Damages for Curable Title Defects: Substitute Performance, Proven Delay Losses, and Recoverability of Trustee Act Costs; Limited Distress Awards via Physical Inconvenience

Introduction

This High Court judgment in O'Brien v O'Donnell & Ors [2025] IEHC 455 concerns the fallout from a pair of interlinked property transactions in 2007 involving the sale of 28 Clontarf Road and the purchase of Apartment 3, Glenbrian Hall, Dublin 3. The plaintiff, Ms Janice O’Brien, sold her home for €785,000 to Patrick O’Donnell and Martin Walsh (receiving a €125,000 deposit immediately) and, in tandem, purchased No. 3 Glenbrian Hall from Ms Catherine O’Donnell (the first defendant) for €450,000. The second defendants are Ms O’Brien’s solicitors, Plunkett Kirwan (Messrs Kirwan and Plunkett).

Following completion on 24 October 2007, serious title defects emerged in respect of Glenbrian Hall: the vendor’s 2000 lease had not been stamped or registered, closing had proceeded on the basis of an undertaking (unknown to Ms O’Brien), and a later 2009 lease/assignment was created which did not cure title and was ultimately accepted by the Supreme Court (in 2022) as not conferring good and marketable title. Ms O’Brien also experienced significant damp and mould in the apartment and claimed she was unable to refinance or sell because of the title position.

Although both defendants admitted liability shortly before trial, they disputed Ms O’Brien’s entitlement to damages. The case therefore squarely addressed: (i) whether general damages for distress were recoverable in a conveyancing context; (ii) whether Ms O’Brien could recover a diminution in value/loss-of-opportunity to sell; (iii) whether the costs of a Trustee Act title-rectification application were recoverable as damages; and (iv) whether aggravated damages should be awarded.

Summary of the Judgment

General damages for distress: awarded in the sum of €36,000. The Court accepted the “physical inconvenience and discomfort” exception to the general ban on non-pecuniary contractual damages, given damp/mould and inability to sell due to title. However, the award was substantially reduced (60%) to reflect major contributory factors including Ms O’Brien’s own wrongful re-entry to 28 Clontarf Road (and ensuing litigation) and a later facial injury causing neuralgia (paras 96–97, 80–89).
Diminution of value / loss of opportunity to sell: refused. The Court held that where title defects are curable (a “completed transaction” type case), damages may include foreseeable loss in value caused by delayed rectification, but the plaintiff must prove values at the relevant dates. Ms O’Brien failed to adduce adequate evidence of the apartment’s value at the time she would have sold (around April 2008), so the claim failed (paras 110–138).
Trustee Act costs: awarded. The Court allowed €56,580 as damages for the reasonable costs of the 2020 Trustee Act application that ultimately enabled title rectification, notwithstanding that that application concluded with “no order as to costs” and that Ms O’Donnell was not a party to it (paras 139–149).
Aggravated damages: refused. Late admission of liability is not, without more, a basis for aggravated damages; alleged fraud/intermeddling and misleading of the High Court were not proved; and the post‑2017 rectification chronology showed no oppressive conduct (paras 150–172).

Analysis

Precedents Cited and Their Influence

Non-pecuniary loss in contract and the “physical inconvenience” exception

Murray v Budds [2017] 2 IR 178 and Watts v Morrow [1991] 1 WLR 1421: The Court reaffirmed the general rule that damages for “distress, disappointment and anxiety” are not recoverable for breach of contract, save for limited exceptions. Adopting Bingham LJ’s framework, the Court distinguished between (a) contracts where the very object is pleasure/peace of mind (e.g., holidays), and (b) cases where mental suffering is directly related to physical inconvenience and discomfort caused by the breach.
Smyth v Huey & Co [1993] NI 236: Applied Watts, confirming recoverability where mental distress flows from physical inconvenience/discomfort, even if the contract is not of the “holiday/peace of mind” type.
Johnson v Longleat Properties [1976–1977] ILRM 93; Roche v Peilow (HC, 8 July 1986); Leahy v Rawson (HC, 14 January 2003); Mitchell v Mulvey Developments [2014] IEHC 37; Doran v Delaney (No 2) [1999] 1 IR 303: These “building cases” support modest to substantial general damages for inconvenience/loss of enjoyment where defects produce physical discomfort and related distress. The Court used Mitchell’s per‑year approach as a benchmark, but adjusted downward given less severe facts and significant contributory factors.

