of the dismissal on Mr Tracey's life were many. He had lost confidence in himself. He felt an outcast from his profession. He reported high avoidance behaviour, which she described as a very common response to such an event. Mr Tracey felt powerless in his own life, was afraid to meet with his peers lest he be judged unfairly or shunned and he carried with him a morbid shame of being dismissed. Ms Dennison wrote in her report and repeated in her evidence: -

"The dismissal of Mr. Tracey from his position in such circumstances has caused him to feel that his good name has been irrevocably damaged within his profession and has thus been 'lost to him' in what is one of man's most important arenas in life - the working world."

Mr Tracey had lost more than his job. He lost his position in the world, and he had suffered serious financial consequences from lost income and consequences for his standard of living. She recorded that Mr Tracey had sent his C.V. to various employers in his profession but had not, to date, been able to secure suitable permanent work. In her opinion, Mr Tracey's dismissal was a major contributor to the decline of his emotional wellbeing. She concluded: -

"It is questionable as to whether or not Mr. Tracey will ever again be able to work in any fulltime capacity in the profession for which he is so well educated, due to all of the factors outlined in this report."

In her evidence, she stated that there were other events happening in the background that were disturbing him, and which were alluded to in court but in in terms of the sequelae of events as described in court by Mr Tracey, she regarded the loss of his job as the straw that broke the camel's back for him.

Ms Dennison agreed that she had not conducted an occupational assessment for the purposes of determining Mr Tracey's capacity for work. She also accepted that she did not make a medical diagnosis, she did not have a medical degree but gave an opinion from the point of view of the emotional well-being of the person at that point in time . She had not treated Mr Tracey in her capacity as a therapist since September 2007. When she saw Mr Tracey in 2007, she was not as qualified as she is now. She was, however, satisfied that she had sufficient knowledge to express an opinion. She did not agree with the opinions expressed by Prof Corvin. Ms Dennison questioned how Prof Corvin could arrive at his conclusion based on one meeting, 15 years after the events. While not providing a medical diagnosis, Ms Dennison was satisfied that Mr Tracey had post-traumatic stress disorder, albeit she did not, in her assessment, apply the DSM criteria in arriving at that conclusion. On further cross examination she accepted that she did not provide a diagnosis and that Mr Tracey came to her for treatment. She also accepted that Mr Tracey who had requested her to write a report based on him being let go from work and that she was asked specifically by Mr Tracey for a report related to his work. Ms Dennison alluded to other matters which were so large that she did not have time to deal with it; and that she would need a month to write a report. She agreed that she was not looking for causation, she was looking for an overall holistic result that could be worked with to improve Mr Tracey's life. Ms Dennison was also cross examined about other potential diagnoses, such as that referred which was referred to by Prof Corvin, and her view was that people can have different understandings of what was taking place. She was not previously contacted by Prof Corvin.

Actuarial Evidence

Evidence was given by Mr Peter Byrne and Mr Nigel Tennant, both qualified actuaries. They gave evidence of their estimation of past losses of earnings, interest on such figures as were assessed and actuarial multipliers in respect of the claim for future losses of earnings. Mr Byrne was called by Mr Tracey, and Mr Tennant by the defendants. Both operated on the basis of the information with which they had been supplied. Mr Byrne's figures were based on a continuing contract. He was not provided with an independent assessment of Mr Tracey's capacity for work. In that context, Mr Tracey, in submissions, contends that it is not a question of Mr Byrne having information on his ability to work, it was a question of him not being able to acquire work due to irreparable reputational damage. Mr Tracey is very critical of Mr Tennant's report which he describes as providing an inaccurate evaluation of his losses, that Mr Tennant had not seen the contract of employment or the contract for services, that he inaccurately assessed Mr Tracey's basic yearly salary and that he provided information concerning an irrelevant salary of €80,000 per annum. Mr Tracey also questions the reference to the Reddy v Bates principle.

Proceedings in Other Causes

Significant issues arise as to the parameters of the duty of care, if any, owed by the defendants to Mr Tracey and the extent to which a duty of care in negligence can exist when a contract is terminated, causation is also very much in issue. The defendants place emphasis on claims made by Mr Tracey in other proceedings which he has brought. In some of these proceedings he has maintained a claims for losses of earnings which it is suggested are similar to those made in these proceedings. When Mr Tracey was examined about certain pleadings in some of these cases, his reply was that they were " not about employment " or " losing your career ", that they were about malicious prosecution, being framed because he stood up to the system and pursued his rights to retain a planning permission which he had received. A schedule of proceedings was supplied to the court. They are here referenced in the order in which they were instituted. Nothing in this judgment is to be, or could be, read as a reflection on any of these proceedings or their merits.

2006/6407P - Kevin Tracey and Karen Tracey v Michael McDowell and Others : This involves a claim for damages for malicious prosecution and abuse of legal process, trespass, misfeasance in public office, wrongful arrest and false imprisonment. This claim arises from an incident which is alleged to have occurred on the 28 th May 2001 and to subsequent events alleged to have occurred up to March 2002. In a very detailed statement of claim, a claim for damages is made, inter alia , for intentional infliction of emotional and psychological distress and harm; and for trauma, anxiety, odium, hurt, shock, damage, loss, inconvenience, upset and expense occasioned by the defendants' actions.

2008/1840P - Kevin Tracey and Karen Tracey v Ireland, The Attorney General and Others : This is a claim for assault alleged against members of the gardai. It includes claims for malicious prosecution, abuse of legal process, conspiracy, collusion, trespass, assault and battery and the false imprisonment. It is pleaded that the plaintiff sustained severe personal distress, emotional and psychological damage, trauma, anxiety and mental distress. The incidents are alleged to have occurred in 2007. It is alleged that following assaults on Mr Tracey at the Bridewell Garda Station on the 31 st of May 2006, a prosecution was brought against a sergeant from that station. The proceedings arise from what is alleged to have occurred thereafter. At para. 21 of the statement of claim, delivered on the 28 th April 2009, it is pleaded that since 2000, when the plaintiffs received planning permission to build a house, they had been subjected to serious abuse by the State and that their lives had been greatly interfered with, causing enormous distress to them. A further iteration of the statement of claim was delivered in May 2009 (in evidence, Mr Tracey confirmed that the planning case was the catalyst for what he described as "all the abuse by gardai").

2008/4425P - Kevin Tracey and Karen Tracey v Ireland, The Attorney General and Minister for Justice and Others: This is a claim for assault and battery, malicious prosecution, conspiracy, slander and misfeasance of public office. It concerns an incident at Mr Tracey's home on the 14 th April 2003. Allegations are made against an off-duty Garda Inspector. The claim includes an allegation of forcible entry and trespass and that that his neighbour was the orchestrator of these acts against him. At para. 3 of a statement of claim, delivered on the 9 th July 2009, it is pleaded that it had been maliciously reported in the national newspapers (which included his photograph) that he had been convicted of assault. It is alleged that the prosecution had been dismissed in the District Court. Of some relevance to the current proceedings is the allegation that resulting from the alleged false reporting, allegedly arranged by his neighbour, he...:

"Lost his senior esteemed professional position as Chartered Engineer and Company Associate with severe consequential loss to him and Karen Tracey and their family . The loss of income alone to Kevin Tracey to 2009 is estimated at €1,185,270 (which is not index linked). The loss into the future and the loss of opportunity will be included as part of this claim". (Emphasis added)

At paragraph 14 it is alleged that the lives of the plaintiff and his family had been greatly interfered with, causing enormous distress to them, since the year 2000. The causes of action pleaded include:

"(h) Causing loss of work to the first and second named plaintiffs".

There is also a claim of infliction of emotional and psychological harm by the defendants resulting in severe post-traumatic stress.

2008/4425P - Kevin Tracey and Karen Tracey v Ireland, Attorney General and Others . The statement of claim was delivered on the 28 th July 2009. The proceedings allege trespass to the person, assault and battery of the plaintiff at his home on the 14 th April 2003. It appears to be an iteration of the previous claim to which additional defendants were added.

2008/11092P - In Kevin Tracey and Karen Tracey v Ireland, Attorney General and Others : This is a claim for damages for malicious prosecution, abuse of legal process, conspiracy, collusion and malfeasance in public office. It concerns an action for damages for malicious prosecution for alleged failure by Mr Tracey to wear a safety belt on the 23 rd November 2005 and for driving without insurance in a cul-de-sac leading to his home. The case which was dismissed in the District Court on the 6 th November 2008. Allegations also include malicious prosecution in respect of alleged threatening abusive and insulting behaviour by him on the 11 th September 2005, a case which was dismissed in the District Court on the 19 th March 2008.

At para. 35 of the statement of claim, the gravamen of this and other complaints are alleged to have their origins in the planning permission issue in 2000. A claim is pleaded in a general way in respect of post-traumatic stress, insult and injury to feelings and dignity, mental distress, anxiety, hurt and humiliation.

2008/11094P - Kevin Tracey & Karen Tracey v Ireland, Attorney General & Ors : In this claim Mr Tracey seeks damages for malicious prosecution, abuse of legal process, collusion, conspiracy, misfeasance in public office. The proceedings concern malicious prosecution of the plaintiff for alleged offences on the 23 rd November 2005 in a cul-de-sac where he lives - driving with no insurance, licence and failure to produce licence or insurance. These proceedings are closely associated with the previously mentioned proceedings.

2008/11101P - Kevin Tracey v Irish Times, Geraldine Kennedy and Eoin McVey. This is a claim for damages for libel arising from the publication of an article on Friday, the 17 th September 2004. They arise from a report of the outcome of a District Court case against Mr Tracey. He alleges that the charge was dismissed on the 16 th September 2004. The defendants then published an article on the 17 th September 2004 stating that he had been convicted of assault. A general claim is made for damages, inter alia , for personal injury and post-traumatic stress.

2008/11102P - Kevin Tracey v Independent Star Limited and Gerard Colleran: This claim also involves an action for libel in respect of similar reporting in the Star Newspaper on Friday, 17 th September 2004. Again, a claim for damages includes a claim in respect of distress, humiliation, and post-traumatic stress.

2008/11103P - Kevin Tracey v Independent Newspapers Ireland Limited, Gerry O'Regan, Stephen Ray and Tim Healy. This is a claim for damages for libel concerning the publication of an article in the Evening Herald on Friday, the 17 th September 2004, arising out of the previous day's proceedings. It is alleged that Mr Tracey's good name was damaged, and a claim is made for damages, inter alia , for infliction of emotional and psychological harm, and severe post-traumatic stress disorder.

2008/1104P - Kevin Tracey v Independent Newspapers, Philip Molloy, Paul Dunne, Gerry O'Regan and Michael Denieffe : This is a similar claim for damages for libel from publication of an article in the Irish Independent on the 17 th September 2004. It is similar in terms to the previously mentioned libel proceedings and includes a reference to severe post-traumatic stress caused to Mr Tracey.

2009/11765P - Kevin Tracey and Karen Tracey v Ireland, The Attorney General and Dublin City Council . These proceedings arise out of the planning permission issue. The claim is pleaded in negligence, nuisance, infliction of emotional and psychological distress and harm and the failure to vindicate the plaintiffs' constitutional and Charter rights. A claim was made for significant damages, and it is alleged that the plaintiffs suffered severe mental distress.

2010/2676P - Kevin Tracey and Karen Tracey v Patrick Crosbie, James Graham, Crosbie & Graham (Auctioneers) and Ors: This is a claim for damages for alleged negligence, abuse of process, perversion of the course of justice, deceit, and misfeasance in public office. The basis of the claim relates to alleged mistreatment at Cavan Circuit Court between the 12 th November 2007 and the 16 th March 2010, and it is alleged that there was a concerted attempt to prevent the plaintiffs from proceeding with court motions on a number of dates.

2017/130P - Kevin Tracey v Ireland, The Attorney General and The Minister for Justice and Equality . This is a claim for damages for harassment, false imprisonment, assaults, threat of unlawful arrest and abuse of process, inter alia . A statement of claim was delivered on the 27 th April 2018. The proceedings arise out of an allegation of assault in 2011 and for malicious prosecutions at later dates. A claim is made for damages for anxiety and mental distress.

