Bergin v Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 19 June 2015
• Neutral Citation: [2015] IEHC 594
• Judgment citation (vLex): [2015] 6 JIC 1908
• Court: High Court
• Date: 19 June 2015

[2015] IEHC 594

THE HIGH COURT

[No. 4845S/2009]

Bergin v Walsh

BETWEEN/

PASCHAL BERGIN

PLAINTIFF

AND

GEORGE WALSH, SAMUEL WALSH AND MERVYN WALSH

DEFENDANTS

Contract – Breach of contract – Recovery of money – Summary summons – Fraud – Damages – Qunatum meruit – Wrongful conduct

Facts: Following the setting aside of an order for default judgment obtained by the plaintiff against the defendants to recover the amount due from the defendants for the services rendered by the plaintiff to the defendants in relation to the management of certain properties of the defendants, the plaintiff now sought an order by way of summary summons to recover the said amount. The plaintiff alleged breach of contract on the part of the defendants due to their non-commitment to pay the said amount to the plaintiff. The defendants asserted that the relevant agreement and e-mails relied upon by the plaintiff were false and fabricated.

Mr. Justice Gerard Hogan granted orders to the plaintiff to recover the amount due for the services rendered by the plaintiff and held that the plaintiff would be entitled for a commission on the sale of certain properties. The Court, however, refused to grant orders to the plaintiff to recover monies where there was lack of clear documentary proof in relation to the disposal of other properties. The Court observed that the e-mails and the alleged agreement relied on by the plaintiff were false and forged by the plaintiff. The Court, however, held that even though the conduct of the plaintiff was wrongful, yet he had a legal right in common law generally to recover the amount of money or an award based on qunatum meruit where the breach of contract had been established. The Court held that though the Courts were vested with discretionary powers to dismiss the fraudulent claims brought by the plaintiff, yet they were not intended to disturb the common law actions instituted to enforce the legal rights. The Court held that the remedy of qunatum meruit applied to the cases where the services were rendered by a party on the basis of mutual understanding of the parties of an obligation to pay, which could be tacit or inferred from the context. The Court held that the plaintiff would not be entitled for finder's fee and work done in relation to the French tax affairs. The Court granted an order to the defendants to set off the payment made by the plaintiff to certain attorneys in his own right against awards made in the present judgment.

Index to the Judgment

	Paragraph Nos.
Part I: Introduction	1-3
Part II: The parties and the witnesses	4-45
Part III: The conduct of the litigation	46-55
Part IV: The evidence of the witnesses	56
Paschal Bergin	57-92
The November 2006 settlement	93-96
The proposed acquisition of the French properties	97-116
The Wells property, Co. Wexford	117-119
The Vee Contract	120
The fees claimed by Mr. Bergin	121-123
2009 and the sundering of the friendship	124-134
Myles Garland	135-136

Timothy Mceniry	137-138
Ian Skeffineton	139-140
William Brennan	141
Paul Kelly	142-145
Mervyn Walsh	146-165
The November 2006 agreement	166
The purchase of the French properties	167-169
The contract for the Vee	170
The attempts to raise finance in 2007	171-172
The events of 2009	173-178
Paraic Muldowney	179-184
Maurice Mason	185-186
Dr. David Marrani	187-204
Mary McCarthy	205-208
Liam Grainger	209-211
Anthony O'Gorman	212-215
Francis Crossan	216-218
Michael Walsh	219-223
Jacob Mucheke	224
Violet Walsh	225-232
Samuel Walsh	233-237
The gold transaction	238-248
The proposed purchase of the Wells Estate	249-250
George Walsh	251-265
The proposed development at Saint-Fargeau	266-267

The proposed development at Angers	268-270
The November 2006 settlement agreement	271
The December 2009 email	272-276
Part V: The method of service of the defendants	277
The manner in which the defendants were served	278-285
Part VI: The allegations of fraud	286
Allegations of fraud: general principles	287-292
The December 2009 email	293-310
Whether the November 2006 settlement agreement was authentic?	311-333
What conclusions should flow from these findings? Part VII: Other Irish issues to be determined	334-341
The approach of the courts to the evidential difficulties and principles of quantum meruit	342-348
The payment of the deposit of €46,000 to the auctioneering firm Norths	349-356
The Ballyhogue site	357-364
The Tramore Credit Union payment	365-368
The Moyne site	369-370
The purchase of the motor car	371-373
The purchase of No. 9 Westbury Woods	374-379
The Rinuccini site at Kilminchy	380-382
Was the plaintiff a de facto partner with Mervyn Walsh?	383-390
The proposed acquisition of the Wells Estate	391-395
Part VIII: Two specific defences raised by Mr. Mervyn Walsh	396-400
Whether the building contract for the house at the Vee, Co.	401-412

