THE HIGH COURT
[2001 NO. 646P]
BETWEEN
PADDY POWER AND BLAITHIN MUIREANN POWER
PLAINTIFFS
AND
PETER ALLEN AND McDERMOT AND ALLEN
DEFENDANTS 
Judgment of Mr. Justice Murphy dated the 17th day of January, 2003. 
1. FACTS
The plaintiffs are father and daughter who were to acquire; adjacent lands at Aillenacally, Roundstone, County Galway in 1991 by way of exchange of land and payment of £3,500. The lands contained seven or eight ruined cottages which had once formed a small village which had been abandoned over fifty years ago due to chronic emigration.
The defendant was at all material times a solicitor practising under the style and title of McDermot and Allen who acted for and on behalf of the plaintiffs in the purchase of the lands and in the part exchange of the first named plaintiffs lands at Toombeola, Roundstone contained in Folio 38647, County Galway for lands comprised in Folios 23796 and 2635F of the Register, County Galway owned by Thomas O'Donnell.
The memorandum of agreement was undated but provided for a closing date of the 1St September, 1991. However the sale was not closed for some years and was not registered until 2001. An attempt to sell by auction in 1995 produced no bids. A purported offer in 2000 by a Mr. Derycker was withdrawn. The asking price in 1995 was some £200,000 and in 2000 was £950,000.
There are three material special conditions contained in the contract which incorporates the general conditions of the 1988 edition of the Law Society's General Condition of Sale as follows:
3.The vendor shall grant the purchaser a right of way for all purposes along the way BI to B2 to B3 and along the way marked blue on the map annexed hereto, with or without vehicles, carts or other means of transport, and the purchaser may surface the said right-of-way as a roadway.

4.		4.Plots BI and B2 shall be registered in the sole name of Patrick Power.

5.Plot B3 shall be registered in the sole name of Blaithin Power. 
6.Sale is subject to lands the subject matter of Folios 3635F and 23976 of the Register, County Galway being purchased by Mr. Patrick Power, being converted to absolute, and at or before the closing, the documents necessary to convert the title or alternatively copies of the folios showing an absolute title shall he furnished to Mr. Power's Solicitors. "
Two difficulties arose. Apparently there was no map attached. Several maps were in the file one of which had a way marked blue and had the name of John F. Mannion B.E., CEng. endorsed thereon with the date the 15/4/91.
A further complication arose in relation to a right of water retained by Mr. O'Donnell, the vendor, which seemed to be subject to an agreement in 1995 some three years after the closing of the sale, on the 15th January, 1992.
A second difficulty arose in relation to the special condition requiring the lands "being converted to absolute, ". The special condition, as recited above, required, at or before the closing, the documents necessary to convert the title or alternatively copies of the folios showing an absolute title to be furnished to Mr. Power's solicitors.
It will be convenient to refer separately to Folio 23796F (B1 and B2) and 2635F (B3). B 1 and B2 were to be transferred to and registered in the names of the first named plaintiff and B3 in the name of the second named plaintiff.
Folio 23796: the description of the property is a plot of ground being part of the townland of Aillenacally containing 5.34 hectares together with a plot of ground in Toombeola containing just under nine hectares together with one undivided tenth part of the common lands and a more extensive right to cut, gather and remove all seaweed.
Folio 58666F as of the 16th February, 1996 is in the ownership of Blaithin Power (an infant). Particulars of burdens as of the 16th February, 1996 reads as follows:
"The right of wayleave and such other easements as specified in instrument No. 96GYO1144R in favour of Thomas O'Donnell the registered owner(s) of the property comprised in Folio GY 23 796 as specified therein affecting the part of the property no. shown coloured yellow on plan AICCO of the registry map (OS50/11). "
There is no reference to any other right of way. The folio map, containing B3 does not have any right of way indicated thereon.
Folio 2635F containing four plots of grounds being part of the townland of Aillenacally containing over seven hectares together with two undivided tenth parts and one undivided twentieth parts of two plots containing over 92 hectares which comprised B 1 and B2. There is appurtenant to the property a right of seaweed with other tenants on that part of the foreshore of Aillenacally shown coloured yellow and lettered G/H on the map.
Title is given as possessory. As of the 17th October, 1984. Thomas O'Donnell was registered as full owner. A land certificate was requested on the 29t'" November, 2001 to be issued to James B. Joyce and Co. solicitors for Mr. O'Donnell.
In relation to burdens affecting Folio 2635F it is stated that:
"The property is subject to the right of the Land Commission its successors, licensees and assigns to pass and repass there over on foot or with horses or other animals with or without carts and other vehicles and for every purpose by the way coloured yellow on the plan thereof. "
It was not until the 30th November, 2001 that Land Registry notification of completion of registration by land registry of Blaithin Power of plot B3 without a right of way was received. On the same date notification of completion of registration of Paddy Power to plots 131 and B2, again without a right-of-way was received. Before this notification was received the plaintiffs had issued proceedings by way of Plenary Summons dated the 18th January, 2001.

2. PLEADINGS
2.1	The original statement of claim of the 28th February, 2001 was amended on the 1St October of that year.
The amended statement of claim made by the plaintiffs can be summarised as follows:
1. The plaintiffs instructed the defendant to act on their behalf in the purchase of various adjoining parcels of land situate in the townlands of Aillenacally and Toombeola in Connemara, relying on the defendants to use their professional expertise to transfer to them a good and saleable title to these lands.
2. Five years later they decided to sell these lands. After three years of attempting, and many potential purchasers taking an active interest and then losing interest, they became suspicious of the quality of the plaintiff's title. 
3.As a result of a new potential purchaser, saying that he was worried about the title and stating he was prepared to buy the property if there was a good title the plaintiffs, wrote to the defendants asking them to confirm that they had a good and saleable title to these lands.
4.The defendants declined to do this.
5.They then arranged to transfer the file to another solicitor by the name of McCann Fitzgerald who assured them that the plaintiffs did not have a good and saleable title.
6.As a result this, the sale did not go ahead and the potential purchaser lost interest as had his predecessor.
7.As a result they lost the sale at £850,000, and this loss has since afflicted the quality of both the plaintiff s lives.
8.As this sale was lost entirely because of the professional incompetence, negligence of the defendants the plaintiffs claimed the following sums of money to put them back into the position they would have been in had the sale been completed and to compensate them for the irreparable damage that has been done to their lives.
	In addition to a claim for £850,000 and interest thereon, the plaintiffs claimed £200,000 for trauma, worry and inconvenience; a £100,000 for damages to the second named plaintiff for interference and depravation in her teenage life and loss of one year as a practising veterinary surgeon; additional cost and expense of maintaining his home in Connemara; an allowance for the legal costs of rectifying the faults in the title and additional costs required for advertising and publicity. In total the claim before this Court was in the sure of £1,418,000 as of the 1St October, 2001.
2.2	An original defence delivered on the 2nd August, 2001 was amended on the 7th February, 2002 and can be summarised as follows:
1. The amendment statement of claim does not comply with the provisions of Order 19 Rule 3. The defence is delivered without prejudice to that noncompliance.
2. The defendants deny their reliance by the plaintiffs upon a transfer of a title to the lands and await proof of the alleged instructions in relation. thereto.
3, 4 and 5. The defendants deny the alleged interest of a potential purchaser and his preparedness to buy the property if there was a good title and await proof thereof.
6. The assurance that the plaintiffs did not have a good and saleable title is denied.
7 and 9. It is further denied that any sale of the property did or could not go ahead and that any potential purchaser lost interest as alleged. The sale of the property for £850,000 and the quality of the plaintiffs' life being affected is also denied.
8 and 10. The alleged professional incompetence and negligence of the defendants, referred to in paragraph 8 of the amended statement of claim, are denied.
11 and 12. The failure of the defendant to transfer a good and saleable title and the fact that they do not have such title is denied.
13. It is denied that the defendant was under any obligation to, or owed any duty to the plaintiffs or either of them, to transfer a good saleable title, as alleged.
14 to 16. It is denied that either of the plaintiffs have suffered the alleged or any trauma, worry, inconvenience, loss, cost or expense and, if they did, the same was not caused by any act or omission of the defendant, whether negligent or otherwise wrongful, as alleged or at all.
17. At no time was the defendant instructed by, nor did he owe any duties to the second named plaintiff who was not entitled to any relief.
18 to 20. The plaintiffs are not entitled to recover darnages referred to in paragraph 8 of the amended statement of claim. Such are too remote, not foreseeable and irrecoverable in law.
21. If any such damage occurred it was caused by and/or contributed to by the negligence and/or contributory negligence of the plaintiffs:
“(i) By acquiring the said lands when subject to rights-of-way of which the plaintiff was aware;
(ii)Not securing rights-of-way to access;
(iii)Failing to take any or any adequate steps to secure the rights of way;
(iv) Failing to furnish the defendant with any or any proper instructions;
(v)Failing to take any or any adequate cognizances of the advices of the defendant and/or of the solicitors retained by the plaintiff
(vi)Marking documents submitted to the Land Registry in such a manner as to cause same not to be registered.
22.	The plaintiffs' claim is statute barred (Section 11(2) of the Statute of Limitations 1957).

