It will be seen that this document contains a default clause at Clause 6. “Clause 6” and “Clause 7” are emphasised for reasons now explained.
17. Michael and Thomas Butler contend that the ‘Clause 6’, set out above in heavy type, was never part of the agreement. In fact, they say, the correct “Clause 6” of the agreement, in fact, contains what is set out as “Clause 7” in the quotation above, so that, on their account, the correct “Clause 6” is simply to the effect that the agreement was in “full and final settlement of all claims arising out of the proceedings”.
18. It is clear one or other of the parties is not only wrong, but very wrong. It is hard to envisage that whatever occurred was by mistake or accident.
19. Mr. O’Shea’s case is that Mr. O’Driscoll settled his proceedings in similar, but not identical, terms to those agreed with himself, and as such, all of the directors and shareholders of Bosod Limited were involved in the settlement. He says that, in accordance with Clause 1, he resigned with immediate effect from the board of Bosod Limited, and on the 26th February, 2008 transferred his shareholding in Bosod Limited to the Butlers, and that, thereafter, they (“the Butlers”), enjoyed complete ownership and control of that company. It is clear that the personal appellants were, and are, dissatisfied with whatever occurred in Dundalk. If Mr. O’Shea’s account is accepted, it would appear that, although the Butlers and their company were plaintiffs, the net result was that, on foot of the agreement, they ended up consenting that they owed in excess of €1 million to Mr. O’Shea.
Matters Not Disputed in the Appeal
20. A number of matters seem not in dispute in the appeal before this Court. These include that, subsequent to the listing in Dundalk, and following an application made to the High Court by Mr. Crohan O’Shea on the 10th June, 2008, for judgment in the sum of €100,000, the Butler appellants transferred payment to Mr. O’Shea in that amount of the 11th June, 2008. Nor is it apparently disputed that a further payment was made by these appellants on the 8th September, 2008, in the sum of €233,834. It appears a further payment was made in the sum of €112,334 on the 25th September, 2008. On this basis, the Butlers appear to have paid the sum of €446,168 to Crohan O’Shea.
Proceedings Before McGovern J. on the 12th May, 2009
21. Against the background that these payments are not, apparently, in dispute, Michael and Thomas Butler now contend that subsequent enforcement proceedings orders were nonetheless invalid. The sums discharged left remaining the sum of €653,832. A hearing took place before the High Court (McGovern J.) in Dublin on the 12th May, 2009. The court granted judgment in the outstanding sum of €653,832.
22. As outlined earlier, the appellants now contend that, in fact, no court had jurisdiction to deal with any order made by the High Court in Dundalk on the 11th February, 2008, or any order dependent on the disputed “default clause”. They say McGovern J. gave effect to a limited company “illegal settlement; that he should have adjourned the application to allow Bosod Limited, (referred to below), to apply to court to set aside the terms of the settlement; and that the order erroneously referred to “Clarke J.” as the judge. However, it appears that the judgment and order made by McGovern J. were made in different circumstances. The appellants do not say that they raised any question regarding the absence of the default clause before McGovern J. in 2009. At various stages contentions have been raised as to whether the denied agreement was in breach of statutory requirements under the Partnership Act, 1890, and/or in breach of ss. 45 and 60 of the Companies Act, 1963. But these issues were not seriously pursued in the oral submissions to this Court. Bosod Limited is, in any case, dissolved, and has no locus standi. One further allegation is made, to the effect that Mr. O’Shea made a series of false declarations in the various procedural steps to enforce the judgment. One can infer that these criticisms again relate to his averments, to the effect that money was due and owing, and that the settlement was valid.
The Application to Amend McGovern J.’s Order 24/26 February, 2010
23. An application was made on 24th February, 2010 to McGovern J. This was to amend the name of the judge granting the order to himself, rather than “Clarke J.”, as appeared on the order. McGovern J. granted the application. As mentioned earlier, this order is dealt with later in this judgment.
Well Charging Proceedings (Dunne J.)
24. Crohan O’Shea contends that, subsequent to the payments outlined earlier, no further sums were paid on foot of the agreement. As a consequence, he brought proceedings to enforce the judgment. A special summons was issued on the 20th June, 2010. Thereafter, the matter came before Dunne J. in the High Court on a number of occasions.
25. Mr. Michael Butler says that the fact that Mr. O’Shea brought proceedings by way of special summons is, itself, evidence of a “cover-up”, and that, in normal course, would simply have sued on foot of the settlement. This submission is not easy to follow.
26. It may be inferred from the respondents’ submissions that the well charging proceedings were adjourned on a number of occasions, over a period of months, and the appellants submitted a number of affidavits.