Waterford is authentic?
The cheque payments made by Event Horizon to Mr. Bergin	413-414
Cheque payments between 2005 and 2006	415
The payment of 13th February 2005 to Wexford County Council	416
"Loan" to Paschal Bergin on 7th March 2005 and 28th April 2005	417-419
Payment to Christy O'Malley dated 28th February 2005	420-421
Payment of €100,000 of 20th March 2007 (sale of motor vehicle)	422-423
Payment of 26th February 2006 (Noel O'Sullivan)	424-425
Payment of 3rd August 2006 (Advance to Paschal Bergin)	426-427
Other payments from 2005	428
The cheques for under €10,000	429-430
The cheques for over €10,000	431-432
The O'Hare, O'Connor, Walshe cheque	433-436
Payment of €100,000 on 10 May 2007 (Cork property)	437-440
Three payments of €100,000 on 18th October 2007, 27th October 2007 and 15th November 2007 (Vince Bergin and Glenn Dawson)	441-447
Payments to Laois County Council	448-450
Three payments of €100,000 on 6th July 2007, 5th March 2008 and 28th October 2008 (share buy back)	451-453
The payment of €150,000 by Sherside in September 2007	454-455
Part IX: Acquisition of French properties and residency in Monaco	456
Whether the Walshs had tax liabilities which needed to be resolved prior to the acquisition of any French properties	457-467
Chateau Meillard	468-471
Saint-Fargeau	472-474

The development at 21 Bouleyard Foch, Angers	475-482
The trips to Luxembourg	483-484
The communications between Mr. Shevet and Mr. Bergin	485-496
The Monaco residency	497-507
Conclusions regarding the acquisition of the French properties and the Monaco residency	508-513
Part X: Overall Conclusions	514-535

Part I - Introduction

1 1. This is an action to recover monies which the plaintiff claims are due to him from the defendants in respect of a variety of services which he rendered to them between 2003 and 2009. The plaintiff is an accountant and a financial adviser and the three defendants are brothers who originally hail from Wexford. The first two defendants, George Walsh and Samuel Walsh, now own and reside at a very substantial farm and chateau in Meillard in the centre of France. The third defendant, Mervyn Walsh, now resides and works in Kenya.

2 2. The plaintiff was first introduced to the Walsh family when a farm belonging to Samuel Walsh was about to be sold by way of auction in September 2003. There is no doubt but that Mr. Bergin had significant contact and engagement with the three defendants over the six years, although this was especially marked in the case of the third defendant, Mervyn Walsh. Beyond that there is precious little agreement between the parties. With the exception of a document from November 2006 and an email from December 2009 (the authenticity of which are both fiercely in dispute), it is agreed that there is no written record of any arrangement between the parties regarding payment for services, fees and commission.

3 3. It is accordingly necessary for the Court to resolve multiple disputes between the parties in respect of what happened at discreet stages of eventful and hectic lives between 2003 and 2009. Before considering these questions, it is necessary first to introduce and to describe the witnesses and others who played an important role in these events. I then propose to give an outline summary of the critical events.

Part II - The parties and the witnesses

4 4. The following is a summary by way of introduction of the background of the major witnesses, entities and the other participants in these events. All of these participants gave evidence, save where this is expressly indicated.

5 5. Arrowdell Ltd. (Sheehy Motors): Sheehy Motors are a garage based in Carlow which was involved in the sale and purchase of a Mercedes motor vehicle involving Mr. Pascal Bergin and Mr. Mervyn Walsh in March 2006.

6 6. Pascal Bergin: An accountant and "company doctor". He is the plaintiff in these proceedings. His chance introduction to the Walsh family (or, at least, members of the Walsh family) in...