The Supreme Court has ordered a new High Court trial to determine whether a 2008 settlement between Crohan O’Shea and Michael and William Butler contained a default clause, and whether the brothers were liable under it.
The dispute arose from proceedings over a housing development at Airmount, Cashel Road, Clonmel. The Butlers and their company, Michael & Thomas Butler Limited, had claimed more than €4.5 million in damages from Bosod Limited, O’Shea and Thomas O’Driscoll. The parties settled some claims at a High Court sitting in Dundalk on 11 February 2008, but now dispute the terms of O’Shea’s settlement with the Butlers.
O’Shea says the agreement required the Butlers to pay €1.1 million and included a clause allowing a joint and several judgment for any balance unpaid by 11 September 2008. The brothers dispute that such a clause was agreed. They allege that settlement documents were altered and that a version containing the clause was placed on the court file. O’Shea, in turn, alleged that the brothers or someone acting for them relied on a forged document. Those allegations were not resolved by the Supreme Court.
The High Court had granted O’Shea judgment for €653,832 in May 2009, after payments totalling €446,168. In December 2010, it made a well charging order over property, followed by an order for sale. The Supreme Court dismissed the appeals against the judgment and enforcement orders, describing them as valid on their face. It did not decide whether the settlement was binding or whether it contained the disputed clause.
The court said the conflicting evidence should not be resolved on affidavits alone. It directed a new trial confined to whether the settlement purportedly made on 11 February 2008 contained the default clause and, if so, whether the Butlers were liable under it. The High Court is also to consider whether, and by whom, settlement documents and orders on the court file were apparently altered, and any further legal consequences or orders required. The court said the Butlers, as the parties challenging an order valid on its face, would bear the primary burden of proof.
The judgment also recorded that a company action brought by restored Bosod Limited in 2011 to challenge the settlement on illegality grounds had not progressed beyond its solicitors coming off record; Bosod was later dissolved again. A separate appeal concerned correction of an order that mistakenly named the judge who had granted the 2009 judgment. The Supreme Court said that appeal could be mentioned later if any issue remained after the High Court hearing.