27. The primary defence claim made before the High Court (Dunne J.) was that the settlement should be set aside, as it breached s.60 of the Companies Act, 1963, as it then stood. This statutory provision, as relied on then, might, if shown to have been made, render it unlawful for a company to give, whether directly or indirectly, whether by means of a loan, guarantee, the provision of security, or otherwise, any financial assistance for the purpose of, or in connection with, a purchase or subscription made, or to be made by any person, of or for any shares in the company, or where the company is a subsidiary company in its holding company. It is further provided that any transaction in breach of this section is voidable at the instance of the company (that is Bosod Limited), against any person, (whether a party to the transaction or not), who had notice of the facts which constitute such a breach. (Section 60, Sub-Section 14, the then Companies Act, 1963). It is clear that during the hearings before Dunne J., the question of having the settlement set aside was raised by the appellants. The Butlers were again represented by counsel. The Court is informed that counsel acting on the Butlers’ behalf accepted that, if they wished to have the settlement set aside, they would have to initiate proceedings for that purpose. By that time, however, Bosod had been struck off the Companies Register for failing to file accounts.
28. Before Dunne J., a solicitor then acting on behalf of the Butlers, Ms. Tara Anne Byrne, of Daniel J. Byrne & Co., deposed that she had been advised by the Butlers, as the remaining shareholders and directors of Bosod, that, as soon as possible after the reinstatement of that company on the Register, they would bring proceedings to have the terms of the settlement agreement set aside for breach of s.60 of the Companies Act, 1963.
29. It appears from the respondent’s written submissions that questions regarding the Dundalk settlement first emerged in court when the matter again came before Dunne J. on the 20th December, 2010. It will be noted that this was some 2½ years after the listing in Dundalk. The Court has been informed that Dunne J. requested the Central Office to furnish her with a copy of the file. Having reviewed the file, this Court has been informed that she was satisfied that the “default clause settlement agreement” was in order, and that this was the basis upon which the respondent had obtained judgment.
30. It appears that, while the proceedings were pending before Dunne J., she granted at least one adjournment to allow application to be made to this Court for a stay on McGovern J.’s order for judgment. However, this Court dismissed the application for a stay on the 10th December, 2010, and awarded costs of the motion to the respondent, Crohan O’Shea. Ultimately, Dunne J. was satisfied that, as this Court had refused an application for a stay on McGovern J.’s order for judgment, and in circumstances where there were no other procedural issues arising regarding the well charging proceedings, that an order should be made declaring the lands were well charged. An order was made for the sale of the property, with a stay of 3 months. There has been no legal determination that there was any breach of s.60 of the Companies Act, 1963.
31. In later proceedings before the High Court, orders were granted for a part sale of the properties that had been well charged. The courts have subsequently approved the sale of lands to a purchaser in the sum of €337,000. It appears the sale of the houses is still ongoing, and the issue remains in the Examiner’s List.
32. The essential challenge to the orders made by Dunne J. are that she erred in making the well charging order where, what is termed the “grounding judgment” was under appeal; where the “grounding judgment” was under investigation by the Central Office of the High Court; and where the judgment for the outstanding sum was “uncertain”. Again, it is clear that what is in issue are not the routine procedural steps in the enforcement of the judgment, but rather, what occurred on the day of the hearing in the Dundalk High Court. While other issues were raised in the High Court, the focus of the appeal is entirely centred on what happened in Dundalk.
Bosod v. O’Shea & O’Driscoll
33. By plenary summons, issued on the 25th February, 2011, Bosod Limited, by then restored to the Register, did issue separate proceedings against Crohan O’Shea and Thomas O’Driscoll (Record No. 2011/1877P). The gist of the proceedings was to challenge the settlement agreement of the 11th February, 2008, on the grounds of illegality. This Court has been informed that the only subsequent steps taken in those proceedings, initiated now 6 years ago, was on application by Bosod’s then solicitors, Daniel J. Byrne & Co., to come off record. This order was granted by the High Court on the 28th November, 2011. In fact, since that time, the Court has been informed that Bosod again stands dissolved.
Prejudice
34. The respondent submits that, in addition to normal applications brought and necessitated by appearances in the Examiner’s List, there have been multiple applications before the High Court, the Court of Appeal, and this Court, and that on two occasions he has been obliged to bring applications seeking attachment and committal of the personal appellants for their refusal to comply with court orders. It is further submitted that, to date, the respondent has recovered 28 cost orders against the appellants, none of which have been discharged.