Discussion and Conclusions Regarding Preliminary Matters and Events from the 4 th to the 19 th October 2004

(a) The Parties to the Agreement

The evidence establishes the following and to the extent that a finding of the court is required, I find as follows.

a. Mr Tracey is properly described as a party to the contract. No issue arises on this.

b. Burton and O'Connor Ltd, as party to the contract, is the proper defendant in respect of the claims for breach of contract. Mr Burton and Mr O'Connor in their individual capacities are and were not parties to the contract. I make this finding based on the following evidence:

i. Burton and O'Connor Ltd. was incorporated on the 5 th February 2004. A Certificate of Incorporation was produced at hearing.

ii. F and P Quigley Limited trading as Frank P Quigley was acquired by Burton and O'Connor Limited on the 1 st March 2004. The trading entity FPQ Consulting Engineers is and was a business name. It is not a separate legal entity. FPQ Consulting Engineers was re-registered by Sean Ward Engineering Ltd on the 5 th January 2010, Mr Burton and Mr O'Connor having given notice to the Companies Registration Office of cessation of business on the 13 th October 2009.

iii. FPQ Consulting Engineers was registered as a business name in the Companies Registration Office on the 21 st June 2004. The nature of the business is described as a mechanical and electrical consultancy with a principal place of business at 68 Amiens Street, Dublin 1. Company details provided are those of Burton and O'Connor Ltd with a similar address.

iv. This was a new business venture. The incorporation of Burton and O'Connor Ltd occurred after the signing of the contract of employment and prior to the parties entering into the contract for services. I am satisfied that the earlier agreement was signed in anticipation of the formation of the company, the employer being described therein as Frank P Quigley, Consulting Engineers (Burton and O'Connor Ltd).

v. The contracts were signed by Mr Burton and Mr O'Connor in their capacities as directors of Burton and O'Connor Limited. There is no evidence of their involvement other than as one might expect of a company director when dealing with company business, nor is there evidence of personal assurances. That the contractual arrangements were made by Mr Tracey with the company is supported by correspondence in which he addressed invoices to FPQ Consulting Engineers. This conclusion is also supported by the manner in which communications were addressed between the parties following the termination of the agreement. I have referred to the correspondence in detail above. Part of the reason for so doing was to emphasise between who and what entity, correspondence was exchanged. From these letters and invoices, it is clear that Mr Tracey did not seek to make Mr Burton and Mr O'Connor personally liable under the agreement.

vi. Mr McKeever acted as accountants and tax agents for the company since its incorporation on the 5 th February 2004. His firm, Ryan Cannon Kirk, prepared reports for Burton and O'Connor Ltd.

vii. Financial statements and the Directors' and Shareholders' report for the year ended the 28 th February 2005 and profit and loss accounts were prepared in the name of the company.

viii. Burton and O'Connor Limited, is the contracting party. Any claim by Mr Tracey which is framed in contract, or breach thereof, lies against the company and not against Mr Burton and Mr O'Connor in their personal capacities. It follows that to the extent that claims are made against them personally, they must arise from causes other than those which have their origins in contract.

(b) Which Contract is Operative? Was the Contract of Employment Superceded?

I find that the agreement between the parties consisted of the contract for services dated the 24 th February 2004, the side letter of the 24 th February 2004 and the overtime letter of the 27 th February 2004. I do so for the following reasons:

i. There are significant differences between the terms of the contract of employment and the contract for services.

ii. The terms and expressions " Employer" and "Employee" in the former, do not appear in the latter.

iii. The provision entitled " Job Title and Responsibilities" in the contract of employment was recast as "Professional Service and Responsibilities" and are materially differently in the contract for services.

iv. The provision entitled "Headed Paper and Company Stationery" in the contract of employment is materially different in terminology and effect to what is contained on the contract of employment. The contract for services introduced a standing charge monthly payment of €2,000 plus VAT for a "service", being ... " (t)he name and professional qualifications of Mr Kevin Tracey will appear on headed paper and company stationery as an Associate". There is no similar term in the contract of employment.

v. The contract of employment provided for a salary of €12,000 per month, rather than an hourly rate as provided in the contract for services. Provisions relating to health insurance and overtime rates are also different.

vi. The contract of employment nominates the " place of work " as Frank P Quigley, Consulting Engineers (Mechanical & Electrical), 68 Amiens Street, Dublin 1. There is no similar provision in the contract for services.

vii. The hours of work are specified in the contract of employment as being Monday to Thursday from 9am to 5:30pm, with an hour for lunch; and on Friday from 9am to 2pm. While this amounts to thirty-five hours per week; the contract for services makes no reference to times of work, simply that the " Time Spent Providing Service " is specified on the basis that Mr Tracey was prepared to offer up to thirty-five hours per week if required.

In the statement of claim, delivered on 20 April 2009, the following is pleaded: -

"7. On or about 30 January 2004 a contract of employment was finalised in writing by the plaintiff and the defendants.

On/or about 24 February 2004 a contract for services was finalised in writing by the plaintiff and the defendants. This contract for services superceded the contract of employment. (emphasis added)

On/or about 24 February 2004 a letter of conclusion further to the contract for services was finalised by the defendants

10.There were express terms of the contract for services and letter of conclusion furnished with the contract for services including" ... and these are repeated.

At para. 11 the plaintiff pleads that he will rely upon the following course of dealings: -

"(a) The contract for services dated 24 February 2004.

(b) The letter of conclusion furnished with the contract for services dated 24 February 2004."

In preliminary exchanges, Mr Tracey stated that the contract of employment highlighted what the company intended to engage him for, and what they intended to pay him for such engagement. When addressing the minimum notice requirement for termination contained in the contract for services, Mr Tracey stated that it was the very same as the contract of employment that was " superceded previously... that was superceded by this. " Further, when pressed under cross examination, Mr Tracey stated that " there was a contract of employment dated 13 th of January 2004, which was superceded by the contract for services...". He later added that " a contract of employment... is for a PAYE worker. The contract for services is for a person who has a business and particularly in my case it suited the defendants to employ me as a business because as a business I was registered with the Association of Consulting Engineers of Ireland ". In answer to a question posed by the court, Mr Tracey confirmed that the case was about a " breach of contract for services". Nevertheless, he added that the relevance of including the contract of employment was to highlight what was in the mind of the parties regarding conditions of the employment, " that it set the whole contractual relationship in motion ". Also, in cross examination, he repeated what was pleaded in the statement of claim. Mr Tracey volunteered in evidence that the reason why he did not put his name on the contract of employment, " which was superceded anyway, was that I wasn't going to put myself in the position of being director".

I find that the contract of employment dated the 30 th January 2004 was superceded by the contract for services and the "side" letter of conclusion of the 24 th February 2004. No significant issue arises in relation to the incorporation of the side letter into the agreement. From the above analysis, it is clear that the terms of the two agreements are inconsistent with each other in a number of material respects. While the contract of employment may provide some background information to the ultimate agreed arrangement, it came to an end and was superceded by the contract for services. I am satisfied, therefore, that Mr Tracey is mistaken in his contention that the contract of employment survived the execution of the contract for services. Any such contention is contrary to the pleaded agreement and is not borne out by the evidence.

I am satisfied, on the balance of probabilities, that Mr Tracey received the overtime letter. He was unclear about when he received it. There is nothing to suggest that when he received it, he demurred or disagreed with it. I accept that it became a part of the agreement. It appears to me, however, that, in view of my finding below, this is of little moment. The dispute is not so much whether overtime was worked, rather whether prior approval was obtained. Mr Tracey's evidence is that he did notify overtime in advance, not as part of a written contractual condition but as part of a verbal agreement. He gave evidence that he worked overtime almost immediately on taking up the position. While he denied that the first occasion on which he sought payment for overtime was on the 14 th October 2004, I am, nevertheless, satisfied that, given his role in the new venture, it is likely that Mr Tracey worked more than thirty-five hours a week prior to this. Attached to Mr Tracey's letter of the 14 th October 2004 was a statement of "holiday records" and "overtime" dated the 16 th September 04. In correspondence of the 19 th October 2004, Mr Tracey sought payment for "approved over time" which was left with the defendants before his holidays. While questions may arise from (i) a claim, subsequently withdrawn, for overtime for the 19 th October, and (ii) the inclusion of three hours overtime in the schedule for the 16 th September 2004, the day that Mr Tracey was in court, and coincidentally a day on which it is recorded in the diary/logbook that "KT out all day in court", nevertheless, while not clear cut, I am satisfied that the overtime worked was as stated by Mr Tracey.

In summary, on the balance of probabilities, strict adherence to a requirement for prior approval was waived by the parties, at least by implication, Mr Tracey, therefore, is entitled to maintain his claim for overtime. To the extent that emphasis is placed by the defendants on the expression "if required", I am also satisfied that the evidence establishes that Mr Tracey did in fact work 35 hours per week in his time with the defendants. That he did so has not been disputed. I am consequently satisfied as a matter of fact and as a matter of practice, that a minimum of 35 hours a week was required. That Mr Tracey may also have attended his own practice during this period does not alter this conclusion.

(d) Conclusions in Relation to Mr Tracey's Role in the Financial Growth of the Company

Mr Burton and Mr O'Connor had expectations for increased growth in the new business venture following the introduction of Mr Tracey. That they wished to use his name and to pay him monthly payments of €2,000 plus VAT supports this. Mr Tracey's name was considered to be of benefit to the new entity. This is reflected in this contractual term. The defendants rely on the terms in the contract for services and the provisions of the side letter regarding percentage of profits, personal meetings, and professional committee involvement, as providing additional support for their contention that Mr Tracey was obliged to engage in the expansion of the business. Mr Tracey's participation in the preparation of the BS News article provides some support for this. It seems to me that this also shows a desire by Mr Tracey to portray the new company in a positive light in so doing.

I am satisfied that the aspiration of all was that joint participation in the new entity would lead to a considerable expansion of business. It may also be said that it was in Mr Tracey's long-term interest to engage in the expansion of the business, given anticipated participation in profits in the following year. As to Mr Tracey's awareness of financial projections, Mr Burton did not think that the cashflow projection or the specific figure of €80,000 for the first year was discussed with Mr Tracey before he entered into the contract with the company. He believes that Mr O'Connor, whose evidence was that specific sums were spoken of, was mistaken. It is to be recalled that when Mr O'Connor gave evidence, he was ill and on a drug treatment regime for his illness and accepted that his memory had disimproved. Mr Tracey did not recall going through any three-year projections.

While there may have been an aspiration, or indeed expectation, on the part of the defendants of increased business following Mr Tracey's involvement, I am not satisfied that it has been established as a matter of probability that any such aspiration or expectation on the part of the defendants altered the terms of the agreement between them or formed part of the contractual arrangements. To the extent that it is contended that there was an obligation to proactively market the business, I am not satisfied that this was an enforceable term of the agreement. Mr Tracey's name was being used under the contract in what might be described as a passive manner. If it was the intention that Mr Tracey be contractually obliged to more actively engage in business expansion, this could have been achieved as a legal obligation in the framing of the agreement. Nor do I believe that such a term is to be implied into the agreement. To the extent that Mr Tracey may have used the expression " getting bums on seats" or stated that the biggest problem was getting people to do the work that would come in, rather than getting the work, does not alter this conclusion.

I am also of the view that resolution of this dispute is not, in any event, germane to the issues which I have to determine in light of the stated position of the defendants that reasons were not required to terminate the agreement.

(e) Conclusions in Relation to the Termination Notice of the 4 th October 2004

The contract for services provided at para.11 that " the agreed minimum notice required for termination of this contract for services regardless of any circumstances by either party will be 16 weeks". Mr Burton and Mr O'Connor maintain that they were entitled to terminate the contract and that no reason was required.

The chronology of events is as follows:

a. A meeting took place on the 15 th September 2004.

b. The court case proceeded on the 16 th September 2004,

c. Reports of the court case appeared in national newspapers on the 17 th September 2004

d. Mr Tracey went on holidays and did not speak with the defendants until his return on the 4 th October 2004, by which time a decision had been taken to terminate the arrangement.

Mr Burton and Mr O'Connor maintain that when serving the notice of termination they were taking a business decision, unconnected with anything which may have appeared in the newspaper. Yet, despite such contention, the timing and proximity of these events give rise to a coincidence of connection which, on the face of it, is not easily displaced. This is particularly so when no prior discussions regarding performance took place, or no performance review was conducted, such as might have enabled Mr Tracey to address any concerns.

Mr Tracey's evidence is that it became known to him on the 4 th October 2004 when he returned from a two-week holiday that the defendants had interviewed an engineer in his absence. It is not clear by whom he was so informed. There is no independent or direct evidence of this. Mr O'Connor had no recollection of the interview with the engineer on the 5 th September. He accepted a Mr Harrison was eventually employed but also said that they were without a lead engineer for a few months. Mr O'Connor's evidence is that after Mr Tracey was gone, Mr Quigley agreed to work for four and a half days a week and a fifth day when required. Under the acquisition agreement (para. C, 2 (C)) Mr Quigley had agreed to work in the new business as an employee for three years based on a two day week. Mr Quigley's son, also an engineer, who under the acquisition agreement was to be paid a salary of €5,000 per month up to the end of August 2004, at which time he intended to go abroad, also agreed to work on for approximately six months. He added that Mr Burton was on holidays during this period and that he would not have taken such a decision on his own. While Mr Harrison had been interviewed at an earlier time, the evidence of Mr Burton is that he was approached sometime after Mr Tracey's departure, was then interviewed and that he did not commence work until February 2005. Mr O'Connor had no recollection of an earlier interview with an engineer on the 5 th September, which he and Mr Tracey conducted, but agreed that Mr Harrison was eventually employed.

