Why We Will Win

   

    It is April 12th. On this day four years ago, a shambolic 'defence' reached its logical conclusion in our case. Unlike today, I couldn't begin to explain what had happened (most defending litigants don't have a clue what's going on and put all their trust in their legal representatives), but I can read people and I knew immediately that we'd been had. 

  Three days before the swearing, I had followed the instruction of our solicitor Mr. Neil McNelis and travelled to Dublin to swear an affidavit. Though I didn't understand their significance, there were 15 pages added to the exhibit. Mr. McNelis had his agent oversee the swearing, so I had no one to ask about them. I swore the affidavit, assuming that the pages would be used by our counsel to spring a nice surprise on the opposition. Surprise or otherwise, the pages would be worth E160k to the opposition and that award would go on to become the foundation of a 'settlement agreement' thirteen months later. 

  Following the Judgment, Mr. McNelis scrambled to hold it together. The suing of Martin Egan was a non-runner for me, as that would have meant handing over the stadium to Messrs. O'Connor, Hayden and Dully.  Mr. McNelis then claimed that there was a huge tax issue which had been overlooked, and I thought that might be a runner, as Humphreys could use it to extricate himself from the hole he'd been digging for himself. Back then, it was hard to envision a future where every Judge (with the honourable exception of Judge Irvine) would be expected to bring his or her own shovel.

  That particular avenue of pleasure closed off (as Basil Fawlty said), Mr. McNelis came to Athlone, met with our company and promised to make amends. He would do everything he could to overturn the ''outrageous'' Judgment and do so pro bono. We took him at his word. It got worse.

   Here is the conclusion to a recent letter from Mr. McNelis. 

     We have been here before. There are barristers behind Mr. McNelis and they want money i.e. based on observed experience, a 'sympathetic' Judge will be waiting for them if it comes to that. 

 

   On January 25th last, I met our solicitor Patrick Cunningham and counsel Tim Dixon BL to discuss our grounds for a Supreme Court challenge to the Court of Appeal Judgment. I'd been looking forward to the meeting, because whenever there was a new court challenge in the past, it would always be an occasion of great positivity. My worries would be allayed by our legal team and I would be assured that there was some unanticipated point (or points) of law which would guarantee our future success.                  January 25th was different though. It was unsparingly negative. Messrs. Dixon and Cunningham argued that the Judgment was comprehensive and that we had no grounds to challenge it. I begged to differ.  

   Mr. Cunningham phoned me in the morning of February 12th. Contrary to my understanding of how the Supreme Court operates, he explained to me that it is a court of final appeal, to which we will need to submit points that ''jump out at you'' - always keeping an angle of public interest. He asked me to pretend that I was the counsel and to make the case as best I could. So, over the next 10 days I sent him the following (slightly extended) 37 points:

1. The most fundamental issue at stake is whether it is legal and appropriate for the stadium property, with its majority public and minority private funding, to be vested in a private for-profit company with (at best) a tenuous connection to Athlone Town Association Football Club. Having most of the club's name incorporated into the company's name is misleading. The company, which purported to have a right to run every aspect of the club's operations (before the club's demise), based solely on the June 27th 2017 springing of a motion on the club's members at a behind-locked-gates AGM, is effectively three men - the only members it has had since its formation in July 2015. The June 27th 2017 resolution to make the executive committee of the club members of the company has never been honoured.

2. Athlone Town Stadium Limited was always predisposed to having the stadium ownership transferred to the club; firstly on the clearing of its debts, later (after Mr. Molloy bought a controlling interest in ATSL) on the clearing of a uncertain majority of its debts. As a compromise, due to pressures brought on it by the club and by the FAI, ATSL has on two occasions favoured its transfer to the FAI and on one occasion to Westmeath County Council - both public bodies. Under no circumstances would it ever consider its being transferred to a private company. The terms of the May 23rd 2019 'agreement' were sufficiently vague that, unless privy to inside information, the one or two directors who pre-approved its transfer on that day could not have known (and almost three years later still could not know) where the ownership would end up, and would have no realistic say in determining same. 

3. ATSL is bound by Article 2 in its Memorandum of Association. It is not inconceivable that Athlone Town AFC CLG could fulfil that responsibility to the people of Athlone. But without seeing the Pre Season contracts (which were withheld from court) and noting the general lack of transparency surrounding that company, ATSL could not even begin to consider the jump in trust required to hand over that responsibility. Startlingly, though the purported Deed of Trust through which the club could (but didn't) make a claim of ownership contains an indemnity, the Courts do not believe that ATSL is entitled to any compensation for its expenditure on the property - or indeed for a decade and a half of taking care of the stadium solely in the public interest.