The Present Appeals before this Court
35. It is now necessary to outline the material which has been placed before this Court regarding the controversy on Clauses 6 and 7 in the first agreement, entered into on the 11th February, 2008. A description of the proceedings in this Court must begin with the ruling of Denham C.J., sitting with Hardiman J. and myself, on the 25th November, 2015. That ruling, on these appeals, should be read in conjunction with this present ruling. Thereafter, at a subsequent sitting of this Court, as allegations were made against Central Office officials, who are employees of the Courts Service, the Chief Justice, as Chairman of the Courts Service Board, recused herself. The Court later reconstituted itself into its present composition owing to the subsequent sad death of Hardiman J.
The Affidavits and Exhibits Before this Court
36. In the light of the allegation made to this Court that there had been a conspiracy to interfere with court documents, this Court directed an investigation take place. This judgment now sets out the affidavit material presented by the Courts Service. There has been no oral evidence, or cross-examination. For reasons that will presently become clear, it is, in my view, neither proper, nor desirable, that the issues now raised should be determined only on affidavit, even though, in exceptional cases, this Court has jurisdiction to proceed on such evidence.
37. In what follows, it is necessary to appreciate that there is a distinction between a judgment and a court order. The judge delivers a judgment. The effect of the judgment is reduced to writing and expressed in a court order. The court order is made up by a Registrar.
Mr. Kevin O’Neill’s Affidavit
38. The evidence which immediately follows from Mr. Kevin O’Neill and Ms. Marie Carroll results from the investigation ordered by this Court on 25th November, 2015. Kevin O’Neill is Principal Registrar of the High Court. He holds management responsibility for the registrars and staff of the Central Office of the High Court. By way of explanation of what follows, it should be said that there were, apparently, a number of orders which were not all consistent contained on the court file. These were orders of the 11th February, 2008, 14th March, 2008, and 28th March, 2008. Mr. O’Neill deposes that he examined the file for the purpose of swearing the affidavit. He states that there was no original of the order of the 11th February, 2008, either bearing the signature of the registrar in Dundalk, Ms. Marie O’Carroll, or attaching the original signed terms of settlement. He explains that the procedure ordinarily followed is that, once perfected by the High Court registrar, the original order is sent by the registrar for placing on the file by a member of staff in the Central Office. He states that it is not known where the original signed order of the 11th February, 2008 is located.
39. By way of further background, Mr. O’Neill states that all High Court orders perfected since January, 2008 are stored electronically in the Courts IT System. Only High Court registrars, and authorised Courts Service personnel, have access to these. He also deposes that a copy of any order perfected after January, 2008 is issued with a printout from the electronic version, not a photocopy of a document on the court file.
40. Mr. O’Neill further deposes that, having examined the order of the 11th February, 2008, he was of the opinion that the High Court order perfected on the 28th March, 2008 was the valid and operative one, that is, relating what occurred in Dundalk High Court on 11th February, 2008. As a corollary, he says that a purported order of the 14th March, 2008 is of no effect. He explains that a copy of the order appears on the file, most probably because it contains notes of a registrar from subsequent court listings. Mr. O’Neill explains his reasons for concluding that the order of the 11th February, 2008, perfected on the 28th March, 2008, and saved on the Courts Service computer system, which has attached to it a settlement agreement containing 9 clauses, is the valid one. His reasons are set out below.
41. Mr. O’Neill deposes that there are, in fact, two photocopy orders of the 11th March, 2008, which purport to have been perfected on the 28th March, 2008. Attached to each order are different versions of the settlement agreement. One version contains 8 clauses, and the second 9 clauses. From an examination of those orders, and from other evidence, (set out below), Mr. O’Neill has concluded that the default clause numbered “6” does not appear in the former 8 clause agreement, and he infers that the clauses have been renumbered accordingly.
The Stenographer’s Record of 11th February, 2008
42. Mr. O’Neill’s conclusions, as to the validity of the ‘nine clause’ agreement, and the order, are, in part, drawn from the fact that there was a stenographer present in the High Court in Dundalk when it was asked to make an order on the 11th February, 2008. This transcript has been exhibited, and refers by name to one of the two senior counsel recorded in the transcript as retained by the Butlers, entering the High Court in Dundalk, before McGovern J., in order to rule a settlement of the 2006 proceedings. Referring to the stenographer’s transcript, and other evidence, Mr. O’Neill states that the authentic settlement agreement could not be the version containing eight clauses. He concludes that the correct 9 clause order was consistent with a copy order referred to, and attached to an email sent by Nuala McLaughlin, Director of Services for the Superior Courts, which was sent to Mr. Michael Butler on the 18th October, 2013. It appears that this attachment to Ms. McLaughlin’s email to Mr. Butler is not contained in the appellants’ Book of Appeal.