3.	NOTICE FOR AND REPLIES TO PARTICULARS
The Pleadings were extended and clarified, in particular by way of reply to the Notice for Particulars by the defendants on the 6th  February, 2002. 
i.	Failing to advise the plaintiffs properly, or at all, in relation to the purchase of the lands at B 1, B2 and B3, and the rights-of-way in relation to same.
ii.	Failing to ensure that the Contract and Deeds of Transfer provided for the grant to the plaintiffs of rights-of-way in accordance with the instructions 	of the plaintiff, such rights-of-way to be registrable with the Land Registry, and to include the right to surface same.
iii.	Failing to do all things necessary to procure the prompt registration of the plaintiff's absolute title to the properties B 1 and B2 (in the case of the first 	named plaintiff) and B3 (in the case of the second named plaintiff).
iv.	Failing to enforce or to ensure that the plaintiffs received the benefit of Special Condition 6 of the Contract of Sale which provided that the: sale was 	subject to the Title to the lands, the subject matter of Folio 2635 and 23796, of the Register County Galway being converted to absolute, and at, or 	before, the closing documents copies of the Folios showing an absolute Title, were to be furnished by the defendants to the plaintiffs' solicitors.
v.	Failing to acquire proof of title in relation to the lands over which the rights-ofway were to be granted, and/or to retain an engineer or architect in 	that behalf.
vi.	Failing to do all things necessary to ensure that the plaintiffs had a marketable title in relation to the lands and the right-of-way.
vii.	Failing to comply with the plaintiffs instructions in relation to the rights-of-way he had agreed with Thomas O'Donnell, snr. were to be granted.
viii.	Failing to attach any, or any sufficient importance to the issue of the rights-ofway having regard to the nature and location of the properties which 	were being purchased, when the first named plaintiffs expressed concern in relation to the issue of rights-of-way.
ix.	Failing promptly and efficiently to comply with the plaintiffs instructions in relation to the agreement come to between the first named plaintiff and 	Thomas O'Donnell after the contract of sale whereby the plaintiffs agreed for the lifetime of Thomas O'Donnell, snr. to admit the cattle of Thomas 	O'Donnell to drink on the stream on the lands being purchased by the plaintiffs.
x.	Requiring the second named plaintiff immediately prior to 1995 auction to execute a document to obtain a wayleave or easement to draw water on 	the representation that same wayleave document would not leave defendant's office, and would not bind the plaintiffs.
xi.	Disregard the instructions of the plaintiffs to limit the right of the cattle to drink at the plaintiffs' stream to the lifetime of Thomas O'Donnell snr.
xii.	Causing or permitting a situation in which the plaintiffs did not have, and were not able to show a marketable title in relation to the lands and rights-	of-way at the time of the 1995 auction, or thereafter and in relation to sale to Derryker in 2000.
xiii.	Failing properly to advise the plaintiffs in relation to the failure to register their ownership of B1, B2 and B3, and of the rights-of-way in relation to 		same, or of the reasons therefor.
xiv.	Failing to act in a proper, competent, and efficient manner to protect the interests of the plaintiffs.
xv.	Representing to the plaintiffs, and assuring the plaintiffs that the plaintiffs' ownership of the properties Bl, B2 and of the rights-of-way were 			registered in conformity with the plaintiffs instructions or were about to be registered, and had not theretofore been registered solely as a result of' 		delays in the Land Registry.
xvi.	Causing the plaintiffs to believe that there was no problem in relation to the registration of their ownership of lands B1, B2 and B3, and the rights-of-		way in relation thereto.
xvii.	Failing to disclose, and concealing from the plaintiffs the defendant's own failure to comply with the instructions of the plaintiffs, and with their professional obligations to the plaintiffs.
xviii.	Failing to carry out any, or any appropriate enquiries into the entitlement to use the road or laneway extending from the public road to the bridge across the commonage to the O'Donnell lands, or properly to advise the plaintiffs in relation to same.
xix.	Causing or permitting the plaintiffs to proceed on the basis that their ownership of the lands, and of rights-of-way providing access to the lands was registered, and to act, and continue to act in this belief.

4.	A CHRONOLOGY OF EVENTS
01.10.90	O'Donnell to Power to O'Donnell agreement for mutual rights of way - overtaken by events.
20.11.90	McDermot and Allen letters to Toombeola owners re rights-of-way. 
23.11.90	Power to McDermot and Allen asking them to take over transaction from Joyce and Company Solicitors for O'Donnell.
28.04.91	Power to McDermot and Allen enclosing a signed copy of plan with right-of-way marked in blue of the dotted line.
01.09.91	Closing date of undated contract O'Donnell to Power.
15.11.91	O'Donnell to Power: transfer by way of exchange.
29.11.91	Power to McDermot and Allen re work on bridge :From public road.
09.12.91	McDermot and Allen to owners of common lands.
08.01.92	Joyce and Co. to McDermot and Allen enclosing deed of transfer and exchange signed by O'Donnell.
15.01.92	O'Donnell to B. Power; transfer deed: plot B3.
17.09.92	McDermot and Allen to Joyce and Co.: report to Law Society (1)
26.01.95	McDonnell and Allen to Martin O'Donnell: injunction proceedings.
28.02.95	P. Power v. M. O'Donnell: Civil Bill.
27.04.95	Interlocutory undertakings re above proceedings.
08.06.95	P. Power v. M. O'Donnell: settlement of proceedings.
30.06.95	Order appointing trustees re B. Power.
11.07.95	McDermot and Allen to Joyce and Co. requesting map and revised wording for insertion into transfer O'Donnell to B. Power.
25.07.95	B. Power: agreement re water rights.
26.07.95	Date of auction.
30.08.95	O'Donnell: statutory declaration re long user of roadway into lands at Aillenacally.
19.09.95	Form 17 re B. Power's application to register title - subsequently rejected by Land Registry.
12.02.96	Form 17 B. Power - second lodgment.
01.04.98	Form 17 re P. Power's land - first attempt to register title.
24.03.98	McDermott and Allen to Land Registry re Joyce and Co.
31.03.98	McDermott and Allen to Joyce and Co. to Law Society.
16.07.99	B. and P. Power to McDermott and Allen: send file to Flanagan, Solicitor.
21.07.99	Flanagan's firm encloses plaintiffs authority dated 16.07.99.
.08.99	P. Power meets Derycker.
09.09.99	plaintiff authorises Land Registry to deal with Flanagan's firm: files taken from McDermott and Allen.
22.11.99	Derycker to Power, re property and planning.
10.12.99	McCann Fitzgerald receives file for report and title.
25.01.00	Report on title by McCann Fitzgerald to Power.
31.01.00	Summary report on title to Power.
07.02.00	Derycker to Power re offer for £850,000.
28.02.00	Flannery's Hotel meeting: Allen and Power.
.03.00	McSwiggan S. pub meeting: Allen and Power.
13.03.00	Power to Allen requesting certification of title. 03.04.00 Ditto.
18.04.00	Derycker to Power: not proceeding with purchase.
29.05.00	McCann Fitzgerald to Allen enclosing summary report.
08.01.01	High Court proceedings Power v. McDermott and Allen.
30.11.01	Land Registry notification of completion of registry: B. Power: B3 without right-of-way.
30.11.01	Land Registry notification of completion of registration: Paddy Power: plots B 1 and B2 without rights-of-way.

