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1. The single issue which I have to determine in this judgment (all other issues arising on the claim and counterclaim herein having been compromised by the parties after several days hearing) is which of the parties is entitled to possession of a 12 foot strip of land immediately adjoining the eastern boundary of a site transferred by the Defendant to the Plaintiffs on the 30th August, 1994. I will refer to this strip of land hereafter as "the twelve foot strip" .

2. The way in which this issue came about is as follows: The Defendant has been the owner of a six acre site at Ballagh, Bushy Park in the City of Galway since 1970. He built his own house thereon in 1972/3. At all material times he intended to develop this site as an upmarket residential development comprising seven generous sites in addition to his own. In this judgment I am concerned with the three sites adjoining the Defendant's own house and proceeding into the site in a westerly direction. These sites have been referred to throughout the case as Sites 1, 2 and 3 and I will adopt the same style in this judgment. Site 1 adjoins the Defendant's own house.

3. The evidence shows that Site 1 was transferred to James Egan on the 30th November, 1989. Its eastern boundary was common with the western boundary of the Defendant's own site. James Egan is the registered owner of that site. Site 2 was transferred to Noel Elwood on the 3rd April, 1992 and its eastern boundary as shown on the transfer as common with the western boundary of Site 1.

4. Site 3 was transferred to the Plaintiffs on the 30th August, 1994 and once again, this transfer shows that the eastern boundary of Site 3 was common with the western boundary of Site 2. It is common case that the Defendant intended to transfer the entire of the land between the eastern boundary of Site 1 and the western boundary of Site 3 by means of the three transfers to which I have referred.

5. James Egan is registered full owner of Site 1. A difficulty has arisen, however, because he has set out his site so that the western boundary is some twelve feet short of what it should be if it were set out along the boundary shown on the transfer. This difficulty has been compounded by reason of the fact that Mr Elwood set out his site not by reference to the correct boundary between Sites 1 and 2 as shown on the transfer but by reference to the actual physical boundary set out by Mr Egan twelve feet short of the boundary of Site 1 on the transfer. The result has been that both the western and eastern boundaries of Site 2 are set out 12 foot to the east of the points on the ground where they should be in order to comply with the transfer. Accordingly, there is a strip of ground 12 foot wide immediately to the west of the western boundary of Site 2 as it has been set out on the ground which was included in the transfer of Site 2 from the Defendant to Mr Elwood but which has been excluded from Site 2 as physically marked out on the ground. The Plaintiffs have taken the benefit, so to speak, of this 12 foot strip of ground in that they have included it inside the eastern boundary of their own site whilst setting out the western boundary of Site 3 in its correct position as shown on the transfer thereof.

6. James Egan is registered full owner of the entire of Site 1 as transferred but it will be seen is in actual possession only of that site less the western most 12 foot strip thereof. Mr Elwood's successor in title, Mr Curran, is in actual possession of a piece of ground which includes the western 12 foot strip of Site 1 as transferred from the Defendant to James Egan but minus the western most strip of Site 2 as transferred from Mr Gill to Mr Elwood. The Plaintiffs are in actual possession of the entire of Site 3 as transferred together with the western most strip of Site 2 as transferred from Mr Gill to Mr Elwood. The only one of these three sites to be registered with the Land Registry is Site 1.

7. The Defendant is registered owner of the entire overall site so that he is entitled to possession of any portion thereof not transferred to third parties or subject to rights given by him to third parties.

8. Site 2 was the subject of litigation between Noel Elwood and the Defendant which was finally determined by the High Court on Circuit on the 9th March, 1994. I will be returning to the Order of the High Court in that case at a later point in this judgment.

9. The evidence in the present case shows that the first named Plaintiff was aware of litigation between the Defendant and Mr Elwood at a time when he was considering buying Site 3 from the Defendant. In order to ascertain with certainty the boundaries of Site 3 he attended on site with the Defendant and he walked the four corners of the site with him. Noel Elwood had had a company called Celtic Surveyors set out his (Elwood's) site and it was apparent that there was a gap between the western boundary of that site which was marked with a temporary fence and the eastern boundary of Site 3 which had been pegged out by the Defendant. Padraic Rhatigan gave evidence that he queried the Defendant about this gap and the Defendant said "that's correct - those two smart asses set out their sites incorrectly and they'll have to correct that" . He said that the Defendant told him that Elwood would have to bring his site "to where my boundary is pegged" . Padraic Rhatigan gave evidence that it was clear from this that the Defendant was not claiming the 12 foot strip and he commented that he would have had problems if the Defendant had been making such a claim.