43. Having reviewed the file, Mr. O’Neill is simply not aware of how the “eight clause” settlement agreement came to appear on the file in copy form. He deposes that, at the time, High Court files were made available upon request to parties to an action, and to their solicitors. This was not always in a manner where members of staff in the Central Office could closely supervise what was taking place. Thus, he concludes, the potential for improper interference with the content of a High Court file, at that time, could not be discounted.
What is Recorded in the Transcript of the Dundalk High Court Proceedings
44. The stenographer’s transcript is undoubtedly highly relevant evidence. Mr. Michael Butler submitted to this Court that this transcript was a “contrivance”, but goes no further in providing detail in challenging it.
45. The transcript identifies by name two senior counsel as acting on behalf of the ‘plaintiffs’, that is, the appellants herein. It contains a reference to a solicitor acting for the first named defendant, Nelson & Co., acting on behalf of Bosod Limited. That solicitor apparently signed one of the other settlements, and also prepared a brief memorandum on the negotiation in which he was involved.
Recorded Exchanges between Counsel and McGovern J. on 11th February, 2008
46. A relevant portion of the transcript of the 11th February, 2008 referring to counsel for the “plaintiffs”, reads at page 12:
“As you will see, judge, there are two undertakings to the court, the first is in paragraph 1, which relates to the transfer of a shareholding by Mr. Crohan O’Shea, the second named defendant, to the plaintiffs, to the second and third named plaintiffs, and he is giving an undertaking to the court to transfer his shareholding and to execute the necessary documents, and there be liberty to apply to the court to enforce that term. Hopefully it will not be necessary, but it allows for us to apply in case there is some issue. Then, as you can see, there are other requirements in respect of payment. There is also, at paragraph 4, judge, an undertaking to pay a sum by my clients to Mr. O’Shea … out of the proceeds of the sale of the properties, in the sum identified in the appendix.”
Later, on page 13, there is the following, again quoting counsel for the “plaintiffs”, that is, the appellants herein:
“And there are various other terms of the agreement. You will note then at paragraph 6, that in the event that we have not discharged the relevant sums by 11th September, 2008, we consent to a joint and several judgment against them in the sum then outstanding, and if we do so consent to such a judgment, the undertakings that we give should be released. So a schedule of payments has been agreed, and we are undertaking to the court to pay those.” (emphasis added)
47. On this, McGovern J. comments:
“Yes,”
(and then counsel interjects) “if by 11th September, there are still monies outstanding, then the judgment shall be entered against us for those sums and we will be released from our undertaking.” (emphasis added)
On this, the judge comments:
“Very good, well I suppose I should make that an order.”
48. It is unnecessary at this stage to go further than to say that the stenographer’s record would appear consistent with the contention that the documentation referred to therein contained a default clause. On Mr. O’Neill’s evidence, these terms are to be found in the order of the 11th February, 2008, and perfected on the 28th March, 2008 by Ms. O’Carroll.
Ms. Carroll’s Affidavit
49. Ms. Marie Carroll, High Court Registrar, in her affidavit, gives an account of what transpired in Dundalk High Court on the 11th February, 2008. She stated that she prepares many orders in the ordinary course of her work, and there was nothing about the order of the 11th February, 2008 that would cause her to have any specific memory of preparing this one. She deposed that she had examined the relevant High Court file, and noted that a photocopy of the order of the 11th February, 2008 was on file, with a date of perfection of the 14th March, 2008 after her name. She states she has no note, or specific recollection of perfecting the order of the 11th February, 2008 on the 14th March, 2008. She goes on to state that the procedure which she normally follows in perfecting any order was to save the order electronically on the Courts Service IT System, to record the order as perfected in the electronic High Court cause book, and to print and sign an original order for placing on the High Court file. She had no reason to believe she did not follow this procedure when perfecting the order in these proceedings.
50. Ms. Carroll sets out that there was a copy of an order saved electronically in a folder of the Courts Service IT System bearing a date of perfection of the 28th March, 2008. She points out that this order has nine clauses in the attached settlement. She believes that this is the definitive version of the order of the 11th February, 2008 which she perfected. She comes to this conclusion in circumstances where there is no version purporting to be perfected on the 14th March, 2008, saved to this electronic data base. She goes on to state that the electronic High Court cause book records the order of the 11th February, 2008 as having been perfected on the 28th March, 2008. She can offer no explanation for the appearance on the High Court file of copy orders with different dates of perfection.