Mr Tracey gave evidence that on the 4 th October, the notice was given to him without any tact and in the presence of two degree-programme engineers. This is disputed by the defendants. The two graduate engineers, Mr Burkett and Mr Kelly, were not called to give evidence. I am satisfied that while they may have been in the office building, having considered the demeanour of the witnesses and the manner in which they gave their evidence, Mr O'Connor and Mr Burton tried to be careful about how to give notice to Mr Tracey. I accept, as a matter of probability, that the two engineers were not in the room at that time. I believe that Mr Tracey was upset by what had happened and in those circumstances that he is mistaken as to their presence in the room is understandable.

I am also satisfied that any difficulties which the defendants may have had with Mr Tracey's performance, as pleaded, or as stated in evidence, were either not expressed to him, or were expressed in a manner which did not make an impression. While it may not have been unreasonable for Mr Tracey to believe that the court case and its reporting played a role in the decision to serve the notice on the 4 th October 2004, there is no evidence that Mr Burton and Mr O'Connor were " got at ". Any suggestion that they were part of a wider conspiracy is not supported by the evidence. I also accept that the manner of Mr Tracey's approach to Mr Burton and Mr O'Connor on 15 th September 2004 when informing them of the impending court case was such as to justify them in harbouring concerns, even though they accepted what Mr Tracey had told them.

To the extent that Mr Tracey contends that he was being replaced as part of a plan, I am not satisfied that he has discharged the onus of proof of establishing the likelihood that a pre-planned replacement engineer was engaged or was to be engaged in such manner. The evidence of Mr Burton and Mr O'Connor, which I accept, is inconsistent with a preplanned replacement at short notice. Nevertheless, I am also satisfied that the resolution of this issue assumes little legal significance if, as submitted by the defendants, the provision of a reason for termination was not required under the contract.

(f) The Events between the 4 th and the 19 th October 2004

Between the 4 th and 19 th October 2004, the relationship between the parties became one of distrust, tension and suspicion. Correspondence became testier. Mr Tracey's attendance at work came under greater scrutiny. His evidence is that, from the 4 th October 2004, he was requested to sign in and out of work.

Indicative of this distrust and tension is the controversy over the theretofore seemingly unimportant FPQ diary or logbook. Having considered the evidence and the demeanour of witnesses, I conclude that stamping of " Approved " in the diary was most likely done on the same day and by the same person; and that it was stamped in the period when it was missed by Ms Lyons. The only reasonable conclusion that the court can draw particularly in light of the entry of the 12 th October 2004, is that, as a matter of probability, Mr Tracey stamped the diary. I am further satisfied that it is most likely that this action was taken by Mr Tracey because of the recording and monitoring of his attendance during the period. The diary was a catalyst for what occurred on the 19 th October 2004. This atmosphere of tension and distrust led to the decision taken by Mr Burton and Mr O'Connor to request Mr Tracey to leave at short notice. Mr Tracey did not react well to being asked to leave and I accept his reaction gave Mr Burton and Mr O'Connor reasonable cause for concern.

I also accept that Mr Burton and Mr O'Connor took action in what they considered to be in the best interests of the business when requesting Mr Tracey to leave. They sought advice as to what they should do in the light of Mr Tracey's reaction. While Mr Tracey denies that he refused to leave, I am satisfied that the stance which he adopted gave rise to a reasonable apprehension that he was not going to leave. On the 20 th October 2004, a letter was written by the defendants' solicitors to Mr Tracey stating that he had refused to leave as a consequence of which his clients were obliged with the greatest reluctance to seek the attendance of the Garda at the premises to request him to do so. There is no evidence that this letter was expressly replied to at that time, although Mr Tracey cannot recall receiving it.

To the extent that Mr Tracey highlights the amended defence as suggesting that he was given seven and a half hours from 2pm and that he did so within that time, I am satisfied that the clear evidence is that he was given much shorter notice of one hour. The pleadings are inconsistent with the evidence.

The wisdom of giving notice of one hour must be questioned. Mr Tracey had been working on a project throughout the morning. Mr Burton and Mr O'Connor may have been at the end of their tethers. It may also be the case that they were concerned about Mr Tracey's reaction. Mr Tracey had personal effects in his office and as a matter of common sense, one hour's notice appears unduly short. There is nothing to suggest that matters had significantly deteriorated during the course of that morning.

Thereafter, however, I am satisfied that Mr Tracey's reaction was as described by Mr Burton and Mr O'Connor such as to lead to the reasonable conclusion that he was not going to leave the premises. Mr Burton and Mr O'Connor became concerned and distressed to the extent that they thought it necessary to seek legal advice, and to eventually summon the gardai. This is supported by the evidence of Ms Lyons, who the court found to be a reliable witness, that Mr Burton and Mr O'Connor were distressed when they returned from the meeting with Mr Tracey. She was not present when gardai arrived but her description of events up to the time that she left is consistent with the description given by Mr O'Connor and Mr Burton. I am also satisfied that Mr Tracey's response precipitated their actions in having the locks changed.

There is a dispute about the time of the arrival of the gardai. The court's assessment of this is somewhat hampered by the absence of the garda witnesses. Mrs Tracey's evidence is that the gardai were already present when she arrived. The defendants' evidence is that they did not arrive until approximately 7pm, that Mr O'Connor and Mr Burton wanted them to attend earlier but they declined as they did not wish to attend during business hours. Mr Tracey sent an email to Mr O'Connor and Mr Burton at 5:49 pm referring to the threat to call gardai. This is said to imply that they were not there at that time. While Mrs Tracey did not disagree with the email, she maintained that the contents referred to an earlier time in the afternoon. She reiterated that she knew what she saw.

To the extent that it is necessary for the court to resolve this issue, I am satisfied, on the balance of probabilities that gardai were present for long periods while Mrs Tracey was present. On one view, given the contents of the email sent by Mr Tracey at 5:49pm, it would seem unlikely that they were there at that time. Another construction is that it was composed in reference to a discussion earlier in time. The email also refers to the carpenters, so it is clear that they were present at that time. A letter composed by Mr Tracey at 9:15 pm, which was handed to Mr O'Connor when Mr and Mrs Tracey were leaving, referred to the witnessing by the gardai and Mrs Tracey of overtime being worked from 5:30 pm to 9:15 pm. Whether they were present when Mrs Tracey arrived or whether they arrived sometime later is not, in my view, a matter of great moment. It is clear that the locks were being changed when she arrived and the gardai were present for long periods while she was there. They did not leave until Mr and Mrs Tracey left. I am also satisfied that one of them, temporarily and mistakenly took possession of Mr Tracey's personal phone, but later returned it. It is not surprising that Mrs Tracey was distressed. The events of the afternoon and evening were stressful for all.

On the balance of probabilities, I find that only Mr Burton, Mr O'Connor and Mr Tracey were in Mr Tracey's office when he was first approached. Ms Lyons was not in Mr Tracey's office and could not therefore give direct evidence in relation to who was in the room, but as a witness she did not attempt to embellish her evidence and I am satisfied that it is largely supportive of Mr O'Connor and Mr Burton. There is a conflict of evidence as to whether Mr Tracey was given the letter dated the 14 th October 2004. Mr Tracey maintains that he was not given that letter. Mr O'Connor and Mr Burton's evidence is that it was given to Mr Tracey at 2pm, and a note to that effect was handwritten on the letter. Regardless, I am satisfied that it is clear on the evidence that he was given one hour's notice.

While some junior members of staff were requested to leave for a period at around lunchtime, it is unclear when they returned. I am satisfied, however, that Mr Kelly and Mr Burkett, were in the building later that afternoon. They did not give evidence and what they perceived, saw, or deduced from what they saw, are matters of speculation.

Considerable focus has been placed on allegations that Mr Tracey destroyed or attempted to destroy files. He vehemently denies this. No witness gave evidence of seeing Mr Tracey engaging in such alleged activity. Evidence was given by Mr O'Connor, Mr Burton, Mr Alan O'Connor and Ms Lyons of what they witnessed. The timing of Ms Lyons' departure from the office is at odds with Mr Alan O'Connor's evidence that she was present that evening. I am satisfied that he is mistaken that Ms Lyons was there on the night of 19 th October after Mr Tracey left. This is not surprising given the passage of time between the events and the date on which he prepared his written statement on the 14 th June 2023. Reasonably contemporaneous correspondence, in particular Mr Walley's letter of the 20 th October 2004, indicates an immediate complaint.

(g) Summary and Findings in Relation to the Events of 19 th October 2004

Having considered the evidence, the demeanour of witnesses and the surrounding and circumstantial evidence, I make the following findings:

a. Tension had increased between the 4 th and 19 th October 2024. The diary incident was a significant catalyst in the defendant's decision to request Mr Tracey to leave at such short notice. The events of the previous two weeks led to a rise in tensions. The disappearance, reappearance and stamping of the diary was the immediate crystallising event which caused Mr Burton and Mr O'Connor to determine that Mr Tracey should be requested to leave the premises on one hours' notice.

b. Mr Tracey was responsible for the temporary absence of the diary and for certain entries and stamping which was placed across the diary. It is difficult to see how it was in anyone else's interest to make those entries or to impress the stamp. The diary was really of no significance in itself and indeed no entries appeared after the 19 th October 2004.

c. The initial intention of Mr O'Connor and Mr Burton was to request Mr Tracey to leave early in the morning. Unbeknownst to them, he was at a meeting and their approach was deferred until after lunch.

d. Mr Tracey was given one hour's notice to leave the premises at approximately 2pm.

e. Despite a plea in the amended defence that Mr Tracey was given seven and half hours' notice, it is clear beyond discussion that he was given one hour's notice and to the extent that the amended defence suggests the contrary, it is clearly mistaken.

f. No persons other than Mr O'Connor, Mr Burton and Mr Tracey were present when Mr Tracey was first approached and given the letter at 2 pm.

g. Mr Tracey's effective response was one of refusal to leave and to stand on what he perceived to be his rights. I accept the evidence of Mr Burton and Mr O'Connor regarding their perception of Mr Tracey's response to their request for him to leave and that this caused them distress.

h. Because of the stance taken by Mr Tracey, Mr O'Connor and Mr Burton decided to seek legal advice.

i. Mr Burton and Mr O'Connor requested staff members to remain in the conference room while they were visiting their solicitor.

j. Mr Burton and Mr O'Connor took advice. They returned to the office and once again requested Mr Tracey to leave but he refused to do so. They also advised him that they would call the gardai, which he considered to be a threat, as evidenced by his email. I am satisfied that the initial response of the gardai was that they would not attend.

k. Ultimately a decision was made to again contact the gardai by telephone. I am satisfied that this occurred after 5:47 pm.

l. It is likely that the Gardai did not arrive before 6 pm. It is likely that they were not there when Mrs Tracey arrived, but it is clear that they were there for a lengthy period while she was present.

m. Employees were aware, or became aware, that Mr Tracey had been requested to leave at short notice. Those who were present in the conference room with Mr O'Connor and Mr Burton were at that time aware of what was taking place. Members of staff were present in the building during the late afternoon and evening. These included Ms Lyons, up the time she left at 4:30 pm, and Mr Alan O'Connor, Mr Cunningham and Ms O'Flaherty, all of whom were in the conference room and witnessed Mr and Mrs Tracey leaving at 9:30 pm.

n. The two junior engineers working with Mr Tracey, Mr Kelly and Mr Burkett, were requested to leave for two hours at lunchtime. While they were not witnesses to the initial contact with Mr Tracey or the handing of the letter to him, they were on the premises later that afternoon. They visited Mr Tracey in his office sometime later. I accept that they were present for part of the time that Mrs Tracey was on the premises. They were not called as witnesses and thus there is no direct evidence as to what they saw or heard, particularly in the context of matters as they developed following the arrival of the gardai.

o. Mr Tracey's personal phone was taken in error by the gardai and subsequently returned to him.

p. On leaving after 9:15pm, Mr Tracey handed a time stamped letter to Mr O'Connor in Mr Burton's presence.

q. While giving one hour's notice was unwise, if not unreasonable, the seeking of legal advice and seeking the assistance of the gardai was not unreasonable in the light of the events as they unfolded.