10. This piece of evidence was repeated twice by Padraic Rhatigan in his evidence in chief, namely once when he was describing his own case and once when he was being taken through the Defendant's counterclaim. It was not put to him in cross-examination that the Defendant had not used the emphatic expressions referred to above, although it was put to him that he was aware, before signing the contract, that the Defendant was claiming possession of the 12 foot strip. He denied this.

11. The Plaintiffs signed their contract to purchase Site 3 from the Defendant on the 18th February, 1994 (the transfer being executed on the 30th August, 1994). The Elwood -v- Gill litigation concerning Site 2 was finally determined by order of the High Court on Circuit (per Keane J.) dated the 9th March, 1994.

12. The dispute between the Elwoods and the Defendant related to a claim by the Defendant that they had wrongfully knocked a masonry stone wall bounding Site 2 to the north (that is the side adjoining the access road) whereas in fact the site as transferred stops short of this wall by some four metres. I will deal with the issues which arose in that case shortly.

13. The order of the High Court at paragraph 1 made a declaration as follows:-

14. To complicate matters a little further, there are two versions of this order both apparently signed by the County Registrar. Furthermore the copy of these two different versions are both, apparently, certified by the County Registrar as a true copy. The second version of the order adds the following to paragraph 1.

15. For the purposes of this case, the relevant Circuit Court file was requested but it is missing.

16. In the result the Defendant lost the case brought against him by the Elwoods. He had contended that a piece of land along the northern strip of Site 2 (that is the strip adjoining the access road) some four metres deep had not been transferred by him to the Elwoods. The Court found otherwise and expressed its decision in one or other version of the words already referred to.

17. In their civil bill the Elwoods had claimed that the Defendant had expressly or impliedly represented and warranted to them that the boundary wall (along the northern boundary) formed part of the lands of Site 2. In his defence the Defendant relied on the transfer map which he claimed did not include the 4 metre plot behind that wall and counterclaimed for damages for trespass upon the basis that the Elwoods were in possession of more than the land sold which was outlined on the Land Registry map (the transfer map) which he said delineated the extent of Site 2.

18. So far as the precise extent of Site 2 was concerned, the issue in the Elwood - Gill proceedings was whether or not the Elwoods were entitled to the plot of land extending some four metres into the site from the northern boundary. This issue was determined in the Circuit Court and in the High Court in favour of the Elwoods.

19. The Defendant contends that the effect of the declaration in that case is to circumscribe the extent of the lands to which the Elwoods were entitled so as to exclude the 12 foot strip. The reason for this is because in the context of that case the Elwoods had set out the boundaries of Site 2 by reference to the western boundary of Site 1 which, it will be recalled, was incorrectly set out in that it fell some twelve feet short of the true position as shown by the transfer map. The Elwood site, therefore, was itself incorrectly set out (being some 12 foot to the east of where it should be). The engineers, (there were five of them in total) who gave evidence in the Elwood - Gill litigation differed as to the area of this site but their evidence in relation to it was based on the site as plotted on the ground without, apparently, taking into account the fact that the transfer map included the 12 foot strip. The issue as to ownership of the 12 foot strip was not an issue in those proceedings at all. The issue, insofar as the extent of Site 2 was concerned, was confined to whether or not the Elwoods were entitled to the 4 metre plot of ground immediately adjoining the masonry wall bounding the site to the north. In the result the Court held that they were.

20. The Defendant's claim in the present action arises from the determination in the Elwood case. He submits that the determination of the issue in that case, and in particular the manner in which the Court order is formulated, means that the ownership of the Elwoods is determined in such a way as to exclude the 12 foot strip. The Plaintiffs in the present case lay no claim to it on the basis of his transfer to them and accordingly, he is entitled to possession thereof as being the registered owner of all lands not transferred to any third party.

