Dully v Athlone Town Stadium

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 October 2019
• Neutral Citation: [2019] IEHC 734
• Docket Number: [2017 No. 252 S.P.]
• Court: High Court
• Date: 15 October 2019

[2019] IEHC 734

THE HIGH COURT

Richard Humphreys

[2017 No. 252 S.P.]

BETWEEN

DAVID DULLY

PLAINTIFF

AND

ATHLONE TOWN STADIUM LIMITED, DECLAN MOLLOY, CIERAN TEMPLE AND PADDY MCCAUL

DEFENDANTS

AND

THE FOOTBALL ASSOCIATION OF IRELAND

NOTICE PARTY

(No. 6)

Amendment – Order – Liberty to file an affidavit – First defendant seeking to amend an order – Whether the first defendant ought to have liberty to file an affidavit of the second defendant for the purposes of that issue

Facts: Five previous judgments culminated in Dully v Athlone Town Stadium Ltd (No. 5) [2018] IEHC 704, which involved an award of damages in favour of the plaintiff, Mr Dully, against the first defendant, Athlone Town Stadium Ltd. That defendant appealed a number of orders in the proceedings to the Court of Appeal. Following filing of the appeal, the Court of Appeal made an order requiring the appellant to give security for costs and requiring €50,000 to be lodged in court, which was done. Subsequent to the award of damages against the first defendant in the High Court, the plaintiff sought to have the directors of the first defendant made liable for the award of damages and costs. That action was purportedly compromised on 23rd May, 2019, and an order was made on foot of that, although there were some infelicities in the wording of the order. The company brought a motion dated 13th September, 2019, seeking to vacate the order of 23rd May, 2019, and also seeking a declaration that the first defendant is not bound by the undertakings in the agreed statement to the court given on that date. In an affidavit filed on 7th October, 2019, he gave notice of an intention to extend the relief sought, in order firstly to amend the order of 23rd May, 2019 to reflect the reality that the appropriate parties were the three directors rather than the company and secondly, seeking an order directing that the plaintiff’s solicitor repay the €50,000 to the Accountant of the High Court or lodge €50,000 to the credit of the appeal. Concerning the application to amend the order (in effect under the slip rule), Humphreys J gave the company liberty to file an affidavit of the second defendant, Mr Molloy, of 15th October, 2019 for the purposes of that issue. Insofar as it might be relied on subsequently for the substantive relief of setting the order aside, the liberty to file it was expressly on the basis that the door would be left open to the other parties to reply as appropriate.

Held by Humphreys J that the appropriate order was: (i) an order that the first defendant have liberty to file the affidavit of Mr Molloy of 15th October, 2019, it being understood that that had been received for purposes only in relation to the slip rule application and that the other parties would have the opportunity to reply to it should they so require in relation to the other reliefs sought by the first defendant; (ii) an order declaring that Prospect Law Solicitors had ceased to act for the second defendant; and (iii) an order amending the order of 23rd May, 2019 under the slip rule (O. 28 r. 11 of the Rules of the Superior Courts 1986) in the terms of the draft order furnished to the parties.

Humphreys J held that the matter would be adjourned until 21st October, 2019 for mention, with the company to have liberty in the meantime to put in a further affidavit exhibiting the email of 15th May, 2019 from Mr McNelis and setting out any further evidence he so wished in support of his application to set aside the order of 23rd May, 2019. Secondly, because of the need to resolve any uncertainty about the position of the third and fourth defendants, Mr Temple and Mr McCaul, Humphreys J directed the third and fourth defendants to inform Prospect Law Solicitors before 21st October, 2019 whether they wished those solicitors to continue to act on their behalf and if not, to attend in person at 11am on 21st October, 2019 to enable any necessary consequential orders to be made without further delay.

Matter adjourned.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of October, 2019

1 As will become clear, there is a slightly convoluted constellation of dramatis personae in the present application. I have received helpful submissions from Mr. Kieran Collins B.L. for the plaintiff, from Mr. Michael Forde S.C. (with Mr. Laurence Masterson B.L.) for the first-named defendant, Athlone Town Stadium Ltd., and from Mr. Cormac Ó Dúlacháin S.C. who acted initially for the second, third and fourth-named defendants, the directors of the first-named defendant. However, the second-named defendant, Mr. Declan Molloy, indicated during the hearing that he wanted Prospect Law Solicitors, who instruct Mr. Ó Dúlacháin, to cease to act for him, so I made that order without objection and Mr. Molloy thereafter represented himself.

2 There are five previous judgments in this matter culminating in Dully v. Athlone...