Smyth v Tunney (No. 2)

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 08 April 1997
• Neutral Citation: 1997 WJSC-SC 3738
• Docket Number: (418/423-89 + 60/90)
• Court: Supreme Court
• Date: 08 April 1997

1997 WJSC-SC 3738

THE SUPREME COURT

O'Flaherty J.,

Barrington J.,

Keane J.,

(418/423-89 + 60/90)

SMYTH v. TUNNEY

AN CH ÚIRT UACHTARACH

PHILIP SMYTH AND GENPORT LIMITED

Plaintiffs/Appellants

.V.

HUGH TUNNEY, CROFTER PROPERTIES LIMITED, GERALD B. COULTER AND CAROLINE DEVINE

Defendants/Respondents

Citations:

REPORT OF THE TRIBUNAL OF ENQUIRY INTO THE BEEF PROCESSING INDUSTRY (1994)

MURPHY V MIN DEFENCE 1991 IR 161

FITZGERALD V KENNY 1994 2 IR 383

TRIBUNAL OF ENQUIRIES (EVIDENCE) ACT 1921

RSC O.58

Synopsis:

Contract Law

Application to adduce additional evidence; long running legal battle concerning lease of Dublin Hotel; attempted settlement; dispute as to terms had been subject of case before High Court; whether certain findings made in earlier ejectment proceedings and finding made by Beef Tribunal should be admitted; admissibility of similar fact evidence in civil trials. - Held : application dismissed; matters would not have affected decision of trial judge in basic matter nor should appeal court consider matter further. - (Supreme Court; O'Flaherty, Barrington, Keane JJ. - 08/04/97)

|Smyth and Genport Ltd v Tunney, Crofter Properties Ltd & ors.|

1 Judgment (ex-tempore) of the Court delivered on the 8th day of April, 1997, by O'Flaherty J.

2 At the foundation of this multitude of litigation is a question of what transpired between the two main players, Mr. Smyth and Mr. Tunney on the 24th October, 1988, at the Gresham Hotel, Dublin. At this stage there were in place ejectment proceedings brought by Mr. Tunney (I simplify the matter by leaving out reference to his company for this purpose) and there was an attempt made to compromise these proceedings and it was suggested on Mr. Smyth's side that they had been compromised for the payment by him of a sum of £150,000. That was to do with a valuation of various chattels in the premises in question namely, Sachs Hotel.

3 The opposite stance was taken by Mr. Tunney. What was set forth in the document, namely £250,000, was the figure they had agreed between them - except he was contesting that there was a concluded agreement between the parties. He was putting forward that this was a tentative figure but that he had certainly not agreed a figure of £150,000.

4 There were allegations of wrongdoing made by each against the other in the course of a hearing before Mr. Justice Murphy, which occupied seventeen days.

5 The essential matter on which the learned trial judge reached a conclusion was that Mr. Tunney had always taken the stance that these chattels and so forth in the premises were worth in the region of £400,000, and not less, perhaps more. He could not have come down at one fell swoop, so to speak, from £400,000 to £150,000. The judge based his judgment on this inference. He made all sorts of subsidiary findings about what had been verbally agreed between the parties but that the figure of £250,000 was right and it was not a forgery was of the essence of his finding.

6 At this time what we are concerned with is an application brought on behalf of Mr. Smyth to lay before us two further matters, namely the findings that Mr. Justice McCracken made in the High Court in the ejectment proceedings in his judgment of the 15th March, 1996, after a 70 day hearing. He dismissed these proceedings brought by Mr. Tunney's company. In the course of his judgment he did not find that the value of the chattels amounted to £400,000 - indeed, he did not find that they came to very much - or that they had been removed from the premises.

7 Mr. Gallagher invites us to build on that and to say if that finding was there when Mr. Justice Murphy came to give his judgment then he might have reached a different conclusion. The trouble about that is this: Mr. Tunney at all times had taken the stance that these chattels were worth in the region of £400,000. While at the hearing before Mr. Justice Murphy his evidence was rejected in relation to a suite of furniture that had ended up at Casiebawn Castle, Co. Sligo, and there was some doubt cast as well on the silver properties of certain cutlery and so forth, nonetheless, that was a stance he never departed from and when he went in before Mr. Justice McCracken it was the same story. So it is hard to see how that could possibly have affected the trial judge, Mr. Justice Murphy, in the critical finding that he made.

8 Indeed, Mr. Gallagher has submitted...