21. The Plaintiffs in these proceedings submit as follows:-

22. In response to this Counsel for the Defendant argues that the Plaintiff is not entitled as a trespasser to set up against the Defendant's claim to possession the right of another, namely the Elwoods/Currans. They say that jus tertii is no defence in the present case and they refer to the 21st edition of Salmond and Heuston on Tort (page 47) and adopt as their argument the following passage:-

23. The Defendant says that even if his possession (and possession in this context is an entitlement to immediate possession as distinct, of course, to actual physical possession) is wrongful as against the Elwoods/Currans, this does not avail the Plaintiffs in the present case as a defence to his counterclaim against them as trespassers. They cannot set up the mere right of a third party as a defence to such a claim.

24. Counsel for the counterclaimant has referred in this context to two cases. The first is Glenwood Lumber Company -v- Phillips (1904: AC: 405) and cites in particular from the judgment of Lord Davey at page 410/11 as follows:-

25. The second case to which I was referred is Nicholls -v- Ely Beet Sugar Factory (1931: 2: CH: 84) and in particular to the following passage from the judgment of Mr Justice Farwell at page 86:

26. Counsel for the Plaintiffs (as defendants to the counterclaim) submits that in the present case they are not merely setting up the right of a third person, namely the Elwoods/Currans as against the Defendant: They say that they are in occupation of the 12 foot strip with the permission of the owners of Site 2 and indeed point to a formal agreement whereby those owners in addition to themselves and the owner of Site 1 have agreed that Sites 1, 2 and 3 be registered in the Land Registry showing the boundaries as they are on the ground rather than as they are shown in the relevant transfers.

27. In my view the Plaintiffs are not setting up a mere jus tertii. They are not merely pointing to the owners of Site 2 and claiming that those owners are entitled to the 12 foot strip and therefore the Defendant is not; they go further because they say that they are in occupation of the 12 foot strip on the authority of the Elwoods/Currans who are the real owners (to use the phraseology used in Farwell) and they say that it is competent for them to question the Defendant's relation to the Elwoods/Currans by reason of their own relationship with those parties (to use the phraseology in the Glenwood case).

28. As I understand the authorities and the doctrine of jus tertii, it fails as a defence in the mouth of a trespasser only if it is a mere jus tertii ; if the claim of the third party's entitlement is coupled, in addition, with a further claim that the alleged trespasser is in occupation on the authority of that party, then the defence does not fail on the grounds of jus tertii. In the present case the Plaintiffs have established, in my view, that they are in occupation of the 12 foot strip with the consent and on the authority of their next door neighbours who are probably entitled to the possession of Site 2 as transferred by the Defendant, namely the Elwoods/Currans.

29. This brings me to the last question, namely whether the determination of the Elwood - Gill litigation has the meaning contended for by the Defendant in these proceedings.

30. The effect of the Defendant's submission is that the issue as to the extent of Site 2 was determined in those proceedings so as to exclude the 12 foot strip and that the Plaintiffs are not free to re-open this issue (they are estopped by record) because in so doing they are standing in the shoes of the Elwoods and are therefore bound by the High Court decision as between themselves and the Defendant.

31. Before looking at the record of the Elwood - Gill litigation to determine what was at issue in that case, I will set out, briefly, the law as I understand it where a party such as the Defendant in the present case contends that the Plaintiff in laying claim to the 12 foot strip is making a submission which is the precise point which having been distinctly put in issue has been found against him by a Court of competent jurisdiction (or as in this case), against those from whom he claims authority. The principle is well established but has recently been restated in two cases involving the same plaintiff, Osgur Breathnach. The first of these ( Breathnach -v- Ireland, The Attorney General, Egan & Ors : 1989: IR: 489) was tried by Lardner J. who held that the Plaintiff in civil proceedings claiming damages for assault and battery was estoppoed from so pleading upon the basis that the issue had been determined in earlier criminal proceedings against the Plaintiff. The learned judge pointed out that the prosecution in the earlier proceedings involved a lengthy enquiry in which evidence was adduced by witnesses for the prosecution and for the defence and which lasted for 30 days during a trial of 35 days and which had been conducted to determine whether or not the statements were voluntary. That enquiry involved the consideration of the accused's allegations of assault and battery followed by a clear determination by the Special Criminal Court that no member of the Garda Siochana (who were among the Defendants in the civil litigation) had subjected the Plaintiff to any assault or battery. Accordingly, the identical question now raised in the civil proceedings had already been decided against the Plaintiff by a Court of competent criminal jurisdiction. Accordingly, Lardner J. held the Plaintiff estopped from making this particular allegation.