51. While there are divergences in the orders, that is not the relevant issue. What is of prime importance is whether or not a settlement entered into on the 11th February, 2008 contained a default clause, or whether, rather, “Clause 6” merely referred to the settlement contained therein as being a “full and final settlement”.
The Respondent’s Case
52. Also before this Court also was an affidavit, sworn by Robert Dooney, solicitor on behalf of the plaintiff/respondent, Crohan O’Shea. Mr. Dooney deposes as follows:
“During the hearing of the appeals on 8th October, 2015, Mr. Michael Butler claimed that the respondent had obtained judgment on an incorrect court order, and had created a forged court order to support his application for judgment. Not only was the accusation defamatory, vexatious, and without merit, it transpires that Mr. Butler has, in fact, been relying on a forgery in order to succeed with his appeals. As expected, the affidavits supplied on behalf of the Courts Service show that the respondents had obtained the judgment on the correct order, and pursuant to Settlement Agreement that he had entered into with the appellants.”
Mr. Stockton’s Affidavit
53. Mr. Dooney deposes that Mr. O’Shea, his client, engaged the services of Anthony Stockton, a forensic scientist of a firm called Questioned Documents Services, in York in England. Mr. Stockton is said to be a specialist in the scientific examination of handwriting, signatures and disputed documents. Mr. Stockton compared the ‘eight clause’ document and the “nine clause document”. It will be recollected that the “nine clause document” is the one which Mr. Dooney says is the authentic one.
54. Mr. Stockton’s report sets out the following conclusions. First, that the ‘8 clause document’ was not written out independently at a different time to the 9 clause document. Second, that the ‘9 clause document’ had been copied or scanned, and Clause 6 thereof removed. He concludes that the text associated with Clauses 7, 8 and 9, and the numeral 9, had been “cut” from the 9 clause document, and moved further up the page, alongside the numeral 7 and numeral 8, to create the eight clause document. He goes on to state:
“3. While it is possible to achieve the alteration using a mechanical process, I consider it to be more likely to have been accomplished with the aid of a scanner and computer software. Based on the information provided, I have not interpreted the findings in the context of Clause 6 having been inserted into Q01 to create a montage.” (Q01 is the 9 Clause document)
Mr. Dooney’s Account of the Litigation
55. Mr. Dooney goes on to make the point, (largely in the nature of submission), that, prior to the emergence of the 8 clause document, the defence originally articulated by senior counsel then appearing on behalf of the appellants, was that the settlement agreement had been in breach of s.60 of the Companies Act, 1963. That position continued to be the primary defence in the well charging proceedings, as contained in affidavits sworn by Mr. Michael Butler on the 23rd February, 2010, 10th March, 2010, and 17th May, 2010, as well as in the affidavit of the appellants’ then solicitor, Tara Anne Byrne, of Daniel J. Byrne & Co., (then retained by the appellants), sworn on the 24th June, 2010. Mr. Dooney says that Ms. Byrne’s affidavit, in fact, exhibits the “nine clause settlement”. Ms. Byrne was then acting for the personal appellants, and their own company.
56. The full thrust of Mr. Dooney’s case, made on instructions from his client, is, unequivocally, that Mr. Michael Butler, or persons on his behalf, uttered a forged document, and had sought to mislead this, and other courts, by reliance thereon. Mr. Dooney avers that Mr. Michael Butler offers no explanation for his failure to refer to the claimed forgery in any affidavit sworn prior to the 29th October, 2010.
57. Mr. Dooney deposes that, during earlier hearings, Mr. Michael Butler relied on an affidavit of Mr. Fabian Cadden, Solicitor, (then retained by Mr. Butler), sworn on the 17th December, 2010. This referred to an inspection of the court file carried out on the 22nd November, 2010. Mr. Cadden deposed there that he had personally witnessed two versions of the settlement agreement on the file.
58. Mr. Dooney deposes that the “controversy” regarding the settlement was of Mr. Michael Butler’s own making, by introducing what he states is a “forgery” in an affidavit sworn by Mr. Butler on the 29th October, 2010. Mr. Dooney’s contention is that the only logical explanation is that either Mr. Butler, or someone acting on his behalf, placed a forgery on the court file, prior to the inspection carried out on the 22nd November, 2010.
59. Mr. Dooney makes a number of other serious allegations against Michael and William Butler. These include the alleged adducing of other fraudulent documentation before Dunne J. in the High Court on the 4th February, 2013. He also refers to a number of efforts, which he contends the appellants made to defeat the effect of court orders for possession of the properties which are in suit.