I do not find it necessary to make a finding on the issue of alleged destruction of documents in order decide on the legal issues. First, any contra claim that may have been made or intimated in correspondence regarding the value of alleged losses sustained by the defendants (suggested to have been €23,619.20) has not been pursued by way of counterclaim; no counterclaim is pleaded in the amended defence, or from what the court can ascertain, pleaded at any stage. Second, the die for the cause of Mr Tracey's claimed humiliation and embarrassment had already been cast earlier that afternoon and evening. Third, considering the parameters of the legal claims made in the proceedings, much of what is alleged goes no further than to provide additional background evidence of the fraught and uneasy circumstances which pertained on the evening and night in question, of which there is ample other evidence.

The alleged unlawfulness of the defendants' actions on the 19 th October 2004 will be considered below, but before doing so I address the court's conclusions in relation to the medical evidence and the injuries sustained by Mr Tracey as alleged.

Discussion and Conclusions on the Medical Evidence

(a) Medical Diagnosis

I accept that that the events of the October 2004 and the loss of his job caused Mr Tracey stress and upset. Prof Corvin described Mr Tracey's symptoms as being consistent with a major depressive episode of mild severity. In arriving at his conclusion, he placed emphasis on Mr Tracey's capacity to function at that time. He did not, however, have the benefit of a contemporaneous assessment of Mr Tracey, as had Dr Lombard. On the other hand, Dr Lombard did not prepare a detailed forensic report. The difference in assessment appears to be one of degree. Nevertheless, I accept the evidence of Dr Lombard, who had been Mr Tracey's general practitioner for many years, that when Mr Tracey presented to him in March 2005, and again in October 2005, he was experiencing depression of moderate degree of severity. Dr Lombard, as a responsible general practitioner, adopted a wait-and-see policy before ultimately prescribing Lexapro at a low dose, which he subsequently increased. Dr Lombard also indicated that the standard repeat prescription for Lexapro was for approximately 6 months. The final prescription for three months was in the autumn of 2006. This would have expired or ceased, therefore, no later than the end of February/March 2007. There is no evidence that Mr Tracey required further treatment or intervention after that.

Ms Dennison gave evidence that as of 2006/2007, Mr Tracey was suffering from the signs and symptoms of post-traumatic stress disorder. Prof Corvin's opinion is that, at the time of his examination in 2019, there was no evidence of the typical signs of post-traumatic stress disorder. He also expressed the opinion that based on the information supplied to him, Mr Tracey's symptoms had preceded the event in 2004, a proposition contested by Mr Tracey. Although I have taken into consideration the views expressed by Ms Dennison, she is not a medical practitioner and was focused on assisting in improving Mr Tracey's well-being. In the circumstances, the court is satisfied, on the balance of probabilities, that while Mr Tracey was suffering from moderate depression, his condition did not meet the criteria for a medical diagnosis of post-traumatic stress disorder.

In light of the court's conclusion as to the nature and duration of Mr Tracey's illness, I am satisfied that it not necessary to determine whether Mr Tracey is suffering from the paranoid condition suggested. Prof Corvin did not carry out a clinical assessment. He was being asked for a medicolegal report. His evidence was not one of diagnosis, rather an opinion on diagnosis.

(b) Causation

The court must now consider causation. Mr Tracey did not present to his general practitioner prior to March 2005. It is also the case that medical assistance was not sought for some five months after the events giving rise to the claim in these proceedings. There is no evidence that his depression, or at least a condition requiring medical assistance and intervention, continued beyond 2006/2007. While the evidence indicates that Mr Tracey did not inform Dr Lombard of other potential stressors, I am satisfied that there were other stressors in Mr Tracey's life at that time which contributed to his depression.

Further, while it would be wrong for this court to express any opinion on the merits of the other claims brought by Mr Tracey, nevertheless, that the pleadings in other actions contain claims for injuries and damages (including loss of earnings claims of similar, if not identical nature) to those made in this case simply cannot be ignored. At minimum, where duplication of a claim occurs, causation becomes muddied. While Mr Tracey maintained that the termination of the agreement was the catalyst for the termination of his working life, I am again satisfied that the events of October 2004, were but one of many stressors which existed at that time and cannot be responsible for all of Mr Tracey's pleaded sequelae. Whether this gives rise to a cause of action is discussed later.

Assessment of the Claims in Light of the Court's Findings

No claim in defamation arises. No claim of assault is pleaded. Fraud or deceit are not pleaded or alleged. The proceedings are based on breach of contract, negligence and conversion.

Conclusion in Respect of the Legal Effect of the Notice of Termination

(a) No Reason for Termination

Clause 11 of the contract provides for service of notice of termination, regardless of any circumstances. On the face of it, the term did not expressly provide that a reason was required for service of the notice of termination. In determining the proper meaning of this clause, the evidence of the parties is of significance. The evidence of both Mr Burton and Mr O'Connor is that they understood that no reason was required for termination of the contract. Mr Tracey disagrees and contends that a reason for termination was required under the contract. Mr Tracey's evidence on this includes the following exchange when he was questioned by counsel for the defendants and the court on day three of the trial:

"Q. There was the right to terminate the contract?

A. They what.

Q. There was a right to terminate the contract by you or by them, for any reason or for none?

A. Correct, correct, that's correct. In clause of the contract, it states that the contract may be terminated without -- I'll just get the contract and read it out.

Q. There's no need, we're agreed?

A. Yes, we're agreed that -- I can't remember the exact wording, but...

Q. JUDGE: It says that: "The ‑‑

A. Yes, yes, Judge.

Q. JUDGE: ‑‑ agreed minimum notice required for termination of this contract for services, regardless of any circumstances ‑‑

A. Yes.

Q. JUDGE: ‑‑ by either party, would be 16 weeks."?

A. Correct, Judge. That's the way it was.

Q. JUDGE: So was it your understanding, I'm just trying to follow from Mr Giblin's question here ‑‑

A. Yes.

Q. JUDGE: ‑‑ was it your understanding that either party could terminate the contract.

A. Correct.

Q. JUDGE: ‑‑ for no reason ‑‑ for any reason or for no reason?

A. Yes.

Q. JUDGE: But 16 weeks' notice had to be given?

A. What I'm saying ‑‑ no, they could terminate it -- I want to see the wording again and I'll tell you exactly what it means.

Q. JUDGE: I have it marked in my copy here?

A. Yes, Judge.

Q. JUDGE: You can forget about my markings if you see it?

A. I think it's a kind of a: "The minimum agreed in notice required for terminated contract, regardless of any circumstance ..." ‑‑ okay? That means regardless. It doesn't mention giving a reason. It means regardless of any circumstance, say, in the event that I fell ill or something like that, that I or they could terminate the contract within 16 weeks, you know.

Q. JUDGE: Very good?

A. But it doesn't say that they didn't have to give a reason".

Further insight in relation to Mr Tracey's view on the effect of the notice of termination is to be gleaned from a consideration, inter alia , of the manner in which he addressed the events of the 19 th October 2004, and his contention that the " 16 week notice in accordance with the contract given on 4 th October 2004 was broken resulting in breach of contract." This is also reflected in his evidence concerning the atmosphere in the office before the 19 th October 2004:

" Fine. I accepted the 16 weeks. I had 16 weeks' notice on 1 (sic) October to get myself into new work, which is plenty-enough time-that's why the 16 weeks was negotiated, to allow me set up in a new position of the same, you know, of ... well, the position of --to a senior position, you know? It gave me that leeway to do it, 16 weeks. And 16 weeks, on 4 th October, to me, was plenty of time to do that. But then, on 19 th October, I was told one hour, and not only was I told one hour, the gardai were brought to the premises to escort me off the premises... in a civil matter".

In his replying submissions Mr Tracey refers to the contract being abruptly terminated on the 19 th October 2004 without mutual agreement, reason or due notice; and that:

"This 16 weeks' notice was agreed that all parties on 4 October 2004 and on 19 October 2004 that agreement was abruptly breached by the defendants."

Having regard to the wording of clause 11 of the contract for services ( "regardless of any circumstances" ) and the evidence of the parties I am satisfied that as matter of legal construction, subject to consideration of the issue of good faith which has been raised by Mr Tracey, the contract for services could be terminated by either party for any reason or for no reason. In my view it follows that if no reason was required, no explanation was required.

(b) Good Faith

Mr Tracey submits that he entered into the contract in the expectation that it would be performed according to its terms and that good faith, a principle recognised in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 , applies. There, Lord Bingham recognised " a principle of fair and open dealing". Mr Tracey advances this as authority which supports a generally applicable proposition.

Interfoto concerned the enforcement of conditions which it was considered were not fairly brought to the attention of one of the contracting parties. The finding of the court, as described in the headnote, is as follows:

" Where clauses incorporated into a contract contained a particularly onerous or unusual condition, the party seeking to enforce that condition had to show that it had been brought fairly and reasonably to the attention of the other party; that, since the plaintiffs had done nothing to draw the defendants' attention to condition 2, the condition ( per Dillon L.J.) never became a part of the contract or ( per Bingham L.J.) the defendants were relieved from liability under the clause and that, therefore, the plaintiffs could only recover a holding fee assessed on the basis of quantum meruit."

Analysis of Lord Bingham's observations suggest that it is not an open-ended proposition applicable in any case. He stated at p. 439:

" In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith. This does not simply mean that they should not deceive each other, a principle which any legal system must recognise; its effect is perhaps most aptly conveyed by such metaphorical colloquialisms as "playing fair," "coming clean" or "putting one's cards face upwards on the table." It is in essence a principle of fair and open dealing. In such a forum it might, I think, be held on the facts of this case that the plaintiffs were under a duty in all fairness to draw the defendants' attention specifically to the high price payable if the transparencies were not returned in time and, when the 14 days had expired, to point out to the defendants the high cost of continued failure to return them.

English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness. Many examples could be given. Thus, equity has intervened to strike down unconscionable bargains. Parliament has stepped in to regulate the imposition of exemption clauses and the form of certain hire-purchase agreements. The common law also has made its contribution, by holding that certain classes of contract require the utmost good faith, by treating as irrecoverable what purport to be agreed estimates of damage but are in truth a disguised penalty for breach, and in many other ways.

The well known cases on sufficiency of notice are in my view properly to be read in this context. At one level they are concerned with a question of pure contractual analysis, whether one party has done enough to give the other notice of the incorporation of a term in the contract. At another level they are concerned with a somewhat different question, whether it would in all the circumstances be fair (or reasonable) to hold a party bound by any conditions or by a particular condition of an unusual and stringent nature." (Emphasis added)

At p. 445, he added:-

"The tendency of the English authorities has, I think, been to look at the nature of the transaction in question and the character of the parties to it; to consider what notice the party alleged to be bound was given of the particular condition said to bind him; and to resolve whether in all the circumstances it is fair to hold him bound by the condition in question. This may yield a result not very different from the civil law principle of good faith, at any rate so far as the formation of the contract is concerned".

Good faith obligations as implied terms are also addressed in Clark, Contract Law in Ireland (9 th edn, Round Hall 2022), at paragraph 6-27 et seq. The author describes such obligations as isolated instances of cases where it has been held that an express contract is the subject of implied duty to act in good faith. Reference is made to Dakota Packaging Ltd v. Wyeth Medica Ireland (unreported, delivered the 10 th October 2003) as being the clearest Irish case which supports the view that powers of termination in a private setting may also need to be exercised by reference to a reasonable notice standard. Another instance is where there may be unconscionable conduct.

In Flynn v Breccia, [2017] IECA 74 , in the context of a shareholder's agreement, Finlay Geoghegan J. stated:

"I accept the submission that there is no general principle of good faith and fair dealing in Irish contract law. There are, of course, certain types of agreements and contracts to which a duty of good faith applies, such as in a partnership agreement or the principle of uberrima fides in insurance contracts." (para. 61)

No specific authority has been advanced to support the proposition that the principle of good faith should be given a wider application and alter the court's interpretation and effect of clause 11. The minimum notice period provided at clause 11 is clear. The parties were aware of the term. While its meaning and effect are now disputed by Mr Tracey, to the extent that he contends that he was entitled to a reason for termination, it is difficult to discern some factor such as unconscionability, dominance or inequality in the formation of the contract which might alter the court's conclusion. That there may be a difference of opinion regarding its interpretation does not, in my view, advance matters further, particularly having regard to the independence and status of the parties at the time of the formation of the contract. I am not satisfied, therefore, that any recognised principle of good faith has been identified, or applies, which alters the court's interpretation of clause 11 of the contract for services.

To the extent of the expression "good faith" is employed by Mr Tracey as describing the manner in which the contract was terminated, this appears to me to involve a consideration of whether the proper interpretation of the term meant that it was necessary to provide a reason for termination. I have found, as a matter of interpretation, that the provision of a reason was not required. I am also not satisfied that such a term is to be implied and in so concluding I have taken into consideration the legal authorities on implied terms which are considered in more detail below.