32. It is worth noting that the precise issue had arisen in the earlier proceedings and had been the subject of a lengthy investigation by the Special Criminal Court which "... was concluded by a full and detailed consideration of the evidence adduced and a detailed statement of the Court's decision on the several allegations." In fact that statement disclosed the determination by the Special Criminal Court that there had been no assault or battery to the Plaintiff but it did not reveal a determination that there was no false imprisonment, no malicious prosecution or no failure to vindicate his constitutional rights. These latter causes of action were included by the Plaintiff in the case tried by Lardner J., but the question of issue estoppel was not raised in regard to them.

33. In a second case stated, however, a further preliminary issue was directed to be tried as to whether the Defendants were estopped from raising in their defence the legality of the arrest and detention of the Plaintiff and the question whether his constitutional right of access to a Solicitor had been denied when these matters had themselves been the subject of determinations by the Special Criminal Court. This second case stated was determined by Blayney J. and is reported at 1993: 2: IR: 448. Blayney J. quoted from the then relatively recent judgment of O'Hanlon J. in Kelly -v- Ireland (1986: ILRM: 318) at page 328 where he had said:-

34. Blayney J. went on to consider whether each of the three allegations had been the subject matter of an issue determined finally by the Special Criminal Court, namely the allegation that the Plaintiff's confession had been extracted by fear of assault and oppression, that he was falsely imprisoned and that his constitutional right to a Solicitor had been denied.

35. Blayney J. held that there was a final determination by the Special Criminal Court that the plaintiff's statements were not made as the result of any assaults ill-treatment or improper matters employed the Guards, and accordingly the plaintiff could not raise these allegations now in his civil action; there was equally, a clear determination against the people of Ireland that his detention in the Bridewell had been unlawful and accordingly the defendants were precluded from re-litigating this issue as a defence in the civil action and that there had not been a final determination on the third issue relating to the plaintiff's constitutional right to a Solicitor.

36. It will be seen, at once, that the approach of the Court was to apply the doctrine of issue estoppel only where there was a clearly defined issue so determined by the Court and also to segregate out a number of issues, if there were such, in the preceding litigation and to apply the doctrine only to those which were clearly determined. In regard to the issue as to the plaintiff's constitutional right to a Solicitor, the conclusion of the Special Criminal Court that he was so deprived was based upon taking a view of ambiguous evidence which was most favourable to the then accused. In those circumstances Blayney J. held in the subsequent civil litigation that the Special Criminal Court had not purported to make a positive finding of fact and that accordingly there had not been any final determination of this issue and that it was accordingly open to the defendants to raise it again in the subsequent civil proceedings.

37. From the foregoing it will be seen that the Court's approach to the application of the doctrine of issue estoppel is precise and strict. The issue must be identical with the issue already determined in earlier litigation and the determination, when it is an issue of fact, must be a formal determination of that issue in the same manner as it would have arisen in the second set of proceedings and not by reason, only, of the application of a principle of law which would not apply in the second set of proceedings. Thus the ruling that there had been a breach of the accused's constitutional right to have access to a Solicitor was based not on a determination of the evidence but as a result of the application to that evidence of the principle that the view thereof most favourable to the accused should apply in the criminal proceedings. That would not apply in the case of the civil proceedings and accordingly there had been no final determination in the sense appropriate to the application of the doctrine of issue estopel.

38. That being the case, I now approach my consideration of the record of the Elwood/Gill proceedings with a view to ascertaining whether the issue now raised by the Plaintiffs in these proceedings (standing in the shoes, so to speak, of the Elwoods) is identical to an issue raised and finally determined (in the full sense indicated by the authorities) in those earlier proceedings.