60. He refers to the fact that his client, Mr. O’Shea, brought motions seeking attachment and committal of the appellants for their breach of orders made by Ms. Justice Dunne. He avers the appellants were obliged to purge their contempt. He states that a number of other vexatious applications were made for judges to recuse themselves on baseless grounds. He instances one application made on the 1st September, 2014, to Finlay Geoghegan J., to recuse herself, on the basis that she did not have jurisdiction to hear the case, as she was a woman, and the Constitution did not provide for female judges. He also states that a Court of Appeal judgment, delivered by Kelly J. on the 9th March, 2015, refers to the fact that the appellants had made unmeritorious allegations of bias against at least four judges.
Earlier Affidavits Sworn by Mr. Michael Butler
61. It is necessary next to refer in more detail to some other material placed before this Court by the respondent, which was previously placed before the High Court, which, it is said, identifies, as closely as possible, when the “Clause 6 issue” first emerged.
62. Mr. Dooney states that Mr. Michael Butler swore a number of affidavits in response to the Special Summons proceedings. These affidavits were dated the 23rd February, 2010, 10th March, 2010, and 14th May, 2010. In the course of these affidavits Mr. Butler made the following points:
• that the High Court judge (Dunne J.) ignored crucial evidence;
• had incorrectly directed that he and his brother pay costs;
• and that the reason for the delay in bringing a stay application in the Supreme Court was that a solicitor acting on his behalf had refused to take instructions.
63. But, counsel for the respondent, Mr. Hugh O’Flaherty, B.L., lays emphasis on the proposition that, in his affidavit sworn on the 14th May, 2010, Mr. Michael Butler made a number of allegations regarding flaws in the procedure, alleging that the “Dundalk agreement” was illegal and unenforceable, as being contrary to company law, as it involved a share transaction, wherein financial assistance would be given to the directors of Bosod to buy shares in that company.
Mr. Michael Butler’s References to Clause 6
64. Mr. O’Flaherty draws attention to paragraph 20 of the affidavit of 14th May, 2010, where Mr. Butler swears, both on his own behalf, and his brother:
“Clause 6 of the agreement could only be invoked if William Butler and Michael Butler were in default of our obligation under Clause 4 of the Agreement. Neither William Butler, or Michael Butler, should be held to be in default of fulfilling our obligations of the essential terms of the agreement, that is, Clause 4, since the implementation of the provisions of Clause 4 is in clear violation of company law, the import of which involves a possible prison sentence, among other things. …”
65. Counsel for the respondent points out that no question is raised in that averment regarding the existence, or the terms, of the default Clause 6, which, in fact, it was Mr. Michael Butler who referred to and exhibited it in his affidavit. Counsel submits that, by the 29th October, 2010, the position had altered. Then, Mr. Butler swore another affidavit, where at paragraph 4 he swore:
“The said proceedings were to be heard before the High Court, sitting in Dundalk on the 11th February, 2008, but were settled following negotiations. I say that I am very unhappy concerning the manner in which these negotiations were handled, and in particular the manner in which our legal team dealt with me and the third named defendant. I have much to say about that experience, but I have been advised by my solicitor, and counsel, that our dissatisfaction is not relevant to this application. Eventually, two agreements setting out detailed terms of settlement were reached to settle this case, as against the second and third named defendants, respectively. It appears that one of the terms of settlement, relating to the third named defendant, was subsequently received into court, and I beg to refer to copies of same upon which is marked the letter “MB1”, I have signed my name prior to the swearing hereof. The terms of settlement relating to the second named defendant/respondent do not appear to have been received into court. This matter has only recently come to light, and a motion will be brought before this honourable court to enlarge the grounds of the within appeal to deal with this matter.”
66. Mr. Butler went on to depose:
“I say and believe that due to the extreme pressure under which we were placed to sign the purported agreement on the 11th day of February, 2008, I am uncertain as to what exact terms of settlement I agreed to. This belief is strengthened by the fact that I have in my possession a different version of the said terms of settlement, fully signed by all the parties, which does not contain the critical Clause 6. I say that this undermines the entire basis for the judgment, the subject of the appeal herein. I beg to refer to a copy handwritten settlement agreement with attached compliment slip, dated the 30th September, 2009, together with copy letter dated the 23rd April, 2008, upon which, marked with the letter MB2, I have signed my name prior to the swearing hereof.” (Emphasis added)
Counsel’s Opinion 2nd June, 2008
67. There is another document exhibited by the appellants which has a bearing on the issue. In the months immediately after the 11th February, 2008, a legal question seems to have arisen regarding the execution of the agreement. A solicitors firm, Messrs. Hickey Dwyer, had apparently carriage of sale of a number of the properties which were part of the development. It appears that the firm were unclear as to whether they were entitled to give solicitor’s undertakings regarding certain transactions. To clarify the position, they obtained the Opinion of junior counsel. In the course of this Opinion, dated the 2nd June, 2008, and exhibited by the appellants, junior counsel understood that Hickey Dwyer & Co. had been retained by the appellants and Bosod. In fact, as will be seen, Messrs. Hickey Dwyer were not ever actually retained by Mr. Michael Butler. However, in setting out the background, junior counsel indicated that proceedings had been compromised between the parties when the matter had been listed on the 11th February, 2008, and two separate settlements had been entered into between the parties.