Damages in conveyancing negligence: “no transaction”, “completed transaction”, and “intermediate” cases

ACC Bank v Johnston & Co [2010] IEHC 236 and Kelleher v O’Connor [2010] IEHC 313 (Clarke J): Set out the analytical framework for professional negligence in property transactions — the “no transaction” case (sale would not have proceeded), the “completed transaction” case (title would or could have been procured), and “intermediate” cases (lost a chance to renegotiate). Damages are to restore the plaintiff to the no‑wrong position, with the assessment tailored to which category applies.
Rosbeg Partners v LK Shields [2018] IESC 23 (O’Donnell J): Where negligence is a failure to do something that can still be done (a curable defect), the primary measure is (i) cost of substitute performance and (ii) any foreseeable loss in value caused by the delay, assessed between when rectification ought to have occurred (and sale would have been possible) and when it was reasonably remedied, assuming intention to sell and deprivation of sale.
Duffy v Ridley Properties [2008] 4 IR 282; Roberts v O’Neill (SC, 3 July 1981): Confirm the court’s discretion to assess damages at dates other than breach; however, the Court here stressed the correct “starting date” for any market loss is when the plaintiff would have sold but could not due to the title defect, not the purchase date.
Bacciottini v Gotelee & Goldsmith [2016] EWCA Civ 170: Not a bar to recovery of other foreseeable losses; the Court aligned with Rosbeg’s flexible, fact‑sensitive approach.

Mitigation and contributory negligence

McKew v Holland [1969] 3 All ER 1621; Hyland v Dundalk Racing [2017] IECA 172; s.34 Civil Liability Act 1961: The Court applied mitigation/contributory negligence principles to reduce general damages for distress, given that major stressors flowed from Ms O’Brien’s wrongful re‑entry and subsequent litigation, and from an unrelated facial injury (neuralgia).

Costs of third-party proceedings and Henderson v Henderson

Henderson v Henderson (1843) 3 Hare 100; Johnson v Gore‑Wood [2002] 2 AC 1; Culkin v Sligo Co Co [2017] IECA 104; Mitchell v Ireland [2007] IESC 11: The Court held that a “no order as to costs” in the Trustee Act application did not bar Ms O’Brien from recovering those costs as damages in the negligence action. Henderson abuse is a flexible, merits-based doctrine; different parties and different issues meant no abuse in seeking those costs here.

Aggravated damages

Conway v INTO [1991] 2 IR 305; O’Donnell v O’Donnell [2005] IEHC 216: Late denial or admission of liability, without oppressive conduct, is not a basis for aggravated damages. Allegations of fraudulent intermeddling and misleading the High Court were not proved to the required standard.

Legal Reasoning and Application

1) General damages for distress

The Court declined to treat either the conveyancing contract or the retainer as “peace of mind” contracts (i.e., not holiday‑type, para 74). Instead, it applied the “physical inconvenience and discomfort” exception: Ms O’Brien experienced damp and mould (accepted on the evidence: paras 48–53), wished to sell, and could not refinance/sell given the title position. Mental distress and anxiety causally connected to that physical inconvenience were recoverable.

However, causation and mitigation materially reduced the award:

Ms O’Brien’s facial injury and neuralgia were independent stressors (paras 80–81).
Her wrongful re‑entry to 28 Clontarf Road and the injunction/appeal proceedings were significant contributors to stress (paras 82–89).

