Dully v Athlone Town Stadium Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 December 2019
• Neutral Citation: [2019] IEHC 892
• Docket Number: [2017 No. 252 S.P.]
• Court: High Court
• Date: 06 December 2019

[2019] IEHC 892

THE HIGH COURT

Richard Humphreys

[2017 No. 252 S.P.]

BETWEEN

DAVID DULLY

PLAINTIFF

AND

ATHLONE TOWN STADIUM LIMITED, DECLAN MOLLOY, KEIRAN TEMPLE

AND

PADDY MCCAUL

DEFENDANTS

AND

THE FOOTBALL ASSOCIATION OF IRELAND

NOTICE PARTY

(NO. 8)

Oral applications – Declaratory relief – Payments – First defendant seeking an order vacating the order purportedly requiring the first defendant to withdraw appeals – Whether the first defendant’s application ought to be allowed

Facts: This case was ostensibly settled on 23rd May, 2019. The first defendant, Athlone Town Stadium Ltd, made the following applications: (i) relief 1 in a motion of September, 2019 seeking an order vacating the order purportedly requiring the first defendant to withdraw the appeals; (ii) relief 2 in the motion of September, 2019 seeking a “declaration” that the first defendant is not bound by the undertakings on the second page of the agreed statement to the court; (iii) relief 1, canvassed in an affidavit of October, 2019 relating to an amendment which had already been dealt with; (iv) relief 2 in the affidavit of October, 2019 seeking to direct the solicitors for the plaintiff, Mr Dully, to promptly repay the monies previously lodged in court, or if they have been distributed, to lodge €50,000 to the credit of the appeal; (v) a motion of November, 2019 seeking relief for the plaintiff and/or the fourth defendant, Mr McCaul, to provide a full explanation as to the payment out of the monies lodged; and (vi) oral applications in the course of the hearing. During the hearing, the first defendant, in opening the motion, asked for costs of the hearing of 4th November, 2019. Given the belated nature of that application, that was left over until the finalisation of his other applications. He also asked for permission to withdraw his legal submissions. The High Court (Humphreys J) was reluctant to allow that unless any replacement submission was being proffered in their stead, and also left that over. Amended legal submissions were finally produced on Day 4 of the hearing, just as the first defendant was concluding its submissions. As a final afterthought the first defendant said that it wanted to put in yet a further revised version but Humphreys J saw no necessity for or benefit in that. The first defendant also sought to have witnesses cross-examined in two separate tranches, first on the issue of withdrawal of the monies and secondly, on the merits of the dispute. Humphreys J rejected that application as it would lead only to procedural complication and yet further waste of time. As the hearing continued the first defendant made a number of other applications.

Humphreys J, during the hearing, allowed the first defendant to amend its motion to delete the words “the 2nd page of” so as to cover the undertakings on both pages of the agreed statement. Humphreys J dispensed with the requirement to serve an amended motion paper.

Humphreys J dismissed the first defendant’s applications including the motion as so amended in their entirety.

Applications refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of December, 2019

1 This case was ostensibly settled on 23rd May, 2019. However, the first and second-named defendants are now seeking to unravel the settlement. That attempt has involved a number of unhappy features, perhaps too many to enumerate; but the more striking ones are as follows:

(i). The undesirable spectacle of unfounded aspersions being cast against a wide range of persons. The high point of that process was making a submission as to fraud by two of the directors without having put that to the director who gave evidence. Shortly after that allegation was launched, as soon as it was queried by the court it was rapidly withdrawn.

(ii). Aspersions were cast against a wide range of professionals without any expert or other evidence to support them.

(iii). The principal application with which we are now concerned was originally based on two short grounds set out in a notice of motion, which set out two reasons as to why the company was allegedly not bound by the settlement, but as it was put by counsel for the fourth-named defendant, “day by day the case has grown”. We have now reached an unendingly elaborate series of points being initiated, one more meritless than the next. In a probably futile attempt to bring some comprehensibility to the case, I will set out later in this judgment the 21 separate headings under which one can classify the submissions that were made on behalf of the first-named defendant.