While Mr O'Connor and Mr Burton differ on the time the letter of the 4 th October 2004 was delivered to Mr Tracey, there is no dispute that he received it. To the extent that Mr Tracey contends that the letter of the 4 th October was written on FPQ Consulting Engineers and not on the letterhead of " Burton and O'Connor Ltd ", the evidence is clear that FPQ Consulting Engineers was registered as a business name by Burton and O'Connor Ltd. I am satisfied that no issue arises on this account which might detract from the effectiveness of this notice. No such issue was raised at the time and, as a matter of fact, post termination invoices were addressed by Mr Tracey to FPQ Consulting Engineers.

In conclusion, I find that the notice of termination of 4 th October 2004 brought the contract for services to an end. I am not satisfied, therefore, that Mr Tracey has discharged the onus of proving that a breach of contract occurred by reason of (a) the fact of, or (b), the manner of service of the notice of termination on the 4 th October 2004.

Discussion and Conclusion in Relation to the Events of the 19 th October 2004, Notice Period and Entitlement to Work on the Premises

Mr Tracey submits that the breach of contract by the defendants was " initiated by letter of the 4 th October 2004 and concluded by a letter dated 19 October 2004 ". He emphasises the absence of reasons afforded on either occasion. He contends that because of the breach by the defendants of their obligations in respect of the notice period on the 19 th October 2004, the contract extended to the 1 st March 2005; and that there was an express term of the agreement that he would be offered a directorship after 12 months i.e. on the 1 st March 2005. On page 27 of his replying submissions, Mr Tracey states " I was working my 16 weeks' notice as agreed from 4 October 2004 and this was terminated by the defendants at 7.5 hours' notice on 19 October 2004". The basis for his claim is also summarised on page 45 at paras. 20 and 21 of the same submissions as follows:

"20. This is not about a straight breach of contract as counsel is trying to portray. This is where as a highly qualified and professional engineer I had been exposed to the industry in a national engineering journal as the head of the practice and two weeks later asked to leave without a reason at 7.5 hours, with Gardaí brought into the office, locksmiths changing door locks, and all done in the presence of junior engineers and company members. I was treated like a criminal. This had huge psychological effects with subsequent health issues and caused irreversible damage to my professional reputation not allowing me to get work again the industry. My medical experts have provided reports on same.

The duty of care owed to me by the defendants was seriously breached by them. The introduction of Gardaí into a civil matter and in the view of the company staff including junior engineers who worked with me was negligent. I was their external examiner at the Dublin Institution of Technology (now TUD)."

While reference is here made to the duty of care, which suggests a claim in negligence, I now address arguments based on contract.

It is submitted by the defendants that the contract is the antithesis of an employment contract where an employer provides work up to and including the notice period. It is also expressly contended that the company should not have to provide work for Mr Tracey at its premises for the duration of the notice period.

Reliance is placed on evidence tendered by Mr Tracey that the purpose of the 16 week notice period was to allow him to set up in a similar position elsewhere; and it is therefore submitted that such purpose is inconsistent with the requirement to keep him fully occupied for sixteen weeks " particularly if that suited neither party". It is argued, therefore, that the defendants' obligations were limited to:

i. payment €2,000 per month for the use of Mr Tracey's name in connection with the company,

ii. payment for hours worked during the notice period and

iii. amounts owing from any prior months.

An alternative argument is advanced that implied into the contract is a provision entitling the parties to make such arrangements as were expedient during the notice period, with an obligation to pay any amounts due for that period.

In their submissions the defendants rely on the Hoffman formulation in ICS v West Bromwich BS [1997] 1 WLR, which was approved by the Supreme Court in Analog Devices Zurich Insurance [2005] 1 IR 274 and ICDL v European Computer Driving Licence Foundation [2012] 3 IR 327. Reference is also made to dicta of O'Donnell J (as he then was) in Law Society of Ireland v MIBI [2017] IESC 31 as to the proper approach to the interpretation of a legal agreement:

"... the court must consider not just the words used, but also the specific context, the broader context, the background law, any prior agreements, the other terms of this agreement, the provisions drafted at the same time and forming part of the same transaction, and what might be described as the logic, commercial or otherwise, of the agreement....

He continued: -

"the reasonable person who is the guide to the interpretation of the agreement is expected not merely to possess linguistic skills but must also have, or acquire, a sympathetic understanding of the commercial or practical context in which the agreement was meant to operate, and perhaps even an understanding of the many ways in which even written, formal and legal communication fall short of the standard clarity and precision set out by the early editions of Fowler's Modern English Usage". (para. 12)

Reliance is also placed on dicta of Finlay Geoghegan J in Flynn v. Breccia , where she approved the reasoning of the trial judge that there are at least two situations where the courts, independently of statutory requirement, may imply terms. The first is based on principles outlined in The Moorcock, where a term not expressly agreed may be inferred on the basis of the presumed intention of the parties. This was explained in Shirlaw v Southern Foundries (1926) Ltd. [1939] 2 KB 206 at 207, that "[p]rima facie, that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying". The other variety of cases are those in which a contractual term is implied, not on the basis of the intention of the parties, but derived from the nature of the contract itself. Terms must not merely be reasonable, but also necessary. Further, a term cannot be implied if it is inconsistent with the express wording of the contract, and it may be difficult to infer a term where it cannot be formulated with reasonable precision.

Applying those legal principles, counsel for the defendants submits that in a contract such as this which governs, inter alia , a potentially mutually beneficial profit-sharing arrangement, both the unstated intention of each party and the expectation of any reasonable bystander is that during the notice period the company could make such arrangements regarding work as were expedient. It is submitted that they should not have to provide work for the plaintiff at its premises for the duration of the notice period. The notice period would serve its purpose to allow the wind down of the commercial relationship as suited by keeping the public association for the period and paying the standing charge of €2,000. The defendants also contend that Mr Tracey effectively accepted this when giving evidence. They point to extracts from day two of the transcript, (page 64, lines 14-30), being part of Mr Tracey's answers to questions which the court posed (commencing on page 63, line 32): -

"JUDGE: Was there any discussion in the run up to the written agreement was there any discussion between yourself and the defendants about you trying to bring business in?

A. Obviously when the contract was signed and when the ... were ... together the whole purpose of the business was to develop the business but from a start-up situation it doesn't happen that way. It takes time. Inevitably, as I said, work would come in, but you have to crawl before you walk in the business, like any profession.

JUDGE: And just before we leave that, again I just want --

A. But I couldn't make any promise because --

Q. JUDGE: You couldn't make promises?

A. -- how could I make promises, Judge, in all fairness?

Q. JUDGE: But again, just going back to clause, Mr Giblin, again I just want to understand the thinking behind all of this?

A. Yes. Yes.

Q. JUDGE: Clause 4 deals with headed paper and company stationery?

A. Yes.

Q. JUDGE: And it says, "The name and professional qualifications of Mr Kevin Tracey will appear on headed paper and the company stationery as an associate"?

A. Yes. Yes.

Q. JUDGE: "And a standing charge of €2,000 plus VAT will be charged per month for 14 this service"?

A. Yes. Yes.

Q. JUDGE: And it goes on to say payment will be prompt.

A. Yes. Yes.

Q. JUDGE: What did you understand by the inclusion of that clause in the agreement?

A. I understood that so long as the contract for services was in situ, if that's the right word --

Q. JUDGE: Yes?

A. -- my professional name and qualifications were used by the company as part of my contract.

Q. JUDGE: Yes. Yes?

A. So, in other words, if the 16 weeks' notice was -- stated in the contract ceased, obviously my name would come off the headed paper.

Q. JUDGE: Yes?

A. You know, you wouldn't be on the headed paper and stationery then. In other words, the company would be not in a position to use my goodwill.

Q. JUDGE: I understand but I'm just trying to understand what the clause actually means, what the full implications of the clause are?

A. Yes.

Q. JUDGE: And according to the clause a standing charge of €2,000 plus VAT will be charged per month for this service?

A Yes. Yes. Yes.

Q. JUDGE: The service as I understand it being the name and professional qualifications of you would appear on headed paper and company stationery as an associate?

A. Yes.

Q. JUDGE: You were getting paid for the use of your name on the notepaper?

A. Correct. That was offered to me by the defendants, yes.

Q. JUDGE: I, see?

A. Yes.

Q. JUDGE: And was that with a view to perhaps that if your name was on the headed notepaper, it might attract some more business in?

A. Yes. As I said, Judge, you see, the reason for putting my name on was that I was a fellow of the Association of Consulting Engineers of Ireland. All right?

Counsel for the defendants therefore contends that the case Mr Tracey wishes to make requires the implication of a term that work would be provided to him at the company premises for the duration of the notice period; and that such a term would run contrary to para. 6 of the contract which clearly provides that the hours to be worked are those that the company requires.

Mr Tracey has not engaged in any significant way with these legal arguments or the defence analysis of the authorities. That he has not so engaged means that any potential legal arguments to the contrary have not been articulated. Mr Tracey maintains that he ought to be put in the position he would have been in had the breach of contract not occurred and that the actions of the defendants in requiring him to leave constituted a breach of contract.

There appear to be two aspects implicit in Mr Tracey's contention. First, that he is entitled to work out his notice period and second that he is entitled to do so at the defendants' premises.

If this contract had been a contract of employment within the meaning of the Minimum Notice and Terms of Employment Act, it is arguable (without the court so concluding) that Mr Tracey would be entitled to continue to work during the notice period. Support for this proposition is to be found in Meenan's Employment Law (2 nd edn Round Hall 2023), paras. [19-83] to [19-84]:

" Section C. - Statutory Notice

Waiver of Notice or Pay in Lieu of Notice.

19-83 On termination of employment, an employer or an employee may waive their right to notice or an employee may accept payment in lieu of notice. However, both parties must agree to such an arrangement. Failing that, an employee is entitled to stay on and work during the notice period, although the practicalities are that there may be no work for the employee, and indeed it is usually beneficial for the employee to receive payment in lieu of notice, as the sum may be treated as a termination payment."

We are not here concerned with a contract of employment, however. In determining whether such a term or terms may be implied into the arrangement under consideration, it is instructive, in the first instance, to examine the express terms of the agreement.

The fundamental obligation of Mr Tracey under the contract was that which is contained at clause 3 - to provide professional services and to advise on technical services for the Mechanical and Engineering Building Services Project work within that department of FPQ. It is reasonable to conclude that, had Mr Tracey served notice , the expectation of the defendants was that, if required to do so , he would continue to provide his services during the notice period. If not an express term, then I am satisfied that this is implied as a necessary and reasonable term given the nature of the agreement. In my view, however, it does not follow that he was entitled to remain at work if he was not required to do so, particularly where, I am satisfied, any obligation which the defendants may have had under the agreement in respect of the notice period could be discharged by making a payment in lieu of notice, where his services were no longer required.

But even if I am incorrect in this conclusion, further and different considerations apply when determining where that work should be done. Unlike with the contract of employment, the contract for services did not specify that the place of work would be at the defendants' premise at Amiens St.

This contract was an arrangement between professionals. When the nature and type of the contract and its express terms are considered, it is difficult to conclude that it would be proper, reasonable or necessary to imply a term entitling, or for that matter, forcing Mr Tracey to remain on the premises to work out his notice period regardless of any circumstances; and particularly if their business relationship became fraught with tension and distrust. The nature and terms of agreement do not require the implication of such a term. This was a somewhat unique business relationship. It was intended to benefit all parties engaged in this venture. There is force in the defendants' submission that , having regard to the provisions of the contract, and the context in which it was agreed, it was in the nature of the commercial retainer in which the plaintiff was to be paid a flat rate of €2,000 per month for allowing his name to be used in connection with the company's activities, by which he would share in any profits generated by his efforts for the company, in addition to payment for hours worked. To imply a term which might result in a detrimental state of affairs for one or both parties would be to detract from that goal and objective and, in my opinion, would be neither reasonable nor necessary.

I have addressed below at paras. 219 et seq the argument made by the defendants that a proper interpretation of the contract means that the company was not required to provide Mr Tracey 35, or any hours a week, if the need or desire did not arise during the notice period. For reasons expressed later in this judgment, I believe that the reasonable anticipation and expectation of the parties, as borne out by the evidence, is that 35 weeks work would be provided during the notice period.

I also find that any obligation which the defendants may have had to Mr Tracey regarding his notice period, was capable of being satisfied by paying any fees or income which he would have received had he worked out the remainder of the notice period. In essence, payment in lieu of notice.