Using Mitchell v Mulvey as an indicative benchmark but recognizing that case’s greater severity, the Court fixed a gross annual figure of €6,000 for 15 years (April 2008 to July 2023), yielding €90,000, and then imposed a 60% reduction for contributory factors, resulting in €36,000 (paras 96–97).

Loss of earnings was not separately recoverable (too remote; no PIAB; no medical proof; para 94), and could not be folded into general damages.

2) Diminution in value / loss of opportunity to sell

The Court treated this as a “completed transaction” case under Rosbeg: the title defects were curable; thus, damages in principle comprise the cost of substitute performance and any foreseeable loss in value caused by delay (para 112). Crucially, the Court clarified the reference date for any market loss:

The correct starting point is the date when the plaintiff intended and took steps to sell and was unable to do so due to the title defect, not the purchase date (para 138).
Here, that was about April 2008, when Ms O’Brien met her solicitor and sought to refinance/sell (paras 59–63).

On the evidence, the valuation proof failed:

Both valuers were “unimpressive” (paras 124–135). The plaintiff’s valuer lacked comparators and reasoning for discounts; the defendant’s valuer assessed a “sale agreed” price on an “everything right” basis, not an “ultimate achieved” price considering defects.
Even if the Court proceeded on €425,000 as a current value, there was no evidence of the apartment’s value in April/May 2008 — the critical date — to compute any difference (para 138).

Accordingly, Ms O’Brien failed to establish recoverable diminution of value/loss-of-opportunity damages.

3) Trustee Act costs as damages

The Court awarded €56,580 for the costs of the Trustee Act application that ultimately enabled title rectification (paras 139–149). This is squarely within Rosbeg’s “substitute performance” head. Key points:

Not barred by res judicata or Henderson v Henderson: the defendants were not parties to the Trustee Act proceedings; the issues differ (title rectification costs as a head of damages versus a pure costs order in those proceedings); Henderson is flexible and did not preclude recovery here (paras 143–147).
It was reasonable for Ms O’Brien to participate as a notice party, given the protracted and fraught title history, so her own costs were properly incurred (paras 148–149).

4) Aggravated damages

Refused. The alleged post‑2017 delay and the late admission of liability did not amount to oppressive conduct within Conway v INTO. The allegations of fraudulent intermeddling (2009 lease/assignment) and of misleading the High Court were not established on the evidence (paras 153–160). The rectification chronology post‑2018 did not demonstrate malice or arrogance; rather, it showed a complex, carefully executed cure, agreed by expert opinion and ultimately delivered through first registration in 2022 and removal of the 2009 lease burden in 2023 (paras 165–171).

Impact and Practical Significance

A. Measuring damages in curable title cases

Framework clarified: Where the negligence consists of failing to do something that can still be done (curable title defects), damages centre on (i) the cost of substitute performance and (ii) any foreseeable loss in value caused by delay, assessed between the date when the sale would have been possible and the date reasonably achievable rectification occurred, assuming an intention to sell and deprivation of sale.
Proof burden raised: Plaintiffs must adduce robust valuation evidence at the relevant historic date (the intended sale window), not solely at judgment. Absent an April/May 2008 valuation here, market-loss damages failed entirely.
Starting point reset: The Court expressly rejected using the purchase date as the baseline where loss is due to delayed rectification, not the initial acquisition (para 138). Expect future claims to turn on contemporaneous or reconstructed valuations at the actual intended sale date.

B. Distress damages in conveyancing disputes

Limited but available: The Court reconfirmed that, although property purchases/legal retainers are not “peace of mind” contracts, general damages for distress can be recovered where they flow from physical inconvenience and discomfort caused by the breach, as happened due to damp/mould compounded by inability to sell.
Apportionment is real: Where other significant stressors exist (e.g., plaintiff’s own wrongful acts, independent injuries), substantial reductions are justified. The 60% reduction here is a salient example of applying s.34 Civil Liability Act to non‑pecuniary contract damages tied to physical inconvenience.
Loss of earnings separate and remote: Attempting to smuggle earnings losses into “distress” will fail where earnings are too remote and unproven (and where PIAB authorisation or medical causation is absent).

