The High Court has found that Michael Butler and William Butler entered into a settlement with Crohan O’Shea in February 2008 that included a default clause, and that they remained liable to him for €653,832. The decision followed a new trial confined by the Supreme Court to whether the clause was part of the settlement and whether the Butlers were liable under it.
Mr Justice Kelly, President of the High Court, heard five days of evidence. He found that negotiations took place in Dundalk on 11 February 2008, the Butlers signed written settlement terms, and their counsel read clause 6 to the trial judge. Under that clause, if €1.1 million was not paid by 11 September 2008, the Butlers would consent to a joint and several judgment for the amount then outstanding.
The Butlers disputed that they had agreed to those terms. Their former counsel, John O’Donnell SC, testified that the settlement was negotiated with their agreement. The judge preferred his evidence, which he said was supported by the court transcript and other contemporaneous material. The transcript recorded counsel describing the default provision to the trial judge. The judgment also noted that €446,168 was later paid to Mr O’Shea.
The judgment addressed discrepancies in two versions of a court order and its attached settlement terms. Neither order on the court file bore the registrar’s signature, and the original signed order was missing. One attached version contained nine clauses, including the default clause; another contained eight and omitted it. A forensic document examiner concluded that the shorter copy had been created from the longer one, with clause 6 removed. The judge accepted that evidence and found the nine-clause version reflected the settlement made in court. He said it was likely that the file had been interfered with, but that he could not say when or by whom. He stressed that the contractual liability arose from the settlement, not from the court order or its attachments.
The Supreme Court had earlier dismissed the Butlers’ appeals against a 2009 judgment and a 2010 enforcement order, while directing a new trial on the settlement questions. In this judgment, Mr Justice Kelly answered both questions against the Butlers: the settlement included clause 6, and they were liable under it. He refused a late application that he recuse himself. The judgment records the finding on liability; it does not make a new payment order.