Two brothers who alleged a “Masonic” conspiracy was among the reasons they were held liable under a 2008 settlement agreement for €1.1 million arising from the collapse of a building partnership have lost their action.
The president of the High Court, Mr Justice Peter Kelly, said it would be “perverse” to hold in favour of Michael and Thomas Butler in this last stage of their “torturous” 12-year litigation.
He criticised how the Butlers, as personal litigants with “assistance” of a struck-off solicitor Angela Farrell, who formerly practised at North Great George’s Street, Dublin, conducted this five-day hearing, including by advancing claims of wrongdoing, forgeries and “Masonic conspiracies” “without the slightest evidence”.
His judgment arose after the Supreme Court directed a new High Court hearing to decide whether the brothers are liable under the 2008 settlement.
The case dates back to a July 2003 agreement entered into by Michael Butler, Old Spa Road, Clonmel, Co Tipperary, and William Butler, Ballytarsna, Cashel, concerning a housing development. Crohan O’Shea, Marino Avenue West, Killiney, Co Dublin, and another man, Thomas O’Driscoll, agreed to become partners and a company, Bosod Ltd, was formed.
The parties fell out and the Butlers and their company, Michael and Thomas Butler Ltd, sued Mr O’Shea and Mr O’Driscoll for some €4.5 million on grounds including alleged breach of contract. The claims were denied, the defendants counterclaimed for alleged breach of the partnership agreement, and the case went before the High Court in Dundalk in 2008, where the Butlers were legally represented. They disputed they entered a binding settlement on February 11th, 2008 requiring they pay Mr O’Shea some €1.1 million by September 2008. €446,168 was paid and Mr O’Shea later got a judgment against them for the alleged outstanding sum, €653,832.
The Butlers contended there never was a binding agreement and also alleged it was void for illegality, and that, as a result of alleged conspiracy, a forged document or documents were placed on the court files.
The Courts Service denied any interference by court officials with the file.
Following an appeal, the Supreme Court directed a fresh High Court hearing on certain issues.
In his judgment on Tuesday, Mr Justice Kelly ruled a settlement was entered into between the Butlers and Mr O’Shea on February 11th, 2008 and the settlement terms were reduced to writing and signed by the brothers. He rejected claims by Michael Butler the settlement was a “fix” involving four people, including Mr O’Shea and a senior counsel.
He found the settlement contained a default clause providing, if the €1.1 million was not paid by September 11th 2008, the brothers would consent to judgment in the remaining amount.
The judge said a “very unsatisfactory” position obtains insofar as the High Court’s central office record of what happened in Dundalk, but he stressed that situation did not affect the brothers’ liability under contract. The judge said there were two versions of the court order on file with different perfection dates in March 2008 and with two different versions of the settlement agreement annexed, only one of which had the disputed settlement clause. Neither were signed by the registrar and both had her name in typescript.
The original order, signed by the registrar, was not on the file and it should be, he said.
He accepted evidence from the chief registrar that solicitors representing parties, or self-represented parties themselves, can inspect their case file on a shelf in the Central Office without secure supervision with the effect it is possible for people to interfere with a file.
He also accepted evidence from a forensic documents expert that both copy orders on file were copies of the same source document but with the disputed clause removed from one copy.
He said the order on file which matched the electronic version of the original order was the correct order.
While he considered it was likely the court file was interfered with to bring about the existing unsatisfactory situation, he was unable to say when or by whom the interference occurred.
The procedure by which High Court files can be inspected in an unsupervised fashion is “completely unsatisfactory” and he would take steps to address that, he stressed.