39. A number of issues arose on these pleadings but insofar as the extent of Site No. 2 was concerned the Civil Bill claimed that the Defendant in order to induce them to enter a contract expressly or impliedly represented and warranted that:-

40. The line marked "A/B" represented the northernmost boundary of Site 2 as determined by the masonry stone wall. At paragraph 11 of the Civil Bill it is recited that the Plaintiffs had knocked part of this masonry stone wall in order to replace it with a concrete block wall and that the Defendant had wrongfully knocked a portion of this concrete block wall and thereafter erected poles some 4 meters inside the claimed boundary. The line of these poles was depicted on the map attached to the Civil Bill some metres south of the northern most boundary of the site along a line C/D. In his defence and counterclaim to those proceedings, the Defendant (at paragraph 2) denied that he agreed to sell the area shown on the Civil Bill map which was incorrect and further denied that he made the alleged representations and warranties, he denied that the masonry stone wall was unstable and claimed that it belonged to himself and he further denied that he was wrong in making his claim that the area of land contained between the letters A/B and C/D on the Civil Bill map was his own property. In his counterclaim he pleaded that he sold the Plaintiffs the area outlined in red in the Land Registry map (being the same as the transfer map) and sought reliefs, including damages, for trespass.

41. It is abundantly clear from the pleadings that the issue between the parties in the Elwood/Gill litigation insofar as it related to the extent of Site 2 as transferred from the Defendant to the Plaintiffs in that litigation, related solely to the question whether the site extended to the north as far as the masonry stone wall as contended by the Plaintiffs or fell short of that line by some 4 meters as contended by the Defendant.

42. This view of the pleadings, if it needed to be supported, derives conclusive support, in my view, from the Order of the Circuit Court made by Judge Cyril Kelly (as he then was) on the 8th March 1993 which at paragraph 1 provides as follows:-

43. The matter was appealed by the Defendant and the High Court made an Order on the 9th March 1994 effectively dismissing the appeal. As already indicated, there are two versions of the High Court Order one of which does not and the other of which does include the sentence in the following version of paragraph 1 thereof which appears in italics.

44. As already indicated, the pleadings show that the issue on this aspect of the case was whether or not the Elwoods were entitled to the 4 metre piece of land to the north. That was the area in dispute, so identified in the Order in the Circuit Court. The same issue went on appeal to the High Court. The issue was determined in favour of the Plaintiffs and against the Defendant/Appellant. Paragraph 1 of the Court Order is clearly dealing with the same issue as was dealt with in paragraph 1 of the Circuit Court Order. The reference to the masonry stone wall as being the northern boundary of the site refers back to the northern boundary wall which had been referred to in the pleadings thereby indicating the northern extent of Site 2.

45. Even if no difficulties were to arise on the interpretation of this Order as now contended for by Counsel for the Defendant (and such difficulties do arise as will be seen shortly hereafter) it seems abundantly clear that the precise issue which was determined in the Elwood/Gill proceedings was whether the Elwoods were entitled to "the area in dispute before the Court" (to cite the Circuit Court Order) which was the same area in dispute before the High Court, namely the 4 metre strip immediately inside the northern masonry wall. There is absolutely no evidence or suggestion that other issues relating to the extent of Site 2 were determined by the High Court on appeal. Specifically, the question of who owned the 12 foot strip was not alluded to at any point in those proceedings and on any rational interpretation of the record, it is clear that neither the Circuit Court nor the High Court was concerned with this 12 foot strip at all.

46. If, contrary to the foregoing, it is now to be contended that the meaning and effect of paragraph 1 of the High Court Order is that the Defendant in those proceedings was entitled to the 12 foot strip (when no such claim was made by him in those proceedings) or that the Plaintiffs in those proceedings were held not to be entitled to the 12 foot strip (when no issue in relation to such entitlement or otherwise arose on the pleadings) then particular difficulties arise.

47. The area cited in the High Court Order is the area of the plot actually occupied by the Elwoods at the time of those proceedings. As is clear from the foregoing, this included the other 12 foot strip taken, so to speak, from Site 1.

48. The Defendant's contention in this case involves the submission, that the determination of the High Court went further than determining the area of Site 2 and the location of the northern boundary but in addition identified the site as having its eastern boundary 12 feet inside the area of Site 1 as registered in the Land Registry.

