McGivern v Kelly
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 22 February 2008 |
| Neutral Citation | [2008] IEHC 58 |
| Judgment citation (vLex) | [2008] 2 JIC 2201 |
| Docket Number | [No. 4313 P/2007] |
| Court | High Court |
| Date | 22 February 2008 |
[2008] IEHC 58
THE HIGH COURT
COMMERCIAL
AND
MCCAULEY v MIN FOR POST 1966 IR 345
R v CARROLL 1744 1 WILS KB 75
SMITH v LAKEMAN 1856 26 LJ(NS) CH 306
MULOCK, RE, EX PARTE CHETWYND 1864 33 LJPM&A 205
SHARLAND v SHARLAND 1885 1 TLR 492
PRACTICE AND PROCEDURE
Contempt of court
Criminal contempt of court - Right of access to courts - Threat - Whether threat obstructed plaintiff's access to courts - Macauley v Minister for Posts and Telegraphs [1966] IR 345, R v Carroll (1744) 1 Wils 75, Smith v Lakeman (1856) 2 LJCh 305, Re Mulock, ex parte Chetwynd (1864) 33 LJPM & A 205, Sharland v Sharland (1885) 1 TXR 492 and Pavlova v Harvey (1914) Times, 27th November, 1914 applied - Payment to charity ordered (2007/4313P & 85COM - Kelly J - 22/02/2008) [2008] IEHC 58
McGivern v Kelly
Facts: An email was sent to the plaintiff by the son of the defendant in the course of proceedings before the High Court, where threats were made to the plaintiff. The Court characterised the email as a contempt of court. The issue arose as to the consequences of the email. The proceedings related to a share purchase agreement dispute. An apology was made in writing for the email and under oath viva voce.
Held by Kelly J. that the Court would not contact the Director of Public Prosecutions. Eur20,000 would be paid to a nominated charity and the defendant would be liable for the costs of the third day of the action which had been devoted to the issues in the judgment.
Reporter: E.F.
delivered the 22nd day of February, 2008.
This ruling concerns an email communication sent to the plaintiff by Simon Kelly, a son of the defendant, during the currency of these proceedings. The contents of the email were described by the defendants own counsel as "shameful". He was correct in that description.
I was and am of the view that the sending of the email was a contempt of court. Neither the defendant or Simon Kelly sought to contend otherwise.
This judgment deals with that issue and the consequences for Simon Kelly.
These proceedings commenced on 6th June, 2007. They arise out of a share purchase agreement dated 6th November, 2006. Under that agreement the plaintiff agreed to sell to the defendant shares owned by the plaintiff in each of four companies which operate the 'Mango' franchise for ladies clothing. The agreement also provided for the release of the plaintiff from certain guarantees and indemnities entered into by him in respect of debts and liabilities of those companies.
On 25th June, 2007 the proceedings were transferred to the Commercial List and appropriate directions were given in respect of delivery of pleadings and discovery.
On 8th October, 2007 the trial date of 5th February, 2008 was assigned to the case.
The case began on the date assigned and remained at hearing for two days. On the morning of the third day of the trial it was announced that a settlement had been reached between the parties. I was asked to, and did in fact, receive and file those terms of settlement.
The plaintiff is an insurance broker. He owns the brokerage McGivern Flynn which he began in 1982. In addition, he is the managing director of a business called Trade Credit Brokers which is a specialist credit insurance business owned by IFG Plc. He has a number of personal business interests, owns properties and equities and has a number of property and business interests in common with the defendant.
The defendant was described by the plaintiff as a "very skilled property man". He played little, if any, part in the transaction the subject matter of these proceedings.
Virtually all of the dealings which the plaintiff had concerning the agreement in suit were conducted with the defendant's son, Simon Kelly. This is apparently quite a normal way for the defendant to conduct his property and business affairs.
The defendant delivered his defence to these proceedings on the 5th of July, 2007. In the early hours of that day Simon Kelly sent the following email to the plaintiff:
"Hi Hugh,"
I had the pleasure of meeting my S.C. and preparing the defence against your bullshit claim for the 1m. We agreed flexibility on the repayment schedule and you are now breaking this agreement. I appreciate that the Belfast situation may have caused you discomfort. It is a shit lease and one of your worst deals. Mango continually blame you for this.
If you continue this action regarding Mango, I am going to be forced to seek to cause you loss and pain in other business arrangements.
There are plenty of places that I can hurt you and you can hurt me. If we go this route, other partners of yours are going to be pulled in such as Mark Bourke in IFG. The actions will be very public and as an executive of a PLC, your position may become difficult. Joe may feel that all of this litigation may distract you from your day job.
In the very near term this dispute is going to move beyond the bounds of a commercial claim and become personal. If this happens, I do not care what cost I will bear to make you regret taking this action. You may win in court but it will be to your eternal regret.
Have a think about all the things we have done over the years, and exercise your mind to see exposure for yourself Then decide if you really want to chase this. You have made a lot of money from our overall relationship and we have made very little. Maybe you are smart or maybe you are a crook.
Once we move beyond Thursday, real legal costs are going to mount and I will not be paying any of yours in a settlement. I will be seeking mine from you and the claim is bullshit.
now have no interest in meeting you again. David Kelly is available to meet you if you think there may be a better solution.
Otherwise, see you in court on the 16th and beyond, and probably in the papers a lot more.
Simon Kelly".
The plaintiff gave evidence that the Mark Bourke referred to in the third paragraph of the email is effectively his employer whilst the "Joe" referred to in the final sentence of that paragraph is the Chairman of the company in question. He also gave evidence that the threat of causing him loss and pain in other business arrangements had been carried into effect. I am not in a position to make any adjudication on this aspect of the matter because the plaintiff's cross examination had not...
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