I am therefore satisfied that by requiring Mr Tracey to cease working before the expiry of his notice period, liability of the defendants to Mr Tracey was to pay him the sum or sums due in respect of the unworked and unpaid part of the notice period.

Finally, on this point, I have determined that the contract came to an end when notice of termination was served on the 4 th October 2004. I am not persuaded, and no authority has been opened to the court to support the proposition, that what happened on the 19 th October 2004 resulted in the retrospective invalidation of an otherwise valid notice of termination. Save for their obligation to discharge outstanding fees as may be due in respect of invoices submitted, I am not satisfied that a breach of contract has been otherwise demonstrated.

Claim for Injury, Distress and Damage to Reputation Arising from the Breach of Contract

Mr Tracey submits that on the 19 th October 2004 he was in shock as a result of the actions of the defendants. He contends that he is entitled to damages for mental distress caused by the physical consequences of the breach of contract, and in this regard relies on Watts v Morrow [1991] 1 WLR 1421 . The breach of contract has had huge detrimental effects on his health, his professional career, his emotional and financial well-being and lifestyle, with resulting effects on his family. I proceed to deal with this contention on the basis that I am incorrect in my conclusion that, save for their obligation to discharge outstanding fees as may be due in respect of invoices submitted, that no breach of contract has been otherwise demonstrated.

The defendants submit that this claim is not sustainable as a matter of law. They rely, inter alia , on Murray v Budds [2017] IESC 4 . There, the court was concerned with a claim for damages for mental distress rather than more significant psychiatric injury. Denham C.J. approved the following dicta of Lord Loreburn in Addis v. Gramaphone Co. Ltd . [1909] AC 488 :

" If there be a dismissal without notice the employer must pay an indemnity; but that indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment.' (Per Lord Loreburn LC) There are three well-known exceptions to the general rule applicable to the measure of damages for breach of contract, namely, actions against a banker for refusing to pay a customer's cheque when he has in his hands funds of the customers to meet it, actions for breach of promise of marriage and actions like that in the Flureau v Thornhill (1776) 2 WBI 1078 where the vendor of real estate, without any fault on his part, fails to make title. I know of none other."

Lord Atkinson added:

"In many other cases of breach of contract there may be circumstances of malice, fraud, defamation or violence which would sustain an action of tort as an alternate remedy to an action for breach of contract. If one should select the former mode of redress, he may no doubt recover exemplary damages, or what is sometimes styled vindictive damages; but if he should seek to choose redress in the form of an action for breach of contract, he lets in all the consequences of that form of action; Thorpe v Thorpe (1832) 2 B & AD 580. One of these consequences is, I think, this: that he is to be paid adequate compensation in money for the loss of that which he would have received had his contract been kept, and no more."

The defendants contend that a ny other exception, such as contracts to provide "play or relaxation peace of mind or freedom from molestation damages will be awarded the fruits of the contract is not provided or if the contrary result is procured instead", do not arise for consideration. Nor does this case fall within the jurisprudence on bullying - a claim which is not made.

In Watts, a decision on which Mr Tracey relies, the court was concerned with an action for damages brought against a surveyor arising from a negligent survey report prepared in the course of the acquisition of a property and on which the plaintiffs had relied. The trial judge awarded damages which included damages for stress and inconvenience. On appeal, Gibson L.J. held as follows:

" As to the law, it is, in my judgment, clear that the plaintiffs were not entitled to recover damages for mental distress not caused by physical discomfort or inconvenience resulting from the breach of contract. It is true that in Perry, Lord Denning justified the award of damages for anxiety, worry and distress (i.e. 'modest compensation') by reference to the holiday cases of Jarvis and Jackson and to Heywood v. Wellers [1976] QB 446 , a solicitor's case. I do not, however, accept that Perry is authority for that proposition. It is, I think, clear that in that case the award of damages (which was upheld) was "vexation, that is a discomfort and so on suffered by the plaintiff as a result of having to live for a lengthy period in a defective house which for one reason or another was not repaired over the period between the acquisition by the plaintiff and the date of trial."

Emphasis was placed by Gibson L.J. on the fact that in some of the authorities damages were awarded for disappointment arising from a breach of a contract connected with a holiday or a contract to provide entertainment and enjoyment. He held that the plaintiff was only entitled to damages in respect of physical discomfort experienced by them when repairs were being carried out.

Bingham L.J. stated as follows:

" A contract breaker is not in general liable for any distress, frustration, anxiety displeasure or vexation tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.

But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case, it would be defective. A contract to survey the condition of the house for a prospective purchaser does not, however, fall within this exceptional category.

In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and the mental suffering directly related to that inconvenience and discomfort. If those effects are foreseeably suffered during a period when defects are repaired, I am prepared to accept that they sound in damages even though the costs of the repairs are not recoverable as such. But I also agree that awards should be restrained, and that the awards in this case far exceeded a reasonable award for the injuries shown to have been suffered...".

It does not appear to me that dicta in Watts assists Mr Tracey. The following extract from McDermott , Contract Law (2 nd edn, Butterworths 2001) paras. 22.57 and 22.58, and referred to in Murray , is apposite. The author observed:

" Many factors explain the courts restrictive approach to non-pecuniary losses. The Addis decision reflects the individualist orientation of traditional contract law under which contracts are impersonal relationships, concerned primarily with economic exchange, and do not typically involve other elements of the parties' personalities. It also reflects an historical desire not to restrict unduly the ability of employers to dismiss employees and a mistrust of exemplary damages (which appeared to be what the plaintiff was seeking in Addis). In Baltic Shipping v Dixon [1993] 176 CLR 344, Mason C.J. observed that: -

"The conceptual policy foundations of the general rule are by no means clear. It seems to rest on the view that damages for breach of contract are in essence compensatory and that they are confined to the award of that sum of money which will put the injured party in the financial position the party would have been had the breach of contract not taken place.""

See now also McDermott and McDermott, Contract Law (2 nd edn, Bloomsbury Professional 2017) at paras. 23.75-23.76, where the rule in Addis v Gramophone [1909] AC 488 is discussed. The authors note, at paragraph 23.79, that the general rule is that damages are not recoverable in contract law for injury to reputation, save in some exceptional circumstances which include a banker's refusal to honour a cheque, contracts involving advertising or publicity or where there is a breach of an implied duty of trust and confidence in a contract of employment, during the course of the employment, as opposed to when it is terminated, the limitations of which rule are discussed at paragraph 23.85. It is also clear that such damages may be awarded in the context of domestic building contracts, or where defects and buildings might arise and inconvenience occasioned reason of the acquisition or renovation of that domestic, or perhaps in consumer type contracts. They also address what appeared to be a number of conflicting authorities on this issue.

While the above jurisprudence may not constitute an exhaustive list of all circumstances in which damages for distress as a result of breach of contract might be recoverable, it seems to me that of importance is to once again consider the object of the contract, being a contract for services, rather than a contract of employment; and one which was made between professional people. It is difficult to see how a claim for psychiatric injury or mental illness consequent on a suggested breach of such contract could have been within the reasonable anticipation and contemplation of the parties when the entered into the agreement. To that extent, I am satisfied that, although subject to academic commentary and discussion, Murray v Budds remains a binding authority and applies to the circumstances which arise for consideration in this case.

On the assumption, therefore, that the defendants by their actions on the 19 th October 2004, or otherwise, were in breach of contract, I am satisfied that as a matter of law, Mr Tracey is not entitled to recover, in contract, damages for mental distress or injury suffered by him in consequence of any such breach.

Discussion and Analysis of the Claim in Tort - Negligence and Breach of Duty

Detailed legal submissions have been made on behalf of the defendants; and a considerable number of authorities have been referred to and are relied on. In response, Mr Tracey strongly rejects the inclusion of extracts from other cases which are unrelated to this case. His replying submissions primarily concentrate on issues of fact. To this extent, it may be said that Mr Tracey has again not engaged in any detailed way with the specific legal points raised. That he has not done so m eans that potential contrary legal arguments based on the authorities, which might be made, have not been articulated.

There are two aspects to Mr Tracey's claim in negligence. One relates to reputational damage and the second to psychological injury.

The defendants submit that Mr Tracey's claim in tort must fail. It is argued that as a matter of law, there is no recognised duty to avoid damage to reputation, as opposed to a cause of action in defamation. They also contend that courts in this jurisdiction have only recognised the existence of a duty of care in respect of pure psychological injury in two types of cases, those in which psychological damage was shock induced in accordance with the principles outlined in Kelly v Hennessy [1995] 3 IR 253 and in circumstances in which an employee sues for psychological damage caused by work-related stress. It is submitted that this claim falls into neither category. It is also submitted that the duty of care regarding psychological impact, which may be found to exist in employment situations, is inapplicable where matters complained of occurred in the course of a commercial contract for services concluded between what are described as professional peers. Reliance is placed on Fletcher v Commissioner of Public Works [2003] 1 IR 465 . By analogy, it is submitted that extending a duty of care to avoid psychological damage to what are described as counter parties in a commercial contract would be a radical extension and would have fundamental implications for commercial law and conduct of commercial life.

On the facts, it is submitted that the defendants acted with as much courtesy and discretion as they could in circumstances which prevailed at that time. In the alternative, reliance is placed on lack of foreseeability and the absence of evidence of damage caused to reputation. A report from the President of DIT dated the 21 st March 2018, read into the record, continued to refer to the plaintiff's professional reputation in positive terms, his ongoing high-profile work in DIT and his professional organisation throughout the period post-2007. It is also suggested that the plaintiff's reputation is far more likely to be affected by the other matters.

(a) Nervous Shock

The law on claims for damages in negligence for nervous shock in this jurisdiction remain largely governed by the principles outlined by Hamilton C.J. in Kelly v. Hennessy [1995] 3 IR 253 , as follows:

" The cases seem to establish that in order to succeed in an action for damages for nervous shock a Plaintiff must establish the following: 25

The Plaintiff must establish that he or she actually suffered 'nervous shock'. This term has been-used to describe "any recognisable psychiatric illness" and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for 'nervous shock'... 2627

A plaintiff must establish that his or her recognisable psychiatric illness was "shock induced". 28

This principle was enunciated in the Australian case of Jaensch v. Coffey 155 C.L.R. 540 , by Brennan J. as follows:-

"A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the Defendant or if it is induced by shock. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness." 29

Brennan J. gave two examples where there would be no recovery:

"The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation: a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child." 30 ... 32

A plaintiff must prove that the nervous shock was caused by a defendant's act or omission... 3334

The nervous shock sustained by a Plaintiff must be by reason of actual or apprehended physical injury to the Plaintiff or a person other than the Plaintiff. 35

This view was clearly expressed by Deane J. in Jaensch v Coffey as being the present state of the law when he said that a duty of care (and hence liability for nervous shock) will not exist unless 'the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness caused the injury". 3637

If a Plaintiff wishes to recover damages for negligently inflicted nervous shock, he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock. 38

It is not enough to show that there was a reasonably foreseeable risk of personal injury generally. Deane J. stated in Jaensch v Coffey , already cited, that:-

"a duty of care will not arise unless risk of injury in that particular form (i.e. psychiatric injury unassociated with conventional physical injury) was reasonably foreseeable."

While these criteria may have been developed over the years, the fundamental principles remain. In this context, see also the recent decision of Egan J. in Germaine v. Day [2024] IEHC 420 .

I find on the facts that while Mr Tracey may have suffered upset and that the position in which he found himself in the months and years following may have led to the development of depression, even if the actions of the defendants on the 19 th October were entirely responsible (which I have already found they are not), there is no evidence on which a finding could be made that his injury or illness was "shock induced" or was of a nature which has been determined to give rise to a duty of care in negligence. There is no evidence of immediate or temporal shock, loss of function or medical intervention in the aftermath of the events of the 19 th October 2004. The correspondence exchanged in the weeks and months after the 19 th October 2004 provides no support for any such contention. Mr Tracey's initial medical visit took place in March 2005, some five months later. His condition was not then considered to be such as to warrant immediate intervention with medication. Matters were addressed by Dr Lombard on a wait and see basis.

I am therefore not satisfied that the circumstances which prevail in this case give rise to a duty of care in respect of any psychological injury suffered by Mr Tracey. In summary, there is no evidence of sudden or shocking event contemplated in authorities, including Kelly v. Hennessy, such as might give rise to a duty of care and the imposition of liability for the injuries alleged by Mr Tracey in these proceedings.

(b) Reputational Damage

As a matter of principle, the remedy for damage to reputation in tort is to be found in defamation. The law of defamation has been carefully developed over the years and has been subjected to statutory intervention and framing, limitations and exceptions. No convincing case has been made for an extension in this case of the duty of care in negligence to reputational damage. No authority is cited in support of such extension of the duty of care, and such authorities as have been referred to in the submissions of the defendants appear to point the other way, or at very minimum evince a policy of caution (Lonrho plc v Fayed and Ors (no. 5) [1984] 1 All E.R. 188 - where it was held, in the context of a conspiracy claim, that damages for injury to reputation and injury to feelings only arose in an action for defamation) .

