The Supreme Court has dismissed the outstanding appeals brought by Michael and Thomas Butler Ltd., Michael Butler and William Butler, holding that a nine-clause settlement with Crohan O’Shea, including a default clause, was valid and binding. The Court said the litigation was at an end, except for the question of costs.
The ruling, delivered by Mr Justice John MacMenamin on 10 September 2021, followed a five-day hearing before then High Court President Peter Kelly. That hearing had been ordered after an earlier Supreme Court decision in October 2017 remitted a limited issue: whether a settlement purportedly made on 11 February 2008 contained a default clause and whether the Butlers were liable under it.
Kelly P. found that the settlement included the clause and that the Butlers were liable for sums outstanding. He also found that an eight-clause document without the default clause had been created by copying the nine-clause agreement and removing that clause. He could not determine when or by whom the court file had been interfered with. The Supreme Court said the High Court’s findings were supported by credible evidence and found no basis to conclude that Kelly P. had erred.
That evidence included testimony from counsel who represented the Butlers at the 2008 hearing, a transcript and audio recording of the proceedings, and expert evidence that the eight-clause document was produced by a “cut and paste” operation. The Court noted that the Butlers had paid O’Shea €446,168, leaving €653,832 outstanding under the settlement. It also recounted that the High Court had found the Butlers liable for that balance from 12 September 2008.
The Court also struck out Appeal No. 89/2010, which concerned an error in the original order identifying the judge who made it. It said the substantive settlement issue had been determined and that any question arising from that appeal was immaterial. If needed, the order could be corrected to name McGovern J.
The Supreme Court declined to make an Isaac Wunder order restricting further proceedings related to the claim. It said, however, that the respondents could apply to the High Court to restrain any attempt to relitigate the matters.
On costs, the Court said the respondents would ordinarily be entitled to the costs of the appeals, including the High Court hearing. The Butlers were given seven days to file written submissions, limited to four A4 pages, explaining why a costs order should not take effect. Without submissions, the order would take effect after seven days.