68. The Opinion then refers to the default clause, as being contained at Clause 6. It recites the same terms of the default clause as have been set out earlier. This Opinion was furnished within four months of the Dundalk hearing, which took place on the 11th February, 2008.
Ms. Hickey Dwyer’s Affidavit
69. A further part of the material adduced by the respondent was an affidavit from Ms. Clodagh Hickey Dwyer. Ms. Hickey Dwyer denied that her firm had ever actually acted for Mr. Michael Butler, or his brother; she says that, although they had been requested to do so, they had declined to act. However, Ms. Hickey Dwyer goes on to swear:
“However, in contemplation of this office taking over the litigation matter, Mr. Michael Butler delivered to us a copy of the terms of settlement/settlement agreement as between the plaintiffs/respondents and the defendants/appellants, together with a copy of the terms of settlement as agreed between the defendants/appellants and Mr. Thomas O’Driscoll.”
70. She goes on:
“The copy Terms of Settlement as between the plaintiffs/respondents, and the defendants/appellants, received by this office, contained 9 paragraphs numbered 1 to 9. I say that I never had sight of a second copy of the Terms of Settlement/Settlement Agreement, as between the plaintiffs/respondents and the defendants/appellants, which contained 8 paragraphs, until I received the letter and enclosures from Sherwin O’Riordan Solicitors, as referred to above.” (emphasis added)
Ms. Hickey-Dwyer exhibits the document which Mr. Butler gave to her. It is a 9 paragraph document. It, too, contains the default clause.
71. Thus far, this judgment has set out, in far more detail than would be normal in a judgment of this Court, the nature of the evidence adduced. While the submissions herein have focused largely on those from Mr. Michael Butler, it should be said that Mr. William Butler also made short oral submissions to the Court. The detailed nature of the narrative is necessary as background for the order which is now proposed, in the light of this stark conflict of sworn evidence.
The Appeal Against McGovern J.’s Order dated 24th February, 2010 (Appeal 889/2010)
72. As mentioned earlier, an appeal is also brought against an order made by McGovern J., dated the 24th February, 2010 (Appeal No. 89/2010). The relevant judgment and order was made by McGovern J. on the 12th May, 2009, in the sum of €653,832. As also recorded earlier, it was McGovern J. who granted judgment in that sum. However, it appears that there was an error on the face of the order, in that the order in question was recited to be an order of “Clarke J.”, rather than that of McGovern J. It appears that a solicitors firm acting on behalf of Mr. O’Shea, sought consent to amend the order, but that the second named plaintiff in those proceedings, Mr. Michael Butler, indicated he was unwilling to consent to this. McGovern J. made a corrective order on 24th February, 2010, perfected on 26th February, 2010. This third appeal filed is unusual in form. It conveys, in terms, that there will be an appeal against the decision of Mr. Justice McGovern made in favour of the second named defendant (that is, Mr. O’Shea) on the 24th February, 2010, and perfected on the 26th February, 2010. In fact, there is no dispute that the judgment for the outstanding sum was granted by McGovern J. on 12th May, 2009. The question raised in the appeal is, rather, whether that order can be amended by inserting the name of the correct judge, the identity of whom is not disputed. The appellants say they were given short notice of the application to amend; were given insufficient notice of the application, and that the reason for their absence was not brought to the attention of McGovern J.
73. Order 28, Rule 11, of the Rules of the Superior Courts, provides that:
“11. Clerical mistakes in judgements or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion without an appeal.”
74. Order 115 of the Rules of the Superior Courts provides that:
“Every order of the Supreme Court, of the Court of Appeal, and of the High Court, when drawn up, shall be dated the day of the week, month and year on which the same was made, unless such Court shall otherwise direct, and shall take effect accordingly. Every such order shall be passed and perfected with all convenient speed.”