The extension of the law of negligence to circumvent the carefully determined principles and boundaries of other torts was cautioned against by the Supreme Court in Cromane Seafoods Ltd v. Minister for Agriculture [ 2016] IESC 6 , where Clarke J. stated:

" [I]t does not seem to me to be likely that negligence could readily be used to get round the limitations which the law has carefully put in place in respect of other torts, for those very limitations themselves derive from an assessment of countervailing factors which would need to be taken into account in assessing the duty of care." (para. 9.4)

Charleton J. also observed at para. 29:

" Negligence is not all encompassing. It has not swamped every other tort. If ill is broadcast of a person, the remedy is defamation . If a person is illegally arrested, the remedy is false imprisonment. If in public office, something is done which affects rights, the remedy may be judicial review in terms of overturning a decision in excess of jurisdiction or, if damages are sought, tort law requires that a claimant should prove misfeasance in public office. The authorities heretofore support the maintenance of those traditional boundaries ." (Emphasis added)

While Charleton J.'s observations in relation to defamation may be considered to be obiter in the context of the issues in that case, I am satisfied that they are strongly persuasive and that I should follow them.

In Glencar Exploration p.l.c and anr v Mayo County Council [2002] 1 IR 84 , Keane C.J. examined the development of the duty of care in negligence. Having referred to proximity and policy, he spoke of the further step of considering whether, in all the circumstances, it was just and reasonable that the law should impose a duty of care on the defendant for the benefit of the plaintiff. Given the protection afforded to damage to reputation by defamation, and the caution expressed by the Supreme Court in Cromane, I do not see a basis for concluding that it would be just and reasonable to impose a duty of care in the circumstances which prevail in this case. I see nothing in the incremental approach to the duty of care which suggests a contrary conclusion.

As is clear from the ruling of the Supreme Court in April 2016, an action in defamation does not fall for consideration in these proceedings. I am satisfied, therefore, on the basis of the evidence and the arguments advanced, that a claim in negligence for damage to reputation made against the first and second named defendants (or for that matter, the third defendant) cannot succeed as a matter of law.

But even if I am incorrect, and a duty of care exists, either in respect of the injuries alleged or in respect of reputational damage, I do not find that the defendants' actions on the 19 th October 2004, when considered in their entirety and in context, constitute such want of care as to amount to acts of negligence. While it would have been more prudent and reasonable to afford Mr Tracey more than one hour to gather his things and leave, their decision and actions were precipitated by Mr O'Connor and Mr Burton's concern for the welfare of their business due to increasing tension in the previous two weeks. That tension was contributed to by the actions and words of Mr Tracey in that period. It was further contributed to by his response, words and actions on the 19 th October when he was requested to leave. No authority has been cited in support of the contention that, in circumstances such as those which prevailed here, by seeking and acting on the advice of a solicitor; and more importantly in summoning members of An Garda Siochana, against whom no wrongdoing is claimed, amounts to negligent conduct as a matter of law. This court would require considerable persuasion to conclude that parties dealing with a confrontational individual or potentially confrontational event, who seek advice from their legal adviser, act on that advice and then seek the intervention of members of An Garda Siochana to assist in dealing with the situation, act in a manner which falls below that which the law ought to consider as being reasonable in the circumstances. I am not so persuaded in this case.

While Mr Tracey subjectively believes that the sledgehammer had been used to crack a nut, I am satisfied that tensions had reached such a stage on the afternoon of the 19 th October 2004 that, objectively, it was reasonable for Mr Burton and Mr O'Connor to seek the assistance of members of An Garda Siochana. Taking and following advice which they received, and particularly at the time they received it, was neither an unwise, unlawful or negligent course of action. That Mr and Mrs Tracey felt embarrassed or humiliated by the events is also understandable.

(d) Causation and Loss of Earnings

Assuming for the moment that I am incorrect in my conclusions that no duty of care arises and that there was no negligence as a matter of fact, apart from difficulties in relation to foreseeability, the evidence advanced by Mr Tracey to support the very significant claims which he makes falls very far short on proof of causation.

As previously discussed, Mr Tracey was first seen by his general practitioner of over 32 years in relation to distress connected with the loss of his employment on the 8 th March 2005. Dr Lombard was of opinion that Mr Tracey was very distressed about his dismissal from work and the lack of explanation provided to him. His diagnosis was of moderate depression, which I have accepted. Ms Dennison felt that Mr Tracey was displaying the signs and symptoms of post-traumatic stress disorder. I have already arrived at a conclusion in respect of a potential diagnosis of post-traumatic stress disorder.

While Mr Tracey was diagnosed with depression as a result of the position in which he found himself at that time, I have already concluded that I am not satisfied that the termination of the agreement was the only reason. A review of proceedings in other cases reveal that Mr Tracey has claimed, at least in a general way, damages for post-traumatic stress, distress and psychological injury. In at least one of those proceedings, he claimed damages of €1,750,000 (see para. 9 of the statement of claim delivered on the 28 th of February 2011 in respect of proceedings 2009/11765P). In other proceedings, a general claim for personal injuries is not particularised. However, it is to be noted that in the proceedings 2006/6407P (Kevin Tracey and Karen Tracey - v - Michael McDowell and others) , a particular claim made is that the plaintiff sustained, inter alia , emotional and psychological damage, trauma and distress. The particulars were sought in a notice for particulars dated the 5 th December 2007, at paragraph 1 (xiii), to which a reply was received " awaiting this information which will be forwarded in due course ".

The onus of proof lies on any plaintiff to establish, as a matter of probability, that claims for past, ongoing and future losses sustained by him were attributable to the acts or omissions alleged against a defendant; and that they were foreseeable.

The evidence of Mr Tracey's inability to work in his chosen profession, or at all , is to be gleaned from the following:

a. His own evidence and self-declaration of inability to continue working in his chosen profession.

b. His evidence of two approaches to prospective employers in or about 2005.

c. His self-reporting to his doctor and psychotherapist in 2005 and 2006.

d. Ms Dennison's opinion.

Evidence has not been given by a witness from either of those companies as to why Mr Tracey was unsuccessful in his pursuit of employment. Despite the fact that Mr Tracey has not been in receipt of medical treatment or supervision since September 2007 at the latest, no evidence has been advanced of attempts to obtain or regain employment since that time, either on a consultancy basis or otherwise and, if so, why he was not successful in obtaining that work. Mr Tracey is clearly functional and intelligent, and I could not conclude on the evidence adduced that self-declaration of inability to obtain work or incapacity to do it, is sufficient to discharge the onus of proof.

No evidence has been advanced from a person or persons in the industry to attest to the reason why Mr Tracey was, or might be, unable to obtain or to be entrusted with work at any time in the past twenty years or into the future. No evidence has been given by any witness of awareness or knowledge of the circumstances of the termination of Mr Tracey's contract and the attendance of the gardai and locksmiths on the evening in question, save for those who he himself informed or who were witnesses for the defence; and none from anyone in his industry.

While Mr Tracey relies on an opinion expressed by Ms Dennison, she does not profess to have medical qualifications, nor is she a vocational assessor or occupational therapist. She has not seen Mr Tracey in over 15 years. While no doubt a bona fide expressed opinion, she prepared her report on the basis of information which did not include the many other issues and stressors in Mr Tracey's life at that time. Further, Ms Dennison fairly explained that her concentration was primarily on treatment rather than causation. I am not satisfied that such evidence is sufficient to assist Mr Tracey in discharging the burden of proof on causation.

Regarding vocational assessment, Mr Tracey submits that the suggested role for such an expert is inappropriate; that such a person provides a service for people who have difficulty with employment because of impaired mental or physical function resulting from personal injuries such as in car accidents. The reality is that there is absent from this case the type of evidence one would expect where significant claims for past and ongoing losses of earnings are made. There is little evidence before the court, and on which the court could act, as to Mr Tracey's function or residual capacity to work in his own industry or in any role, either now or since 2004. It is clear from his appearances before this court that he is an intelligent man and one would have thought that if he had a complete inability to re-engage in the workforce, this would have been substantiated by appropriate expert and other evidence. To the extent that it is claimed, expressly or implicitly, that Mr Tracey cannot work because of damage to his reputation and standing as opposed to a medically attested condition, it is also difficult to see how this does not fall foul of the Supreme Court's earlier ruling that a claim for defamation does not lie within the scope of these proceedings. It is also difficult to see how such injury harm and losses as are claimed are, were or could have been foreseeable from a negligence perspective.

In the circumstances, I am not satisfied that Mr Tracey has discharged the onus of proof of establishing as a matter of probability that his past or future losses are recoverable as a matter of fact or of law or that they are supported evidentially. It follows that the evidential foundation for the admission of actuarial evidence has not been established and that evidence cannot be considered. The calculations in respect of all future and past losses, prepared by Mr Byrne, which I am satisfied were faithfully prepared by him on instructions received, are based on assumptions that do not have an evidential foundation.

For the reasons expressed, I am satisfied that the claim in negligence cannot succeed.

Conversion

The claim in conversion may be addressed briefly. It is pleaded that Mr Tracey's personal and intellectual property was not recovered by him from the defendants. These are said to include personal files, data sheets relating to engineering and management information, design guides, publications, cost files, technical information and data sheets, CIBSE documentation, computer discs and personal files. The particulars supplied in respect of a claim for conversion of personal and intellectual property is unspecified pleaded to be awaiting determination (TBD). No value is placed on them. In evidence, Mr Tracey said that he first protested about his property on the day he left, and that when his filing cabinet was raided, files were gone. The subsequent correspondence concerned invoices in respect of payments due and owing as of the 19 th October 2004. Very little detail is provided of any items that are said to have been missing or retained. Apart from correspondence in August 2005, where a schedule of items was listed, and a reply in September, the court is not satisfied that evidence has been advanced sufficient to enable it to reach any conclusions as to the extent of the alleged conversion, if any, which took place.

Monies Due Under the Contract - The Invoices

Mr Tracey submits that his financial losses include the amounts owing up to the 19 th October 2004 (end of business relationship) of € 119,347; and his expectation losses calculated on a pro rata basis for the remainder of the one-year contract, €71,608 in total €190,955.

On the 29 th October 2004, Mr Tracey submitted a number of invoices for payment. This included an invoice dated the 22 nd of October 2004, entitled reference "FPQ 18", in respect of payment of four months' notice. The sums claimed was €42,089.60, plus 21% VAT (€8,838.82), making the total €50,928.42. This is date stamped received by FPQ Consulting Engineers, on the 2 nd November 2004. This is an invoice that, in evidence, Mr Burton agreed to in principle. This is further reflected in his witness statement of the 13 th June 2023, paragraph 91, when he referenced payments which were in fact made to Mr Tracey's then solicitors on the 14 th September 2005, a sum which was subsequently returned and in respect of which a dispute arises concerning the proper interpretation of what occurred on its return.

The defendants' response is that it is implicit in the words "if required" that they were not under an obligation to provide Mr Tracey with 35 hours work per week and, therefore, no payment is due for unworked hours during the notice period. If this is correct, then Mr Tracey would only be entitled to the standing charge of €2,000 per month plus VAT for the remainder of the notice period .

It is contended that, in such circumstances, the total sum due amounts to €46,739.51 based on the calculation of sums representing deferred payments, €2,000 per month for four months of notice, payment for hours worked in October before and after the notice was served and holiday pay, assessed as a proportion of approximately seven months of a one-year contract. In is contended that, given the defendants sent the plaintiff a sum far in excess of this amount due under the contract, this was returned by the plaintiff, and no contractual damages can arise. It is also submitted that interest could only be payable in circumstances where money has been unjustifiably kept from a plaintiff.

Mr Tracey in his submissions does not engage with the legal principles regarding the recovery of interest, on which the defendants rely.

Mr Burton was taken through the invoices sent by Mr Tracey and outlined his response and attitude to each invoice. There is disagreement over the claim for overtime. Mr Burton's evidence is that he did not receive a request for overtime prior to the 14 th October 2004. When referring to the contents of the letter of the 29 th October 2004, Mr Burton said that he accepted some but not all invoices. There was no dispute about invoice no.18 - FPQ18. This was calculated on the basis of a 35-hour week provision of services over a 16-week period.

Discussion and Conclusion on Amounts Due

On the face of it, the wording of clause 6 appears discretionary from the defendants' perspective. It is evident, however, from the undisputed invoices and from communications between the parties, that up to the time of the termination of the business relationship, 35 hours per week were always worked by Mr Tracey.