(iv). Materials provided by the first-named defendant were in considerable disarray and were subjected to a process of almost continuous revision. Perhaps the low point was that, after counsel for that defendant finished his oral submission, and after the second named defendant had made submissions, we had got to at about 4.40 pm on Day 4 of the hearing, at which point counsel for the first named defendant said that he was in the process of putting in yet another slightly adjusted written submission for which permission had not been sought let alone granted.

(v). More generally, the first-named defendant has engaged in a campaign of procedural obfuscation, bringing evolving and mutating applications together with virtually continuous applications for adjournments, sometimes several times a day. Many of those applications were made on the tendentious basis of demanding “fairness”, a process that seems to be entirely one-way as far as the first-named defendant is concerned. The impression generated at the time (an impression that somehow persists in retrospect) seemed to be that 21 points of law were not enough for the first-named defendant; and that, in addition, appeal points had to be generated on an ongoing basis as a kind of insurance policy.

(vi). Finally, but importantly from a practical point of view, the first-named defendant has conducted the case in a manner utterly oblivious to the other demands on the court. The only time estimate given in advance on behalf of the first-named defendant was that the application was unsuitable for a Monday. The application was then listed for a full day. But, once it eventually got going, it has run for a full week. Had I not afforded the parties the benefit of early starts, shortened lunch adjournments and late sittings, the matter would have comfortably drifted into a second week, and maybe the momentum thereby generated would have propelled it even further.

2 I have received assistance from the parties as follows:

(i). on behalf of the plaintiff from Mr. Kieran Collins B.L.; and without taking away from other counsel in any way I would commend Mr. Collins on his admirably surgical and focused cross-examinations and submissions;

(ii). on behalf of the first-named defendant and moving party in the motions by Mr. Michael Forde S.C. (with Mr. Laurence Masterson B.L.);

(iii). by Mr. Molloy, the second-named defendant, in person; I am also grateful for Mr. Molloy in his contribution to the present motion for being commendably succinct;

(iv). there was no appearance by the third-named defendant;

(v). on behalf of the fourth-named defendant by Mr. Cormac Ó Dúlacháin S.C.;

(vi). the notice party has not appeared at any stage.

First-named defendant's medley of applications

3 A profusion of applications emanated from the first-named defendant. This legal cornucopia can be summarised as follows:

(i). Relief 1 in a motion of September, 2019: This sought an order vacating the order purportedly requiring the first-named defendant to withdraw the appeals. That was an error in the order because that outcome was not in fact ordered by the court, so that has already been dealt with on 15th October, 2019 and that part of the order has already been deleted. Nothing further arises under that heading.

(ii). Relief 2 in motion of September, 2019: This seeks a “declaration” that the first-named defendant is not bound by the undertakings on the second page of the agreed statement to the court. A declaration sought by a defendant is not normally the procedurally correct approach in this context because the proceedings were instituted by special summons. However, at the outset I decided to entertain the application here because it seemed the only convenient way to address the real issues in the proceedings. As noted below, I subsequently allowed Mr. Forde to amend the relief to encompass the undertakings on the first page as well.

(iii). Relief 1, canvassed in an affidavit of October, 2019: That relates to an amendment which has already been dealt with.

(iv). Relief 2 in affidavit of October, 2019: The second paragraph of Mr. McNelis’ affidavit seeks to direct the plaintiff's solicitors to promptly repay the monies previously lodged in court, or if they have been distributed, to lodge €50,000 to the credit of the appeal. No point was made by Mr. Ó Dúlacháin about this relief being sought in an affidavit rather than a formal notice of motion but in any event it was not pursued as will be seen below.

(v). Motion of November, 2019: This sought relief for the plaintiff and/or fourth-named defendant to provide a full explanation as to the payment out of the monies lodged. That was not pursued either, as detailed further below.

(vi). Oral applications in the course of the hearing: During the hearing, Mr. Forde, in opening the motion, asked for costs of the hearing of 4th November, 2019. Given the belated nature of that application, that was left over until the finalisation of his other applications. He also asked for permission to withdraw his legal submissions. I was reluctant to allow that unless any replacement submission was being proffered in their stead, and also left that over. Amended legal submissions were finally produced on Day 4 of the hearing, just as Mr. Forde was concluding his submissions. As noted above, as a final...