5.1 EVIDENCE
Both plaintiffs gave evidence as did valuers from each side. The prospective purchaser, Mr. Derycker also gave evidence in relation to his making and subsequent withdrawal of an offer for the premises in 2000.
Ms. Vivienne Bradley, partner in McCann Fitzgerald gave evidence in relation to her report and to Land Registry conveyancing. Mr. Patrick Fitzgibbon of Pierse and Fitzgibbon gave evidence on behalf of the defendant. 
In general, the oral evidence proved the documents and correspondence relating to the two transactions. I do not propose, nor do I think it necessary, to refer in detail to that evidence nor, indeed, to recite the files of documents that were opened to the Court.
I will, however, summarize the matter in relation to the transaction and, in more detail, refer to the report on title and the evidence in relation to conveyancing practice given by both experts.
That evidence now touches on the issue of a liability.
It is only in the light of the findings in relation to liability that the issue of quantum arises.

5.2	CONVEYANCING EVIDENCE
5.2.1	Ms. Vivienne Bradley, Partner in McCann Fitzgerald was retained to do a report and advice on title and to advise on the status of the transaction. It was not appropriate for her to take over the conveyances as there were outstanding undertakings. She was paid fees for the work done but not for the rectification which it deemed necessary. The papers she received were not in order it was difficult to relate the lose maps to the documents. The investigation took considerable time.
By 2001 a possessory title had been granted in respect of B 1 and B2 and an absolute title in respect of B3. However there was no registration of the right of way as provided for in the contract. The reference to the right of way marked blue did not have a corresponding map attached to that contract. She tried to match the loose map which had blue markings. The contract provided for absolute title on closing or the handing over of documents to register absolute title. These documents were not present. There was no registered transfer to the plaintiffs. The vendor had only possessory title and his solicitor, Messrs. Joyce, had control of registration and had given an undertaking to do it. The deed of transfer and exchange did not have a map.
In relation to the right of way B2 to B3, this was over tlae commonage and, accordingly, required the consent of the commoners. The copy declaration dated 30"' August, 1995 by the vendor related to the public road into the lands and did not have a map attached.
In her evidence, Ms. Bradley said that the role of the engineer was necessary if access was not clearly marked. There were lots and lots of maps, some signed by the engineer of which some had further markings. There was no evidence that the consent of the commoners had been sought or obtained.
The closing date in the contract was the 18th September, 1991 when the vendor was still registered with possessory title.
Ms. Bradley found that there was no untoward delay by the land registry beyond the normal delay with a transfer of part folios. She believed that the matter should have been finalised in 1995.
The right to the vendor to take water was referred to in two deeds. She assumed that the second deed superseded the first and was tied up with the trust for Blaithin Power on the 26th July, 1995, the date of the abortive auction.
She prepared a short form report and title on the 31 St January, 2000 to enable title to be perfected. This followed a long report of the 25th January, 2000.
On the 29th May, 2000 she wrote to the defendant solicitors communicating her understanding that the role of McCann Fitzgerald had ended and that there was an agreement between the Powers and Allens how to resolve issues relating to title. The files were returned to Mr. Power.
On the 1St June, 2000 Allens wrote to McCann Ftizgerald saying that they would not be responsible for the cots of rectification.
There were no requisitions or replies. The undertaking given by Messrs. Joyce to register the transfers should have been pursued by writing, threatening sanctions and reporting to the Law Society. Papers lodged with the Land Registry were not dealt with until the 21s' September, 1995 and returned and finally were dealt with in 1996. A purchaser could not have been satisfied at the date of the auction on the 26th July, 1995.
The delay until the 24'1' March, 1998 was not a delay in the land registry but a lack of reply to requests and a reference to the land registry threatening to abandon the dealing.
She believed that the solicitors for the parties, apparently agreed to register without reference to the right of way. She would be concerned that B l- and B2 were only possessory. A lending institution would require good marketable title.
Ms. Bradley said that the report on title was not dealt with, no certificate of title was given pursuant to Paddy Power's request and neither Paddy Power nor Blaithin Power had got good title to the lands. She would not certify title as nobody knew what equities there were. The plaintiffs were getting less than they had agreed to buy. In her opinion it was wrong to abandon the issue of rights of way which was an important issue for the purchasers. In general, where a problem of this nature arises, the purchasers solicitor should advise that the client has an option to pull out and get compensation. However when the transfer was fully registered in 2002 in respect of possessory title it was then difficult to back out.
The professional fees involved in the investigation and report, in the sum of 013,068, did not include the expenses necessary to rectify as there was still outstanding work to be done.
In cross examination Ms. Bradley said it was a report on the status of title rather than a picking of holes.
She was aware of the efforts of the defendants, McDermott and Allen, to have papers lodged with the land registry. There were four letters in 1992 and two in 1993. On the 17 th September, 1992 McDermott and Allen wrote to Joyce threatening to report them to the Law Society. Ms. Bradley believed that the reply on the 4"' May, 1.993 from Joyce to McDermott and Allen was less than what the contract provided. In 1.996 maps were still outstanding.
In relation to the attempt to sell the property in 1995 Ms. Bradley believed that, from what she saw on the file, it would have made it difficult to sell as she would advise a purchaser that the title was not in order.	She would be paranoid about rights of way especially in country property where it is essential for the proper enjoyment of land. All of the remaining common owners needed to grant a right of way. Mr. O'Donnell, as vendor, had only six tenths of the commonage.
The plaintiffs were given a right to a grant and not just an assumption such as that in Wheeldon v. Burrows [1879] 12 Ch. D. 31 in relation to a quasi easement on common land. She would not be satisfied to rely on that assumption.
It was not a complicated transaction. What complicated the matter was the state of the documents and of the maps.
She had asked McDermott and Allen to advise her on whether steps had been taken. She did not have coloured maps nor statutory declarations. In relation to the role of the engineer, Ms. Bradley said that whether the parties themselves or their engineers agree on rights of way it is a matter for the solicitor to advise whether that right of way goes outside the premises being conveyed.

5.2.2	Mr. Peter Allen, the sole defendant, was contacted by Mr. Power in 1990 regarding the contract for the Toombeola lands which he was purchasing from a Mr. Ward. It was, he said, a straightforward transaction. Before it was completed he was told of an exchange of the lands agreed to be purchased with Tom O'Donnell in respect of Bl, B2 and B3 and the rights of way thereon. He was aware of the contract. The engineer, Mr. Mannion, he said, was engaged by Messrs. Joyce Solicitors for Mr. O'Donnell and were based on a plan agreed between Mr. O'Donnell and Mr. Power. The said agreement regarding the water for Mr. O'Donnell's cattle was to be incorporated into the map.
Ms. Joyce, who had acted for Mr. O'Donnell agreed to lodge the dealing and gave an undertaking to that effect. As she had the map. Mr. Allen assumed that the source of delay was that the map wasn't lodged. In 1990 the land registry was busiest in Galway where there was a delay of a number of years. The registry had written to all solicitors saying that they would only deal with straight forward transactions. Mr. Allen said lie wasn't aware that the registration was an urgent matter at that time. He had written to Messrs. Joyce on the 31 st March, 1998 asking them to complete under the heading "very urgent". Blaithin Power's transfer had been lodged in the land registry in 1996. Queries were raised and on the 24th March, 1998. McDermott and Allen wrote to Messrs Joyce reminding them of their undertaking.
Mr. Allen said that he had acted for Mr. Power in circuit proceedings which Mr. Power took in relation to the damage to his repairs to the roadway. He had not advised Mr. Power to repair the road though he had written, on Mr. Power's behalf, to other owners of his intention to repair. Mr. Allen believes that the opening up of the land may have upset some people. The consent of all commoners would be needed to resurface the road. The Circuit Court proceedings for injunctions were settled by way of undertakings between the parties not to interfere with the road.
He was not able to comment on why there were no bids at -the auction in 1995. No one had asked him to change the conditions of sale.
He had two meetings with Mr. Power after he had ceased acting for Mr. Power one was on the 28th February, 2000 where he had lunch in Flannerys Hotel. Mr. Power had told him that he had lost the sale and asked Mr. Allen to purchase the lands from him for the same figure. Mr. Allen said he didn't consider that there was a flaw on the title. When Mr. Allen was asked by Mr. Power if he would pay fees to rectify the title he replied that he would first have to discuss the matter with McCann Fitzgerald. Mr. Allen didn't there was a problem because of the undertakings given by Messrs. Joyce. Mr. Allen told Mr. Power to refer any prospective purchaser to a solicitor.
The second meeting was two or three weeks later in McSwiggans pub where Mr. Power told Mr. Allen that he should buy the premises. Mr. Allen said he would contact McCann Fitzgerald.
At neither meeting were voices raised. The parties parted amicably after the first and Mr. Allen said that Mr. Power could sue him if he wished after the second.
Mr. Allen said that between February and April 2000 he could not have put the title in order because he didn't act for Mr. Power and he did not have the papers.
Mr. Allen says that Blaithin Power's title became absolute under the twelve year rule as it was a conveyance for value: £3,500 had been attributed to the sale to Blaithin. However equality of exchange was not recorded in the deed from O'Donnell to Paddy Power. This was not a conveyance for value.
With regard to the rights of way he said that a special application could have been made to the land registry to register the right of way over the commonage. There was a right of way for the public to the pier: the land registry would look on this favourably.
If he were asked to draft a contract for sale he would have included a clause that the purchaser would accept the declaration. Rights of way in Connemara do not always appear on title. He agreed, however that a commercial use would ring bells with regard to right of way. Everyone had boats and access to the beach and the sea. The reply to the requisitions on the 20th September, 1991 regarding rights of way was affinnative.
Under cross examination Mr. Allen agreed that he had an obligation to keep the plaintiffs informed as to what was happening. He himself had never visited the lands but was aware that the rights of way were to the fore. Mr. Power had written to him on the 28th April, 1991 to "keep an eye on rights of way O'Donnell to my lands". Mr. Allen says he did not advise Mr. Power with regard to the letter to the commoners regarding the repair of the road and bridge. He read the draft and sent it out as requested.
He said he did not want to blame a colleague with regard to the delays in lodging papers with the land registry. There had been a problem in getting the maps lodged. Mr. O'Donnell and Mr. Power had an amicable relationship. Mr. O'Donnell died in 1999.
Mr. Allen said he did not tell Mr. Power that he had the right to walk away. Joyce and Company had agreed to lodge the map and only one solicitor can deal with the land registry.
He was anxious to get the file closed and finished. There was a sense of pressure but not because he thought that Mr. Power wanted to sell it. He denied that he had told Mr. Power that there were no problems on the title other than the delay in getting it registered. He had written on the 11th July, 1995 to Joyce and Company saying that until matters were finalised he could not prepare contracts. However not one bid was made at the auction. If a solicitor were not happy with the contract he would ask for clarification and amendment if his client were interested.
He agreed that there was no dealing number nor pending registration four years after the 1991 contract which provided that the purchaser would be registered as full owner. He could not say which map was attached to the contract.
Mr. O'Donnell was to give a statutory declaration of public rights of way. There was no map attached to the statutory declaration of the 30th August, 1995. He did not accept Ms. Bradley's categorisation of the statutory declaration as being unsatisfactory.
He agreed that it would have been better to revert to the plaintiffs in relation to the period of nine years from the time of contract. The right of way over the commonage may not have been possible but the land registry could have registered the right of way over Blaithin Power's land. He assumed that Mr. Flanagan who had taken over the file in 1999 had the responsibility of finalising the matter with the land registry. He also assumed that on the 28 ti' February, 2000 that that responsibility had been taken over by McCann Fitzgerald. He did, however, agree that Mr. Power was justified in being concerned at that stage. He did not accept that he had exposure to pay costs for the investigation or for the costs of rectification. He accepted that the death of Mr. O'Donnell on the 12th July, 1999 had caused some problems.
The purchase money attributed to B3 was a decision made by his firm for tax purposes.
5.2.3	Mr. Paddy Fitzgibbon, a partner in Pierse & Fitzgibbon of T istowel Co. Kerry, qualified as a solicitor in 1968 and has extensive experience in conveyanc:ing and probate. In relation to Ms. Bradley's report he said that land registry procedures, should have been clarified but that the right of way should pose no difficulty. A copy of the Joyce undertaking and of the coloured maps performing the exchange could be obtained.
With regard to the converting of the title to absolute where the first registration was more than 30 years old, in practice, no one takes action against a possessory title which can be registered and will be registered where there is a purchase for value of more than 12 years.
He said that the problem stemmed from mapping difficulties. What went on the map changed. Mr. Mannion BE prepared the original map of the 15th April, 1991. This was changed on the 5th July, 1995 in relation to the agreement regarding water for Mr. O'Donnell's cattle. This was a change of transaction.
In his view the lands could have been sold in 1995 notwithstanding that the Powers were not the registered owners. He would advise a purchaser to sign a contract. The undertakings were broad enough. The purchaser's solicitor would prefer registered title. Mr. Fitzgibbon said that the average solicitor would allow his client to enter such contracts. A willing purchaser would sign on the basis of the contract with or without modification. 
He would not have registered the right of way - he would have relied on the statutory declaration. He believed that there was an enormous difficulty in registering the right of way - it would have been a nightmare. In any event, the right of way, he said, was a Section 72 burden. He would not be concerned if it wasn't registered. It was impossible to get all the commoners to grant and the land registry would raise difficulties.
With regard to the state of title in 1990-2000 neither party were registered owners. He would have questioned why the registration had taken so long. He had not the benefit of seeing Messrs. Joyces' file. He would not advise litigation against Messrs. Joyce. He thought that 3 of the 18 letters to Joyce which threatened going to the Law Society were sufficient.
He considered alternatives. An express grant would raise difficulties with the land registry. Wheeldon v. Burrows [1879] 12 Ch. D. 31 would also create difficulty with the land registry. The establishment of a public right of way would require the Attorney General and would also create problems.
He repeated that that an application to the land registry to register on the basis of the statutory declaration would be the best solution.
All problems, he believed, were capable of resolution. He agreed with Ms. Bradley in this regard. The solicitors function is to resolve problems and help the client.
It was unusual, in his experience, for a bidder to make title a condition as Mr. Derycker did in his letter of February 2000.
Under cross examination Mr. Fitzgibbon said that his views were based on the perusal of the documents and talking with Mr. Allen. He had not seen Joyce's file. He did not believe that Mr. Allen had done anything wrong but he would have looked for more declarations. He would have resolved the question of the amendment of the 1991 map in 1995. This caused delay. 
He could not say if Mr. Allen was partly responsible as he had not see the Joyce file.
He agreed that the only movement came when the present litigation commenced. He had never experienced a ten year delay. He agreed that the delays were not caused by the land registry but by the delays in lodging papers with him.
Mr. Fitzgibbon believed that Mr. Allen should not have allowed the purchasers to close without the map: there should have been a map for each transfer. He believed the rights of way were crucial given that one of them was a public right of way.
The attempt to register those rights of way contributed to the delay he only became aware of the public right of way from the engineer: the issue of the public right of way was not put to Ms. Bradley.
He believed that Mr. Power and Mr. O'Donnell had made their bargain and then went to their solicitors. The statutory declaration offered by Mr. O'Donnell should, he thought have been drafted differently: he would look for a better declaration. What was drafted would not be acceptable to the land registry. Wheeldon v. Burrows [1879] 12 Ch. D. 31 was more academic than practical.
He would, however, have no hesitation in giving a certificate of title and no problem with the conversion of the possessory title under the 12 year or 30 year rule: he repeated he had never seen a claim in 34 years.
Mr. Fitzgibbon said that a solicitor for a purchaser would read the special conditions carefully especially condition 7 of the draft auction contract of 1995. " ... The vendor's solicitors hereby undertake to discharge all land registry queries ... (but not) queries relating to possessory title ... " It was not unusual.	It was an unqualified undertaking.	If queries in relation thereto could not be answered then the solicitor for the vendor would be liable. The vendor's solicitor should not have to deal with the land registry queries with regard to possessory title. The purchaser's solicitor would have the responsibility of registering absolute title under such a condition.
He believed the matter could be remedied as a routine part of conveyancing to get a better declaration. This would not, in his practice, involve an extra cost to the client. The Powers should get the declarations.
In relation to Ms. Bradley's report he believed that that was new out of date as the land was registered.
Mr. Allen did not have a duty to leave file which would show everything that had been done: such a file is not a case to counsel.