75. As is clear from the Notice of Appeal filed on behalf of the Butlers, there is no dispute but the order granting judgment in the sum said to be outstanding was delivered by McGovern J. The contention is made in the Notice of Appeal that Order 28, Rule 11, RSC, was amended on the 17th August, 2009. It is said that the amended order is not retrospective, and cannot be lawfully applied in respect of a motion to amend an order made by the High Court prior to the 17th August, 2009. It is denied that there was any clerical error, or accident. It is said that an order of the High Court is sacrosanct, and “not to be demeaned by mere clericalism”. It is unclear as to what, precisely, the appellants are referring to when they speak about this. That appeal may, if necessary, stand adjourned to await the outcome of the order now proposed. It is abundantly clear that the true issue which the appellants wish to canvass relates to whether or not there was a binding settlement. Insofar as any issue might remain outstanding on this appeal after the High Court hearing envisaged, I would propose that this appeal be listed for mention before this Court on a convenient date in the future.
Order 58, Rules of the Superior Courts
76. I turn then to the form of order proposed. Order 58, Rules of the Superior Courts, permits this Court to receive evidence by affidavit or orally, or to take the hearing of evidence before a commission. Given the nature of the allegations here, none of these courses of action appear appropriate. For this reason, it is necessary to direct a retrial on a single issue. In the event of an appeal from such High Court judgment, this Court would, in the circumstances, entertain an application for a “leapfrog” appeal, in the interests of justice. While Order 58, Rule 1, provides that appeals to this Court are by way of rehearing, that expression is necessarily a term of art in its application. Much of the material now sought to be adduced by the appellants, and the respondents, has never been produced before the High Court at all. While this Court has power to draw inferences of fact on affidavit, this power is to be read subject to the necessarily implied limitation that conflicts of oral testimony are more likely to be correctly resolved in what Henchy J. called “the forensic atmosphere of the trial than on appeal in this Court, where subtleties, inflexions and countless matters of direct personal impression tend to be distorted or blurred or even totally lost in the transmutation of the live trial into a written record.” (Northern Bank Finance Corporation v. Charlton [1979] I.R. 149, at 193).
77. All of this is to be looked at from the point of view of the statement, contained in one of the affidavits adduced by the respondents, that when the appellants were represented by counsel in the High Court it was accepted that their only course of action regarding the settlement was to seek other avenues to challenge the settlement. While proceedings to challenge the settlement may have been issued, they are not before this Court. The outcome from the order proposed is likely to be determinative of the issues in these appeals. It is desirable that all the relevant extant proceedings between the parties now, finally, be dealt with together. It appears this can be most conveniently achieved in the High Court.
Proposed Order
78. Save as set out below, I would dismiss the appeals against the judgments and orders of McGovern J. (Appeal No. 228/2009). I would also dismiss the appeal against the judgments and orders of Dunne J. (Appeal No. 60/2011).
79. Order 58, Rules 7 and 8(3), give power to this Court to direct a new trial on any question, whatever be the grounds thereof, without interfering with the finding or decision of the High Court upon any other question. The Court is empowered to make such orders as the case may require. It is clear that the judgment granted by McGovern J., in the sum claimed, was, on the face of it, valid. So, too, were the judgments and orders of Dunne J. What remains to be determined is whether or not there was a binding settlement upon Michael and William Butler, and whether that settlement contained a default Clause 6. It would appear that there are also a number of sub-issues to be tried in the various pieces of litigation. Some of these are referred to, but are not all inclusive, and may be subject to review by a High Court judge. For many reasons it is inappropriate that in this case this Court should act as a Court of First Instance. The High Court is, under the Constitution, the appropriate Court of First Instance, to address the issues which arise.
80. Pursuant to Order 58, Rule 8(3), therefore, I would order a new trial confined to the question of whether or not a settlement, purportedly entered into by the parties on the 11th February, 2008, contained a default Clause 6, and if so, whether the appellants were, and are, liable thereon. In the process of applying fair procedures, it will naturally also be necessary for the High Court to consider, and seek to identify, whether, and by whom, settlement documents and orders contained on the court file were apparently altered, and further to determine such other legal consequences or orders that may appear necessary in the interests of justice, and to maintain the integrity of the court administration system.
81. As the appellants seek to challenge the validity of the order of the 11th February, 2008, as reflected in the order of the 28th March, 2008, it is clear the primary onus of proof will lie upon them, as moving parties in the first instance. It is they who are seeking to challenge the order which is, on its face, valid. I would recommend, but go no further than this, that all parties be fully legally represented at the trial of that issue.
The Conduct of this Litigation
82. One cannot leave this appeal, however, without making a number of other observations regarding the manner of its conduct.
83. In Tracey v. Burton, a judgment delivered on the 25th April, 2016 (neutral citation 2016/IESC 16), I observed at paragraph 45:
