Tag: Tory Island

The House that Disappeared on Tory Island – Updated

Anton McCabeJournalist Anton McCabe (pictured left) has written a book about The House that Disappeared on Tory Island (Drumkeen Press, 2012), which was launched by former editor of the Irish Daily Star Michael O’Kane. Film-maker Neville Presho bought a house on Tory Island, but it vanished whilst he was abroad. I have written on this blog about the resulting court case. Now Anton McCabe tells the whole sad story. At the launch of the book, he said, “It is a great story and a true testament to … [Presho’s] refusal to give up his fight for justice”.

In advance of the launch, McCabe gave an interview to the Ulster Hearld which explained his involvement in the case:

I had been going to Tory Island for quite a number of years and islanders had told me they were unhappy with what had happened … Going over in the ferry at Easter 2003, I was standing on the prow of the boat when I fell into conversation with another man before I realised he was the householder, Neville Presho. He was surprised I knew so much and had gone through a terrible time by then. Soon after that, which was ten years after the house had been destroyed, things started to happen. …

Neville arrived on Tory Island to find his house was gone. He hasn’t been able to work in over a dozen years and it has destroyed his life. It was a most extraordinary tragedy on a personal level for him. …

Update (2 Jan 2013): By Louise Cullen on BBC NI News:

The tale of the ‘vanishing house’ on Tory Island

Neville PreshoThe story of how a 150-year old house on an island off the Irish coast simply vanished has become the subject of international fascination, as the owner turned to the courts [judgment here] to find out what had happened to his Tory Island retreat. …

“Older islanders say that my film, An Oileán or Island, was the best film that was ever made on Tory,” said Neville [Presho, pictured above right]. …

Over the years since he discovered the house had vanished, Neville suffered poor mental and physical health. His career ended and his marriage broke up. … But his feelings for the island and its people whom he loved have not changed. …

Tory Island and Unjust Enrichment – the judgment

Wishing Stone, Tory Island, via WikipediaI’ve previously blogged (1 | 2 | 3) about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. It was a colourful case, in which interesting unjust enrichment issues arose, but I was unable to say more on that aspect of the case as no written judgment was made available at the time. However, it has recently been uploaded to the Courts Service judgments database. In Presho v Doohan [2009] IEHC 619 (17 July 2009) Murphy J explained what happened to the elusive unjust enrichment issue:

6. Unjust enrichment
While not pleaded, the court considered, in addition to the circumstantial evidence, whether and if so, to what extent it was proper to consider restitution either as a quasi contractual or equitable remedy. The court allowed an opportunity to the plaintiff to consider an amendment. No such amendment was made, though the defendants made written submissions.

The court does not propose to address the matter.

Tory Island and Unjust Enrichment – the conclusion

Oyster Pots on Tory Island, by MarsW via FlickrI wrote last April and again last July about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. In July, Murphy J held that Mr Presho was entitled to a comparable dwelling on the island or its market value. The matter was adjourned to last week when the judge heard there were significant differences between the sides over what valuation could be put on an equivalent house in Tory. Today, in the High Court, Murphy J awarded Mr Presho €46,000 as damages for trespass and interference with his property (RTÉ news | Irish Times breaking news. Update Irish Examiner | Irish Independent | Irish Times). At an earlier stage in the proceedings, Murphy J had suggested that these damages could be calculated to prevent the defendant’s unjust enrichment, but there is no hint of this in today’s press reports. In the absence of written judgments in this saga, this will probably have to count as another colourful but missed opportunity in the development of the Irish law of restitution for unjust enrichment.

Tory Island and Unjust Enrichment – continued

Tory Island coastline, via the BBC websiteI wrote in April about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. At that stage, Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park, and adjourned the case to receive submissions as to remedy. He gave judgment yesterday (Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ news). Murphy J held that an equitable remedy lay not in the re-instatement of the original property but in the provision of a comparable dwelling on this island or its market value, and he adjourned to October the issue of which of those options should be chosen. And so we must wait some more to learn whether the remedy really is restitutionary or whether it is founded upon more general considerations.

Tory Island and Unjust Enrichment

PreshoTory Island is a small island of striking natural beauty off the northwest coast of Co Donegal. So, film-maker Neville Presho must have thought himself a lucky man to have a holiday home there. Until, one day, he returned to the island, and found that the house was gone, replaced by car park for an adjacent hotel (Irish Emigrant | Irish Independent | Irish Times | Kerryman | RTE | Soft Irish Rain). In an ongoing High Court action [an important preliminary stage is here], Mr Presho’s claim against the hotel in respect of the demolition of the house failed, but Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park. Tim Healy’s story in yesterday’s Irish Independent explains the restitution claim:

Hotelier in car park row faces order over damages

Holiday home ‘vanished’ while owner was absent

A Tory Island hotelier who built a car park on the remains of a 150-year-old holiday home which burnt down may have to pay damages to its former owner. A High Court judge who is presiding over a legal row over a holiday home which allegedly “disappeared” and became a car park for an adjoining hotel yesterday said the case may be dealt with on the basis of unjust enrichment by the hotel. This requires someone who has obtained a benefit at the expense of another, without a legal justification, to provide compensation or restitution for their loss. … Mr Justice Roderick Murphy said yesterday Mr Presho had not succeeded in proving the cause of the damage, but he (judge) was finding that, notwithstanding this, there may be a case against the hotel for unjust enrichment.

The judge said he wanted to hear submissions on this before he would give a final judgment and he adjourned the matter to next May. … He said it was clear the hotel had benefited from the demolition of the house and the clearing of the rubble which was left over. … He said he would, as part of submissions on the issue of unjust enrichment, invite the parties to deal with any award of damages that may follow. .. Mr Presho told the court the case was not about retribution but “about restitution.”

Damages for trespass to land are usually measured by the market value of the unauthorized use, that is to say, the going rent (where the trespasser is an overholding tenant, such damages are called mesne profits). And there is a discussion in the cases as to whether such damages should be characterised as compensatory or restitutionary (on restitutionary damages, see in particular the work of Edelman and Giglio, and the Law Reform Commission’s Consultation Paper [esp Chapter 6] and Report on Damages [esp Chapter 8]). This measure is controversial, especially as a matter of Irish law, so we can at least hope that any decision by Murphy J in this case will bring some certainty to the area.