49. Can it seriously be contended that the true interpretation of the High Court Order is to declare the Elwoods entitled to part of the site registered in the name of James Egan? And this without any attendance or representation on the part of James Egan?

50. It may be said in response to this, however, that the Order may not be conclusive as between the Plaintiffs and James Egan as registered owner of Site 1. If it is so conclusive, then the meaning of the Order as now contended for by the Defendant is that James Egan has, by virtue of that Order, been deprived of a 12 foot strip along the western boundary of his registered title without being consulted or represented in the case leading to that Order. Alternatively, if that is not the case, then the meaning of the Order is that the Elwoods in that case must be deprived of that 12 foot strip. If that is the conclusion (and it must be either one or the other) then the site belonging to the Elwoods would not amount to 0.369 hectares (which, on the evidence before me, is the area of the site actually occupied by the Elwoods at the time of the Elwood/Gill proceedings and the area as declared by the Order itself).

51. Thus, the interpretation of the Order contended for by the Defendant involves either the most blatant and fundamental breach of the rules of natural justice, not to mention a complete overriding and ignoring of the provisions of Section 31(1) of the Registration of Title Act, on the one hand, or on the other an interpretation which is self-contradictory because the plot of ground referred to, as contended for by the Defendants in these proceedings, could not have the stated area of 0.369 hectares because this includes a 12 foot strip conclusively registered in the name of James Egan.

52. Faced with these difficulties, in my view the true interpretation of paragraph 1 of the High Court Order is that the Plaintiffs in those proceedings were entitled to a plot of ground bounded on the north by the masonry wall and having an area of 0.369 hectares. That declaration was sufficient to determine the only relevant issue established by the pleadings. There is no explanation as to how that determination was reached but clearly it is not necessary to the determination of that issue that there be a conclusion to the effect either that the Plaintiffs in those proceedings did not own the 12 foot strip or that the Defendant did.

53. With regard to the version of the High Court Order which includes the words "... the Land Registry map be amended to incorporate those measurements" , I have had evidence in the present proceedings from Frank Carroll, an official of the Land Registry, that they would not prepare a map from this particular measurement but would require a map to be furnished with dimensions. Indeed it is clear to a non-expert intelligent observer, that one could not prepare a map of Site 2 exclusively from the information contained in paragraph 1 of the Order of the High Court. Nor, indeed, does the Order require this to be done. It merely requires that the Land Registry map should be amended to incorporate those measurements. As I interpret the High Court Order, it simply requires that the Land Registry map of the plot of ground to which the Plaintiffs in those proceedings are entitled and which is bounded by the masonry wall to the north should incorporate a statement to the effect that the area thereof is 0.369 hectares.

54. Faced with the insuperable obstacles to which I have referred already, I do not think that the intention of this Order was to identify all four boundaries of the plot referred to in paragraph 1. It plainly does not do so; it is not necessary that such an interpretation be imposed on the Order for the determination of the only relevant issue arising in that case, and the attempt by the Defendant to place such a burden of interpretation on the High Court Order in the present case has led either to the self-contradiction of the Order on the one hand or on the other, to an entirely unacceptable and unnecessary violation of the principles of natural justice not to mention a head-on confrontation with the provisions of Section 31(1) of the Registration of Title Act, 1964.

55. Whilst on the foregoing view, therefore, the Court did not declare either of the parties in the Elwood/Gill litigation to be entitled to the 12 foot strip, it seems to me that it is open to the Plaintiffs in the present proceedings at the very least to contend for the probability that the Elwoods (now the Currans) are in fact entitled to the possession of the 12 foot strip, that the Court Order in the Elwood/Gill proceedings has nothing to say to that position, and that they, the Plaintiffs, are in possession thereof with the authority and with the consent of the owners of that strip. As between the Plaintiffs and the Defendant in these proceedings, it seems to me that the Defendant, as counter-claimant, has failed to discharge the onus of proof on him that on the balance of probability he is entitled to possession of the 12 foot strip. Accordingly, on this issue I refuse the Defendant the relief which he seeks in the counterclaim in relation to the 12 foot strip.