6.	PLAINTIFFS SUBMISSIONS
6.1	Evidence of the defendants' Negligence and Breach of Contract.
The plaintiffs submitted that the evidence adduced established the following negligence and breach of contract on the part of the defendants:
(i)	Such registration of title was effected by the defendants on behalf of the plaintiffs was only effected in November 2001
(ii)	The defendants closed the 1991 contract for sale with Tom O'Donnell when they ought not to have done so and in circumstances where they failed to advise Paddy Power of the situation and to advise him of his entitlement to withdraw from the transaction. (In relation thereto the defendant says that this was not pleaded. If the defendant had not closed the sale there could be no claim for loss arising out of the alleged agreement with Mr. Derycker).
(iii)	The defendants failed to ensure that the map on which was drawn the right of way from B2 to B3 was drawn in a manner which reflected the right of way agreed between Tom O'Donnell and Paddy Power.
(iv)	The defendants failed to ensure that the right of way from B2 to B3 ran only across lands in respect of which Tom O'Donnell was entitled to a grant a right of way. While Mr. Mannion's map of the 15"' April 1991 was manifestly incorrect, the defendants completed the sales on the basis of that uncorrected map; (there was a minor revision to the map in 1995 but this related solely to the location of the right to drink of Tom O'Donnell's cattle).
(v)	The defendants contrived a situation where as a result of the erroneously drawn right of way it was not possible to register the right of way from B2 to B3 in the Land Registry and/or they failed to register the right of way from B2 to B3 in the Land Registry.
(vi)	The defendants failed to procure the registration of a grant of a. right of way from B 1 to B2 in conformity with the 1991 contract. [Mr. Peter Allen has given evidence that the Land Registry ought to register this right of way; Ms. Helena McGrath has given evidence that her letter to the Land Registry in respect of not registering rights of way was not correctly worded in that it was not intended to withdraw the application to register the right of way between B 1 and B (and perhaps also between B2 and B3 in so far as it went across the lands of O'Donnell); Mr. Fitzgibbon has asserted that it is unnecessary to register the rights of way in that there is a public right of way which can be relied upon. It is apparent from these conflicting testimonies, the plaintiffs submit, that the defendants do not know what case they are making in respect of the registration of the rights of way].
(vii)	The defendants misrepresented the position in relation to the title and registration of the plaintiffs title.
(viii)	The defendants failed to advise the plaintiffs properly of the nature of the difficulties which the defendants experienced and failed to advise the plaintiffs of or to obtain the plaintiffs assent to:
		(a) the registration of the plaintiffs as owner of the lands without the rights of way provided for in the contract, and
		(b) the registration of a possessory title only in the case of Mr. Paddy Power. 

(ix)	The defendants failed to register an absolute title in the case ofd Paddy Power. They have contended that the difficulty in registering Paddy Power as absolute owner arose because of the imputation of the entire cash consideration of £3,500 to Blaithin Power (a decision taken by the defendants). However the plaintiffs say that they do not in fact know whether the title can be made absolute.

(x)	In relation to the defendants' case that there was a public right of way across the common lands, they failed to obtain an adequate declaration ofd long user in relation to the right of way across common lands to the car park.
The plaintiffs relied on the following authorities: Roche v. Peilow [1986] I.L.R.M. 189 Kehoe v. CJLouth & Son [1992] I.L.R.M. 282.

7.	DEFENDANTS SUBMISSIONS
7.1	The Claim:
The first plaintiff allege in evidence that as a result of the failure of the defendant to obtain good and marketable title of the lands purchased by plaintiffs, the defendant failed to sell the said lands at auction in 1995, when it was hoped to sell the said lands for approximately £200,000 or £250,000 but when, in fact, no bid was made at the auction. The plaintiffs also alleges that, for the same reasons, the plaintiffs lost the proposed sale of the said lands for £850,000 to a Mr. Derycker in or about: April 2000.
The special damages claimed in the amended statement of claim include the said sum of £850,000 and other sums, making a total of £1,418,000