C. Costs of third-party curative proceedings

Recoverable as damages: Reasonable costs of necessary curative proceedings (here, a Trustee Act application) are recoverable against the negligent parties even where those proceedings culminate in a “no order as to costs.”
Henderson v Henderson flexibility: Different parties and different issues mean claimants are not boxed out from later seeking such costs as damages. This is practically significant in complex title cures that often require specialist applications and engagement with the PRA.

D. Litigation conduct and aggravated damages

Late admissions typically go to costs, not damages: Absent oppressive behaviour, malice, or arrogance (Conway v INTO), a late concession of liability will not justify aggravated damages.
High proof threshold for misconduct: Allegations of fraud/intermeddling or misleading the court must be strictly proved; absent clear proof, aggravated damages will not lie.

Complex Concepts Simplified

“No transaction” vs “Completed transaction” vs “Intermediate”
- No transaction: Had the solicitor acted competently, the sale would not have gone ahead; damages generally restore the client to the position of not having transacted at all.
- Completed transaction: The defect was curable; proper conduct would have delivered good title; damages focus on the cost of the cure and foreseeable losses caused by delay.
- Intermediate: The client lost a chance to renegotiate or secure different terms; damages are awarded on a probabilistic “loss of chance” basis.
Physical inconvenience exception
- Although contract law generally bars “distress” damages, they are permitted for mental suffering directly linked to physical inconvenience/discomfort caused by the breach (e.g., living in a damp, mouldy property you cannot leave because of a title defect).
Trustee Act application
- A procedural route used to cure complex title problems by obtaining court directions and orders; its costs, if reasonably incurred to remedy the negligent shortfall, can be claimed as damages in later proceedings against the wrongdoers.
Henderson v Henderson
- A doctrine to prevent abuse by re‑litigating matters that should have been raised earlier; applied flexibly. Here, it did not bar recovery of Trustee Act costs as damages.
Mitigation and contributory negligence (s.34 Civil Liability Act 1961)
- Claimants must act reasonably to limit their losses; if their unreasonable acts contribute to loss, damages are reduced by a just and equitable amount. The Court reduced distress damages by 60% due to Ms O’Brien’s wrongful re‑entry and other factors.

Conclusion

O’Brien v O’Donnell & Ors provides a meticulous map for quantifying damages in conveyancing negligence where the title defect is curable. The Court:

Affirmed that the proper measure in such cases is the cost of substitute performance plus any provable loss caused by delay — but anchored to the date when the plaintiff would have sold and could not, not the purchase date. Without historical valuation evidence for that date, market-loss claims will fail.
Confirmed a narrow, fact‑linked path to non‑pecuniary recovery in property cases: distress is compensable where it stems from physical inconvenience and discomfort caused by the breach, subject to substantial reduction for other stressors and the claimant’s own conduct.
Recognised that the reasonable costs of necessary, separate curative proceedings (here, a Trustee Act application) are recoverable as damages notwithstanding a “no order as to costs” outcome and Henderson v Henderson considerations.
Rejected aggravated damages in the absence of proven oppressive or malicious conduct, signalling that late admissions typically sound in costs rather than damages.

Practitioners should note the evidential demands this judgment imposes: to recover market loss for delayed rectification, plaintiffs must marshal cogent valuations for the precise historic window when sale would have occurred but for the negligence. Conversely, defendants should recognise that costs of necessary remedial proceedings may be shifted back as damages despite earlier cost orders, and that physical inconvenience can ground moderate distress awards. The decision thus refines Irish law on remedies for curable conveyancing defects, balancing fairness to plaintiffs with rigorous proof and principled limits on recovery.