I am not persuaded by the argument that once the notice of termination was served, thereafter Mr Tracey had no entitlement to be paid for 35 hours per week for the unexpired term of the notice period. The reasonable expectations of the parties, the manner in which the contract was performed up to the time of its termination and the actions of the parties once the notice of termination was served are, in my view, consistent with such conclusion and with the true intention of the parties at the time they entered the contract. This is also supported by the evidence of Mr Burton and Mr O'Connor concerning Mr Tracey's suggested absences from the office in the days after the service of notice of termination on the 4 th October 2004 and by the increased entries in the FPQ diary after that date; all of which suggest that Mr Tracey was expected by them to be at work during this period. I conclude, therefore, that as of the 4 th October 2004 when the notice of termination was served, it was the intention and expectation of the parties that Mr Tracey would continue to be paid during the notice period as he had been up to that time.

But assuming for the moment that I am incorrect in my interpretation of the wording of the agreement then, I am satisfied that it was implicit in the agreement, as a matter of fact , that those hours would be worked. Indeed, when one considers the evidence of Mr O'Connor and Mr Burton regarding what they thought Mr Tracey's involvement would bring to the new entity, it is difficult to see how this could have been achieved without Mr Tracey providing a minimum number of hours. A similar conclusion arises from the controversy about the diary, and logging who was in or out of the office. If the defendants are correct in their submission that there was in fact no requirement during the period of the agreement and prior to his termination, to provide any service, all that would have been required from Mr Tracey would have been to provide his name and professional qualifications on headed notepaper " as an Associate ", for which he would receive a standing charge of €2,000 plus VAT per month. He would not have to do anything else under that interpretation. In my view, this cannot be and is not a correct reflection of the business arrangement envisaged, agreed, intended and put into effect by the parties. It also runs contrary to the evidence of the defendants of their disappointment with Mr Tracey's performance before the contract came to an end.

I am also satisfied that the proper interpretation of the agreement leads to the conclusion that either Mr Tracey would continue to work during the notice period, and be paid for that work, or be paid what was owed to him, in lieu , based on a 35-hour week for 16 weeks. Therefore, at the relevant time, there was due and owing to Mr Tracey such portion of the 16 weeks for which he had not been paid.

I am therefore satisfied that, in accordance with the proper interpretation of the agreement, supported by the circumstances pertaining to the performance of the contract up to the time of its termination, that Mr Tracey is entitled to be paid for the minimum notice period of 16 weeks, at 35 hours per week, at a rate of €75 per hour plus VAT. This is the amount claimed in invoice FPQ 18.

I also find, applying the same principles, that no claim for overtime could arise after the 19 th October 2004. I am, however, satisfied that the claim for past overtime has been established; and to the extent that it is defended on the basis of absence of prior approval, I am equally satisfied on the evidence that the conduct of the parties was such that any obligation under this term was either waived or was never enforced. He is also entitled to recover the fee for use of his name for the remaining period of the contract.

(a) Calculation of Sums Due

I am satisfied that on the termination of the business relationship on the 19 th October 2004, the following sums were properly owing and due to Mr Tracey.

Invoice FPQ-15, payment due for May/June/July/August 2004,

€21,007.97

Invoice FPQ - 16 payment due for March and April 2004

€1455.10

Invoice FPQ - 17 payment due for overtime from 1 March 2004 - 16 September 2004

€20,086.61

Invoice FPQ - 18 payment in respect of four months' notice

€50,928.42

Invoice FPQ - 19 standing charge for four months

€9,680

Unpaid holiday sums due

€6,411.52

Total

€109,569.62

With regard to invoices FPQ 21 (€8,184.92) and FPQ 22 (€1,532.67), these payments are sought for part of the month of October 2004 (the 1 st October to the 19 th October 2004). Mr Tracey submits that the letter of the 19 th October 2004 superceded the letter of the 4 th October 2004 and that therefore invoices FPQ 21 and 22 should stand. These invoices are disputed by the defendants as involving double counting. As the court has not accepted Mr Tracey's contention regarding the effect of the letter of the 19 th October, and as full amounts were incorporated within invoices 18 and 19, there appears to have been double counting and I am therefore satisfied that these sums are not recoverable.

A sum claimed for overtime, FPQ 23, has since not been pursued. The fee for expenses of €60 relates to a disputed magazine subscription. It seems to me ought to be allowed. This was a fee in respect of a subscription to an architects' journal and I accept that it was acquired for the benefit of all. Thus, the total in respect of these invoices amounts to €109,629.62.

To the extent that Mr. Tracey has claimed entitlement to 5/18 of FPQ profits up to 1 st March 2005, the evidence is that no profits were made during that period. Further, the termination of the contract for services occurred on the 4 th October 2004, before entitlement to a share in profit arose, if there had been one, and is not recoverable on that basis either.

(b) Interest

By letter dated the 14 th September 2005, the solicitor acting on behalf of Burton and O'Connor Ltd wrote to the solicitors then acting for Mr Tracey enclosing a cheque for €91,528.82, in respect of invoices which were accepted to be due and owing (FPQ 15, 16, 18, 19, 20 and portions of 21 and 22). Reference was made to the earlier letter of the 6 th December 2004, in which a " very specific offer " was made in settlement of the claim. The cheque was described as being the total value of the invoices referred to and stating that " any other claim made by your client, will be defended, and such appropriate counterclaim made as our clients may be advised ". The cheque was lodged by Mr Tracey's solicitors, but the sum was returned by way of cheque on the 23 rd January 2006. The only figure not provided for in the offer, which Mr Tracey has recovered in these proceedings, is the amount for overtime of €20.086.61. It is also relevant to note that the offer made included sums determined by this court to have been double counted in the amount of €9,717.59. While Mr Tracey may not have been aware that his solicitor had lodged the cheque, or that his solicitor had the cheque for almost four months, he was aware that the offer was made, it was made to a solicitor who had been retained by him to pursue his claim and he chose to reject it because it was not a payment in full. I am satisfied that the manner in which it was proffered made it clear that any other claim would be defended; and not that its acceptance would be construed as a complete settlement of all disputes.

Having considered the authorities relied on by the defendants, in particular dicta of O'Donnell J. in Reaney v. Interlink Ireland [2018] IESC 13 , I am satisfied that as the disputed amount in respect of overtime was not "clear cut"; and that Mr. Tracey insisted on payment of sums not recovered herein, that there should be no award of interest.

VAT Issue

When cross examining Ms Lyons, Mr Tracey emphasised that his invoices had been included in the accounts of the company. That they may have been so submitted, it seems to me, is evidence that they were, at the very least, and in principle, accepted as being due and owing and properly payable to Mr Tracey. Beyond that, I do not believe that any revenue issues raised, on which the court should not be taken to make observation, affect the conclusions of the Court on the main and principal issues which arise for determination.

Observation on Criticism of Expert Witnesses

Mr Tracey is severely critical of Prof Corvin and Mr Tennant, both of whom are professional witnesses retained on behalf of the defendants. He submits that their reports should be ignored on the basis of Duffy v. McGee [2022] IECA 254 . I do not accept those submissions. Both witnesses prepared reports based on information with which they were supplied and, in Prof Corvin's case, an interview with Mr Tracey. Prof Corvin acknowledged that the dates attributed to the reports of Dr Lombard and Ms Dennison were misstated by him in error. Mr Tracey submits that this was done to give the impression that he had been seen at a different time. Mr Tracey also submits that Prof Corvin's opinion on his symptoms and their cause is not expressed in definite terms, that Prof Corvin uses the expression likely and that the court should disregard his opinion.

It is evident, however, that Prof Corvin had sight of the reports of Ms Dennison, Dr Lombard and the letter of referral of the 10 th November 2005. At para 4.1, pg. 12 of his report, under the heading "Medical and Family History" , Prof Corvin recounted that Mr Tracey attended his GP in 2005 relating to the stress of his dismissal from work and that he attended Ms Dennison for about ten sessions from October 2005, for a number of months. At para. 4.2 he wrote as follows: -

"The report from G.P. Dr. David Lombard (22 nd May 2018) indicated that Mr. Tracey was seen on 4 th October 2005 and complained of low mood, low self-esteem, lack of confidence and was feeling quite depressed due to ongoing effect of the loss of his job and the inability to find further employment. The report noted that it he was again seen on 15 th November 2005 and commenced on the antidepressant Escitalopram 10 milligrams daily. At a session with Ms. Dennison sometime prior to 9 th February he continued to complain of low mood, tearfulness, sadness and reduced appetite. On this basis his medication was increased to 15 milligrams daily."

The court is satisfied that while there were (acknowledged) date errors, the circumstances of this case are far removed from those considered in Duffy. The above extract from Prof Corvin's report shows that despite misdating a report, when reproducing its contents, it accurately recorded relevant dates. To the extent that Mr Tracey questions the use of word "likely", rather than anything of greater certainty, it would be surprising if an expert expressed an opinion in terms of certainties. The framing of opinions in that way is not inappropriate in civil proceedings, where the standard of proof is also expressed in such terms.

As an actuary, Mr Tennant expressed his opinion on figures, real and potential, in order to provide guidance to the court as to how to assess losses had they arisen. Mr Byrne conducted a similar exercise. As actuarial evidence has not been admitted, it is unnecessary to comment further or more particularly on Mr Tracey's criticisms of Mr Tennant's evidence, save to record that in this court's view there is no basis for the grave criticisms made by Mr Tracey of either of the professional witnesses called by the defendants.

Summary of Findings

The following is a summary of the court's findings:

i. The contract for services dated the 24 th February 2004, the side letter of the 24 th February 2004 and the overtime letter of the 27 th of February 2004 govern the contractual relationship between Mr Tracey and Burton and O'Connor Ltd. The earlier contract of employment dated the 30 th of January 2004 was superceded by the contract for services.

ii. Burton and O'Connor Ltd is the contracting party, not Mr Burton and Mr O'Connor in their personal capacities. The proper defendant to the claim for breach of contract is Burton and O'Connor Ltd.

iii. The notice of termination served on Mr Tracey on the 4 th October 2004 terminated the contract for services. No reason was required for the termination of the contract.

iv. On termination of the contract for services on the 4 th October 2004, Mr Tracey became entitled to the benefit of the notice period of 16 weeks and was entitled to work out his notice period, or to payment in lieu of notice.

v. Mr Tracey was not entitled to work out his notice period on the defendants' premises.

vi. The request made by Mr Burton and Mr O'Connor to Mr Tracey to leave the premises on the 19 th October 2004 was lawfully made.

vii. While a period of one hour's notice to leave the premises, as matter of common sense, was unduly short, I am not satisfied that it has been established as a matter of law that the defendants, Mr O'Connor or Mr Burton, were guilty of negligent conduct in the manner in which they acted on the 19 th October 2004 when seeking legal advice, when summoning the assistance of the gardai or when retaining the locksmiths.

viii. To the extent that Mr Tracey suffered stress, anxiety or depression as a result of the actions of the defendants, as a matter of law damages are not recoverable, in either contract or negligence on the grounds advanced.

ix. Mr Tracey has not in any event established a causal connection between his claim for extensive damages to reputation or psychological injury and any act or omission on the part of the defendants, whether personally or corporately.

x. The claims in contract made personally against Mr Burton and Mr O'Connor, now his personal representative Mrs Anne O'Connor, are dismissed.

xi. Mr Tracey is entitled to recover sums due in respect of overtime against the third defendant, Burton and O'Connor Ltd, the court finding that any condition requiring prior approval was waived by the parties through their conduct. No further breach of contract has been demonstrated.

xii. Mr Tracey's entitlement on service of the notice of termination was to work out his notice, or, where his services were not required, to be paid in lieu of notice those sums/fees that he would have received had he worked out his notice period. He is not entitled to general damages.

xiii. The total sum due to Mr Tracey by the third named defendant is €109,629.62 above.

xiv. From October to December 2005, an exchange of correspondence took place in an attempt to agree the amount due in respect of invoices submitted. Correspondence ceased in December 2005. A further demand issued by way of the letter from Mr Tracey's then solicitors on the 22 nd August 2005. In reply, a cheque for €91,528.82 was made available to Mr Tracey on the 14 th September 2005 in respect of specific invoices. It excluded the claim for overtime. It was proffered on the basis that claims for any other sum would be defended. This was rejected and a cheque representing a similar amount was returned almost four months later. Mr Tracey was offered at least the equivalent of what he was entitled to with the exception of overtime. As the sum claimed in respect of overtime was not clearcut, I am satisfied that this is not an appropriate case in which to award interest.

xv. The proceedings against the first and second defendants are dismissed. The proceedings against the fourth defendant are struck out.