7.2		Liability
	That delay was very largely caused by the solicitors for Mr. O'Donnell, who had undertaken to secure the registration of the 1st plaintiff while the defendant looked after the registration of the 2nd plaintiff.
There was no particular pressure to register the plaintiffs as owners of the lands purchased by the 1" plaintiff thereunder. Mr. Allen was of the view that the fact that there was some outstanding matters in relation to perfecting the title of the plaintiffs, at the time when the plaintiff ought to sell all of the lands, the subject of these proceedings, by auction in 1995 and would not have deterred prospective purchasers, Mr. Patrick Fitzgibbon e),.;pert Conveyancing Solicitor called on behalf of the defendant gave the same evidence.
The defendant also gave evidence that there was no pressure put to him to complete the registration of the plaintiffs until he met the 1st plaintiff for lunch on 28th February 2000 when the 1st plaintiff alleged to the 1" plaintiff had already lost a prospective purchaser. From that time 21 st July 1999 time onwards the defendant had no authority to act for the plaintiffs and ceased to act for the plaintiffs and merely held the files for collection.
Had the defendant been informed by the plaintiffs of the prospective sale of the lands by the plaintiffs for £850,000 while the defendant was still acting for the plaintiffs and in possession of the relevant files, the evidence of the defendant shows that the defendant would have taken immediate steps to complete the outstanding matters in relation to the registration of the plaintiffs. The defendant's evidence was to the effect that the defendant would have satisfied the solicitors for a prospective purchaser, as to the title of the plaintiffs, and having regard to undertakings, would have been inserted as special conditions in the contract for sale to the prospective purchaser. In this regard the special conditions attached to the! contract for the proposed auction in 1995 are relevant.
The only further matters, which needed attention were:
(i)	that the title of Thomas O'Donnell in relation to plots 131 and B2 be converted from possessory to absolute.
(ii)	that the right of way from plot B 1 to B2 be registered.
(iii)	that the right of way from folio B2 to B3 be registered.
It was admitted by Vivienne Bradley, who was called on behalf of the plaintiffs, that a conversion of the title of plots B 1 and B2 from possessory to absolute may be simply a matter of requesting the Registrar of Titles to do so.
The defendant would have been in a position to insist on the Land Registry, registering on the newly created folio 59252, comprising plots B1 and B2, the entitlement of the lst plaintiff to use the right of way from the northernmost point of the right of way coloured blue on the plan prepared by Mr. Mannion B.E. and intended to be attached to the Exchange Contract, down to where the right of way enters plot B l . Insofar as a part of the that right of way is likely incorrectly marked (being on the McDonagh side of a wall dividing lands owned by a Mr. McDonagh, from those owned by Thomas O'Donnell) the said map showing the said right of way would have had to be slightly altered, but no difficulty should have arisen in this regard by the reason of the fact that the way actually used was on the O'Donnell side of that wall. Accordingly, it is submitted that the rule in Wheeldon v. Burrows (1879) 12 Ch. D. 31 applies in this case. The relevant rule was described in that case by Thesiger L.J. at p. 49;
"the first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. "
That route is the only route from B2 to the Roundstone - Recess road. It follows that the right of way from the northernmost point on the said plan to plot B2, was part of a quasi easement used by Thomas O'Donnell, and under the rule in Wheeldon v. Burrows, the benefit
thereof passed as an easement to the 1st plaintiff pursuant to the Exchange Contract.
7.3	Prospective purchase by Mr. Derycker
	The letter from Mr. Derycker dated 22nd November, 1999, the concern of the alleged prospective purchaser at that stage was planning permission. In his letter dated 8th February 2000, an offer is made in respect of the property. It is submitted that this letter would not constitute a proper note or memorandum to satisfy the provisions of Section 2 of the Statute of Frauds in that it does not:
(a) Identify the lands in respect of which the proposed offer is made. 
(c) There is no reference to the purchase of lands owned by the 2nd defendant.
Mr. Derycker would only have purchased subject to planning permission.
It is submitted on behalf of the defendant that no loss arises as a result of the said events because there was never any binding agreement for the sale of the lands. The offer of £850,000 was never accepted by the 1St plaintiff.

7.4	Civil Liability Act 1961
It is submitted that the plaintiffs are estopped, by the provisions of the Civil Liability Act from recovering from the defendant for alleged losses of damages for which they have already recovered in other proceedings in full and final settlement of the claim of the 2nd plaintiff for loss and damage suffered as a result of the negligence of the Minister for Agriculture. The damages claimed by the second plaintiff herein overlaps to a considerable extent the claim made by the 2nd plaintiff in the within proceedings.
7.5	Statute of Limitations 1957-1991
It is pleaded (Defence paragraph 22) that the claim of the 1St plaintiff is statute barred pursuant to the provisions of Section 11(2) of the Statute of Limitations 1957. Section 11 (2) (a) is in point.
The negligence if any, in this matter occurred when the transaction was completed in January 1992 at the closing of the sale regarding the O'Donnell lands. 

7.6	Reasonable Foreseeability and Remoteness of Damage

It was totally unforeseeable, that a prospective purchaser would make and then withdraw an offer for the lands because the 1St plaintiff could not satisfy the prospective purchaser personally that there was good title to the lands.
The first the defendant knew of the prospective purchaser was when Mr. Power the 1St plaintiff mentioned at the lunch on 28th February 2000 that the prospective purchaser was no longer interested in purchasing the lands.
It is fiirther submitted that it is not foreseeable that the plaintiffs would commission a "report on title".
The delay in registration of the property in no manner caused a loss to the plaintiffs. Evidence has been given that any contract for the sale of these lands would have been similar in terms to the Auction Contract, 1995 and that the special conditions as inserted therein would not have been put off putting to a prospective purchaser. The special conditions in the Auction Contract are very broad and beneficial to a purchaser.
There has never been any difficulty regarding accessing the properties at B1, B2 and B3. Since 1995 it has been clear that the access via the existing right of way, is from Roundstone -Recess Road to the pier adjacent to B l. Both rights of way were explicitly granted in the 2 Deeds of Transfer (to the 1St plaintiff dated the 15" November, 1991: to the 2 °a plaintiff dated the 15th January, 1992).

7.7 Loss
In relation to loss it was submitted that if the defendant has any responsibility for the cost of the McCann Fitzgerald report in title that responsibility is limited the IR£400 + Vat, the liability of Mr. Power. The defendant can have no greater liability to either of the plaintiffs in respect of the work done by McCann Fitzgeralds for the plaintiffs, than the plaintiffs have to McCann Fitzgerald. The defendant made clear on the 11 d' May, 2000 and the 1St June, 2000 that he would pay McCann Fitzgerald only in respect of the cost incurred in discussing with McCann Fitzgerald the plaintiffs' title and any problem relating thereto. 
8.	APPLICABLE LEGAL PRINCIPLES
Conveyancing practice in relation to registered land is, in theory, simpler than the procedure in relation to unregistered land. However it is based on the same principle of transferring a good title from vendor to purchaser. If any weak links in title are overlooked a purchaser solicitor may be negligent. See Pilkington v. Wood (1953) Ch 770.
Defects in title can be classified under three convenient but overlapping categories.
	First there are those defects which affect the ownership of the vendor. While this may be discovered on investigation of title, the vendor has a duty to disclose such defects. One of the examples given in the text book is where the vendors title depends on adverse possession and the proof of extinction of the earlier title cannot be proved.
	Secondly, the inability of the vendor to convey free from encumbrances such as easements renders the title defective if not fully disclosed. Such defect binds the purchaser. In such case it may be in the vendors best interest to disclose matters (see Farrand on Contract and Conveyance, (4th ed. 1983 p. 65).
	Finally, where the property sold is leasehold, any onerous or unusual covenant in the lease and the services of notices must be disclosed.
	Lindley L.J. in Scott and Alvarez's Contract, Scott v. Alvarez (1895) 2 Ch. 603 at 613 referred to bad titles in the following terms:
"There are bad titles and bad titles; bad titles which are good holding titles, although they may be open to objections which are not serious, or bad titles in a conveyancer's point of view, but good in a businessman's point of view. "
A `holding title' is one which looks back to the origin of ownership, namely possession. The expression envisages, in Farrand's view, at 91, a doubtful title or one suffering from a merely technical defects, under which there has been undisturbed possession. This becomes a `good holding title' if the possession is likely to continue to be undisturbed. Indeed possession can become not just a good holding title but a good title in its own right if sufficient evidence of the defeated ownership is forthcoming.
Indeed Jessel MR in Lysaght v. Edwards (1876) 2 Ch D 499 at 507 held that " ... however bad the title may be the purchaser has a right to accept it ... " However, until a holding title (whether or not a "good holding title ") becomes a good title it will not be enforced on a reluctant purchaser under an open contract.
Where there are special conditions, as in this case, the purchaser takes subject to those conditions.
The investigation of title made on the purchasers' behalf by the purchasers' solicitor gives the purchaser protection within the ambit of the contract. If a defect in the vendor's title is missed then the purchaser is entitled to a remedy, infrequently against the vendor for breach of covenant for title but, more commonly, against his solicitor for professional negligence.
The plaintiff, in any event, is under a common law duty to take all reasonable steps to mitigate any loss. However, a solicitor who has negligently investigated title cannot compel a plaintiff client to mitigate his damages by pursuing the alternative remedy under breach of covenant for title. In Pilkington v. Wood (1953) 2 All E.R. 810 at p. 813 G, Harman J. stated:
"I am of the opinion that the so-called duty to mitigate does not go so far as to oblige the injured party, even under an indemnity, to embark on a complicated and difficult piece of litigation against a third parry. The damage to the plaintiff was done once and for all directly the avoidable conveyance to him was executed. This was the direct result of the negligent advice tendered by his solicitor, the defendant, that a good title had been shown, and, in my judgment, it is no part of the plaintiffs duty to embark on the proposed litigation to protect the defendant from the consequences of his own carelessness.
Pilkington concerned an action for damages for the negligence of the defendant while acting as solicitor for the plaintiff in connection with the purchase by the plaintiff of certain freehold premises. The defendant failed to advise the plaintiff that there was a defect in the vendor's title in that the premises had been part of trust property wader a will of which the vendor was a trustee and the abstract of title showed that the vendor had purchased it, through intermediaries, from himself and the other trustees. Later, the plaintiff entered into a contract to sell the premises but, on finding the defect in the title, the purchaser refused to complete. The plaintiff thereupon brought an action for damages against the defendant.
The measure of the solicitor's liability was the difference, at the time of the conveyance to him, between the value of the property with a good title and its value with the defect. Other items claimed which were not such as might reasonably be supposed to have been in the contemplation of the parties as liable to result from the solicitors negligence were too remote.
Even in the case of an open contract where parties have shaken hands on price they will still trust their solicitors to do everything necessary to protect them against traps and pitfalls that beset the completion of sales of real property: see Black v. Kavanagh (1974) 108 I.L.T.R. 91 at pp. 94/96, per Gannon J. (see Farrell, Irish Law of Specific Performance, (1St ed. 1994) page 120 paragraph 5.19.)
The general duties of a solicitor are to act on his client's behalf and to give legal advice to such client in accordance with his contract of retainer. Where a solicitor is acting for a number of clients with a similar interest, his retainer is with each individually. As in all relationships involving a duty of care, solicitors are bound to exercise a reasonable degree of care, skill and knowledge in all legal business that they undertake. See Jackson and Powell Professional Negligence, (4th ed., 1997), Chapter 4.
In Roche v. Peilow [1986] I.L.R.M. 189 Henchy J laid down the standard to be expected of a solicitor:
"The general duty owed by a solicitor to his client is to show him the degree of care to be expected in the circumstances from a reasonably careful and skilful solicitor. Usually the solicitor will be held to have discharged that duty if he follows a practice common among the members of his profession ... But there is an important exception to that rule of conduct ... and a person cannot be said to be acting reasonably if he automatically and mindlessly follows the practice of others when by taking thought he would have realised that the practice in question was fraught with peril for his client and was readily avoidable or remediable. " At pp. 196 and 197.
	In Kehoe v CJ Son [1992] I.L.R.M. 282 the plaintiffs were advised by their solicitor that they were purchasing a yearly tenancy which was "as good as freehold" since they had the legal right to acquire the freehold at a reduced sum. In fact, this was not possible without having the premises revalued, an exercise which involved considerable additional expense. The failure to advise as to the implications of purchasing the freehold was held to constitute negligence on the part of the managing clerk who was dealing with the matter.
	In Pilkington v. Wood [1953] Ch 770 the purchase price was treated as the market value at the date of breach resulting in a detective title. Damages were assessed as the difference between the market value with a good title and the value subject to a defect in title.
	Where there is a defective purchase the valuation method may be the difference between the valuation of good and of defective title, the loss on resale or the cost of cure. In addition damages may be awarded for inconvenience. See Flentley and Leech, Solicitors Negligence (1st ed. 1999) paragraphs 8.72 to 8.81.
9.	DECISION OF THE COURT
9.1	The contract between the parties was for an exchange of lands and a consideration of £3,500 payable by the plaintiffs. The closing date was the 1" September, 1991. There were three parcels one of which was to go to the second named plaintiff in respect of which, eventually, the full consideration was attributed.
The approach to the land was through an old road over an old :prefabricated bridge and into the site which led to some eight cottages and two harbours. The distance from the main road to the pier on one of the harbours was approximately three miles. As the site, a deserted village was not lived in for upwards of 40 years, rights of way to it and through it were unclear and, to some extent, overgrown. Indeed the rights of way agreed on between the parties and mapped by Mr. Mannion, the engineer, appear to have passed over commonage of which the vendor was an owner in common. A problem arose with regard to how best to include these rights of way in the transfer to the plaintiff. The right of way seemed also to pass over third party land. The contract for sale contained a number of special conditions. Reference has already been made to condition 7 thereof.
What transpired some ten years later after proceedings issued was the registration of the plots without the rights of way and the transfer of possessory title ;rather than absolute title. The contract required documents to enable the purchaser and his daughter to register themselves as absolute owners.

9.2	In the meantime the property was put up for sale in 1995 and attracted publicity nationally and, indeed, internationally. Indeed, as publicity continued the asking price increased. Unfortunately there were no bids at the auction nor, indeed, any queries to the defendant who continued to act for the plaintiffs.
It is not possible to describe the effect of difficulties in title. Neither is it possible to say whether price was a factor. Relationships with adjoining land owners, and the then recent Circuit Court proceedings may also have been a factor. It does not seem to the court that the delay in registering title caused any loss.
No doubt had there been a sale - even at a reduced price - rnuch hardship could have been avoided in terms of the living conditions of both plaintiffs and the schooling of the second named plaintiff. It is to the credit of the plaintiff that these difficulties were overcome and that the second named plaintiffs succeeded, albeit after repeating her :Leaving Certificate, to get the points which she required for university. I have every sympathy with a parent, on his own, attempting to fund education courses abroad to enable his daughter do better ink language. There may indeed, have been no other source of funds and it may not have been thought proper or possible to raise money on the security of the lands. But it does not seem to me, whatever the delay up to 1995, that these were attributable to the defendant. Even if this were not so, it is clear that the defendants did not know that this was a loss emanating from the delay in registering the transfers according to the contract. Indeed., it seems, that the agreement with Mr. O'Donnell regarding the water which was being dealt with shortly prior to the auction itself, constituted a further negotiation and caused confusion in the maps in relation to a contract which had already been executed.

