The High Court found that an email sent by Simon Kelly to plaintiff Hugh McGivern during a commercial dispute was contempt of court, but said it would take no further action if Kelly paid €20,000 to a nominated charity within 14 days. Kelly was also made liable for the costs of the hearing’s third day, which was devoted almost exclusively to the contempt issue.
Mr Justice Kelly’s judgment, delivered on 22 February 2008, concerned an email sent in the early hours of 5 July 2007, the day defendant Paddy Kelly delivered his defence. Simon Kelly, the defendant’s son, warned McGivern that if he continued the action concerning the Mango clothing franchise, he would seek to cause him “loss and pain in other business arrangements”. He also warned that McGivern might win in court but it would be “to your eternal regret”.
The underlying proceedings arose from a share purchase agreement dated 6 November 2006. McGivern had agreed to sell Paddy Kelly shares in four companies operating the Mango franchise and to be released from certain guarantees and indemnities. The trial began on 5 February 2008 and continued for two days. On the morning of the third day, the parties announced a settlement, whose terms the judge received and filed. The judgment said Paddy Kelly had agreed to pay McGivern €1.35 million, alongside other settlement terms.
The judge said threats intended to inhibit a litigant from using the courts obstruct the administration of justice. He concluded that Simon Kelly sent the email to dissuade McGivern from continuing the action. McGivern was not deterred. The court did not decide whether the threatened business harm had been carried out: the plaintiff’s cross-examination was incomplete when the action settled, and the defendant had not given evidence on that subject.
Simon Kelly apologised to McGivern and the court, in a written statement and in evidence. He said the email had been written late at night out of frustration and that he had not intended to intimidate McGivern. The judge rejected that account of his intention, but accepted that Kelly had shown contrition and recognised his wrongdoing. McGivern accepted the apology.
The judge declined to refer the matter to the Director of Public Prosecutions or take other further action, conditional on payment of €20,000 to a nominated charity within 14 days. The judgment states that if the payment is made, no further action will be taken in the matter.