The High Court has allowed David Dully to pursue the outstanding parts of his claim against Athlone Town Stadium Limited, including damages, under the existing special summons procedure.
In a judgment delivered on 30 May 2018, Mr Justice Richard Humphreys permitted Dully to file an additional affidavit, sworn on 23 May, setting out details of his damages claim. The court said it would hear counsel on the timescale for the defendant’s replying affidavit.
The judge also directed that the existing order for cross-examination on affidavits would apply to the new and any further affidavits. At the damages hearing, both parties may cross-examine on earlier affidavits insofar as that questioning relates to issues relevant to the damages claim.
Athlone Town Stadium Limited had objected to further affidavit evidence at this stage. Its objections included delay, the use of the special summons procedure, whether damages and causation issues required a different approach, and whether the court could deal with the matter after its earlier judgment. The judge rejected those grounds as reasons to prevent the claim proceeding on the further evidence.
The court stressed that the earlier substantive matters were not being reopened. The damages issue had been reserved in the first judgment, which removed the defendant as trustee in relation to the trust and directed conveyance of the legal interest in the trust property to a new trustee. A later judgment had declined to stay that conveyance.
The ruling permits the damages issue to be pursued and sets arrangements for evidence and cross-examination. It does not decide whether the defendant’s actions sounded in damages, causation, or the amount, if any, payable.