9.3	Four years later a Mr. Derycker, who gave evidence to the court, expressed an interest in acquiring the lands for a sum of £850,000 subject to good title, as he had learned, he said, that there were some problems with regard to title which led to the land not being sold in 1995 by auction.
The correspondence between Mr. Derycker and Mr. Power had been fully opened and commented on. His letter of the 7d' February, 2000 purports to be an offer, subject to title, for that sum. This is followed, some two months later, on 18th April, 2000 by a withdrawal of the offer. This is the basis on which the plaintiffs say is the measure of their loss because of the delay in registering their title and registering it without the rights of way and without absolute title.
	Mr. Derycker, in his evidence to this court, says that he was willing to pay that sum for the property. He believed that he could build a substantial residence for himself, at least, if not develop the site further. If he had an assurance with regard to title - a certificate of title, for example - he would have then instructed a solicitor and a planning consultant. However the matter had not proceeded to that stage and he had not had the benefit of either legal or planning advice. Mr. Derycker came across as a confident and competent business man. It is clear from his evidence that he would not allow himself be bound into a contract
where he could not develop the land (assuming that his solicitor was satisfied with title) as he had planned. This he had expressed in his letter of 22nd November, 1999. He would have taken such advice. The original asking price was £1,200,000. That was then reduced to £950,000. It was on this basis that he made an offer for £850,000.
Under cross examination he said that he would have had a solicitor before committing himself. He also said he would have had expected his acceptance to be subject to planning. It was the only property which he saw.
In his letter of the 7th February, 2000 he had stated: "and, of course, as you said if there is no good title we camzot buy it". It never occurred to him to get an Irish solicitor to look at the documents. It was not up to him to sort out the paper mess. lie had confidence in Mr. Power sorting it out. He said he would not be bound if there was no proper deed.
He said that Mr. Power did not tell him about the title problem (Ms. Bradley had reported back to him on 30th January, 2000 regarding problems of title). He said that he wrote the letter of the 18th April, 2000 to terminate the offer.
If the valuation were half of what he had offered to pay he would have felt foolish. He had made the bid on the basis of information available. To him it was a commitment and never his intention to change the price.
Mr. Derycker expressed himself as a decisive person who was committed with regard to the price he offered. That, however, was based on planning for what he wanted and, of course, title.
It does not seem to me that from a legal point of view that had title alone when resolved - and Mr. Fitzgibbon has told the court that it could be done as a routine part of conveyancing for which he would make no extra charge, it seems to this court that there was not an enforceable contract inherent in Mr. Derycker's letter of the 7th February, 2000.
From Mr. Power's point of view, given the history of delay, it must be assumed that he was concerned about Mr. Derycker's requiring an assurance regarding title. One would have expected him to alert Mr. Flanagan, or indeed Ms. Bradley to the necessity of making good title if Mr. Power did not want, at that stage, to involve Mr. Allen anymore. 
9.4 	       Whatever complication arose because of the exchange and the undertaking given by the solicitor for the vendor (who was also, of course, a purchaser) this did not justify the delays in and extent of the property registered. There was a contract in respect of rights of way. There was also an agreement with regard to the registration of absolute title. Neither of these particulars were known to Mr. Derycker who had not investigated nor, indeed, been told of difficulties in title.
It seems to this court that the delays cannot be justified: a contract with a closing date in January 1991 should have been registered, even allowing for the delays in registering a transfer by way of exchange, within a reasonable period from that date. It also seems clear that the statutory declaration and the maps should have been dealt with more expeditiously.
 9.5	      There is some dispute between the conveyancing experts with regard to how the matters could be resolved. Ms. Bradley believes that the grant of the right of way should be obtained and registered. Mr. Fitzgibbon, on the other hand, believes that a statutory declaration, in a more comprehensive form, should suffice. Both positions were justifiable. According to the contract there was to have been a grant. If the lands were to be developed commercially then one would prefer a grant. However land such as the subject matter of a contract abutting on commonage and having a pier to which there was some rough access for the public is not urban commercial land. The practical solution in the circumstances to avoid difficulties may be to proceed by way of statutory declaration. Whether that can be registered or not is another matter.
It does seem to me that the solicitor for the purchasers - the defendants in this case - should have advised the plaintiffs of the options as difficulties arose. It could very well have been a matter of walking away from a contract - as Mr. Fitzgi bbon suggested - or making the best of what was available.	It is clear that Mr. Power was concerned about adjoining owners when he bought Toombeola and was aware of resentment and obstruction which led to the Circuit Court proceedings.
The evidence of the defendant and of Ms. Helena McGrath was that the right of way granted could be registered but for a misunderstanding with the land registry.
Mr. Fitzgibbon's evidence was that this was not necessary.
However, it appeared clear fiom the evidence that part of the right of way is over the commons and another part is over lands owned by a Mr. McDonagh.
Difficulties arose in relation to the public right of way which could have been resolved before the death of the vendor, Mr. O'Donnell on 12th July, 1999, by way of statutory declaration.
Though the delay was largely caused by the solicitors for the vendor, notwithstanding, the eighteen letters (including threats to report to the Law Society) the responsibility must be with the purchasers solicitor to register the transfers expeditiously even where there was no particular pressure to do so.
While it is unlikely that outstanding matters would have deterred prospective purchasers at the date of the auction on 26th July 1995 the same might not be said in 2000 when Mr. O'Donnell had died.

9.6	Mr. Power, having met Mr. Allen on 28th February 2000 after Mr. Power had received the report on title, on 31St January, 2000 then asked Mr. Allen on 13th March 2000 and 3`d April, 2000 to certify the title.
Mr. Derycker purported to make an offer on 7th February 20010 and indicated that he was not proceeding on 18`h April 2000. On 29th May the short report on title was sent to Mr. Allen.
I accept the defendants evidence that had he been informed of that prospective sale he would have taken immediate steps to complete the outstanding matters and proceed by way of special conditions as were included in the draft contract of July, 1995.
I accept the defendants submissions that the letter of 8th February, 2000 could not be enforced against. It is clear from his letter of 22nd November, 1999 arid from his evidence to the court that he was concerned about planning permission.

9.7	1 cannot accept the defendants argument in relation to the Statute of Frauds pleaded at paragraph 22 of the Defence.
	Assurances had been given that registration would be completed and, indeed, were partly completed on 30th November, 2001 after pleadings issued on 8th January, 2001. The issue regarding time is not that of the date of the contract but of discoverability. In DW Moore & Co Ltd v. Ferrier and Others (1988) 1 All E.R. 400, time ran from the date of a negligently drafted contract.	That is not the case pleaded here. Damage became manifest at the time of the receipt by the plaintiff of the report on title in January 2000. (See Hegarty v. O'Loughran [1990] IR 148 and O'Donnell v. Kilsaran Concrete Limited and Another [2002] 1 I.L.R.M. 551.
The plaintiffs were then aware of the deficiencies in their title.
9.8	The defendants were under an obligation to, and owed a care towards, the first named plaintiff under the contract of retainer to transfer a good saleable title as provided by the contract for sale.
That obligation extended to the second named plaintiff, who was a minor, for whom the defendant subsequently agreed to act.
The defendant was in breach of such duty of care in relation to
-	undue delay in procuring the registration of the several premises
-	failing to procure the registration of the rights of way and. of absolute title as provided for in the contract and
-	failing to advise the plaintiffs of the progress and difficulties with regard to maps rights of way and statutory declarations.

9.10	A defence of contributory negligence had been raised. Even if it were established that Mr. Power had himself negotiated with Mr. O'Donnell after the contract was executed and marked maps which had been prepared by the engineer, the defendant ought to have advised of such variation being outside the contract of the title, difficulties that this would create and of the necessity of having the engineer produce a map.

9.11	The plaintiffs are in possession. Blaithin Power is a purchaser for value and it may be possible for Patrick Power to register the rights of way and absolute title on the basis of statutory declarations without the necessity of a grant from third parties.
Whatever investment was made by Mr. Power in repairing the bridge and the road: as seen from the more recent photographs taken by several witnesses with regard to the rights of way it is clear that the expected increase in value has been considerable. The value of the lands exchanged and the consideration in respect of Blaithin Power's portion is but a tiny fraction of the asking price four years later in 1995 and even smaller in relation to the offer of £850,000 by Mr. Derycker in 2000. Evidence on valuation, having regard to the possible planning permission available, does not justify those valuations. However it is clear that the lands are, and remain, valuable and that the plaintiffs are in possession of the lands. 
9.12	          The court is not satisfied that the offer by Mr. Derycker is evidence of value of the property with title registered in conformity with the contract. There has been no satisfactory evidence of the value of the property as currently registered.	Taking its present user there may be no significant difference.
The court does not accept, on the evidence, that there was an enforceable contract between Mr. Power and Mr. Derycker. Even if there had been steps taken to cure the defects enumerated by Ms. Bradley, Mr. Derycker still required some assurance regarding the building of a large dwelling. In any event Mr. Power did not appear to have accepted Mr. Derycker's purported offer.

9.13	If is difficult to ascertain from the evidence what difference in value there is between the present registered title and that contracted for.
It would seem that the measure of damages is the cost of curing that difference. The underlying value of the land, on the evidence, has increased significantly even if there is some evidence of values decreasing marginally in the past year.
The plaintiffs are entitled to the costs of curing these defects which have not been quantified.
They are also entitled to the cost of investigation and report on title in the sum of £400 actually discharged by Mr. Power.
Damages particularised in paragraph 8 of the amended statement of claim were not notified to the defendants before proceedings issued and are, in any event too remote. There is insufficient evidence that they resulted from the breach.
The claims which overlap with claims in other litigation where there has been a full and final settlement cannot be entertained by the court.