4. All of ATSL's and all of Mr. Molloy's contracts have been with the club, none have been with Athlone Town Athletic Football Club. But the April 12th 2028 changed the 'moral beneficiary' to the latter and the November 14th 2018 judgment ordered ATSL to pay E160,673.05 to the members of same. No information has been provided to Court about who those members might be, who owns Athlone Town Athletic Football Club, what it is. No application has been made to the Court to have the 'wins' of the club transferred to the 'new club'. It would be foolish even to assume that it is an actual football club, given Mr. McCaul's (hearsay but likely well informed, given his extensive football connections) saying on December 4th 2019 that he didn't know if it ''has a football function''. The Judgment of the Court of Appeal does not address this issue at all. It refers only to an 'Athlone Town Football Club', which could be either of the entities but legally cannot be both. 

5. Mr. Dully claims a right to take these proceedings on behalf of the club. But he has no representative order on behalf of the club. He has exhibited no evidence of a vote being taken on the issue at either club or committee level, no evidence of his being voted a trustee of the club. He did exhibit the minutes of a seven man (one absent) committee meeting from May 18th 2017 which purported (without a vote) to nominate him to ''take proceedings on behalf of the club''. He also twice exhibited (on December 17th 2017 and April 9th 2018) a bogus version of the constitution of the club which claims at Rule 17 that there are just six members on its executive committee and comically at Rule 34 (b) that it can have trustees provided that their number ''shall not exceed three''.  After much searching, ATSL finally located a true copy of the constitution of the club in September 2018 and Mr. Molloy exhibited this document (which shows the committee to require fifteen members and its number of trustees set between five and ten) with his affidavit of November 18th 2018. 

6. The club had its last meeting on November 20th 2018. Even were it acknowledged that Athlone Town AFC CLG had a legal right to run the club's affairs, that company could not run something which no longer existed. Mr. Dully may conceivably have had the right to instruct his solicitor Mr. Stapleton on behalf of the club members up to the end of 2019, but not beyond. The plaintiff's contesting of the 2020 hearings at the Court of Appeal is therefore void.

7. This case is an almost endless set of barely (if at all) legal measures, one following the other, each benefitting (or at least driven by) the same small group of people. The transfer of the property blended seamlessly into a damages case, then into a peculiar invocation of 'Mooreview' to target the directors of a defendant, then into a purported settlement of all of the above which released a chosen duo of directors from the clutches of being sued. Their legal representatives could advise them to claim a right of majority to save themselves and sink the ship in which they had travelled, using the entirety of the assets of an insolvent company to buy off the action against them. In order to sell the majority claim, Messrs. McCaul and MacGeehin could submit affidavits claiming there was a formal meeting where those directors outvoted Mr. Molloy. And despite these claims were rubbished in cross-examination, the Eighth Judgment of Humphreys J. could say that there didn't have to be a formal meeting at all and basically that the three directors knocking around the building on the same day was meeting enough for the purposes of establishing majority. The Judgment of the Court of Appeal found no issue with any of this.

8. Both Judgments say that the evidence of Messrs. McCaul and MacGeehin is preferred to that of Messrs. Molloy and McNelis. They do not say which evidence of Mr. McCaul is preferred - his cross-examination evidence being much closer on important matters to the evidence of Mr. Molloy than to his own affidavit evidence. It is assumed that the Judges wish to accept his affidavit evidence only, because apart from a passing reference to a series of questions asked of him by Judge Humphreys his cross-examination is not mentioned at all in their Judgment.                                                                                      This is not a small issue. When Mr. MacGeehin claimed that Mr. McCaul attended settlement talks on May 17th 2019 and Mr. McCaul contradicted this (agreeing with Mr. Molloy's unchallenged affidavit evidence on the matter), the former claim was accepted as fact in the Eighth Judgment and not mentioned in the 'Ninth'. The Judgments therefore call into question the whole purpose of cross-examination, which is the uncovering of truths which might be misremembered or deliberately concealed. This is unacceptable. 

9. The Judgment of the Court of Appeal is probably correct in finding fault with ATSL's not challenging Mr. Dully on paragraphs 3 and 6 of his November 1st 2019 affidavit. ATSL found the first sentence confusing, in that the statement referred to is contained within a conjunction secondary to Mr. Dully's  saying that ''all directors and shareholders of the First Named Defendant were present when the settlement was advised to the Court'' (it is notable that Mr. Dully makes a point of the importance of the shareholders being present) - which was understood to be a contradictory attempt to bind Mr. Molloy to the 'settlement' by inferring that he didn't raise an objection to it to the Court i.e. the first statement claims standing from the argument of what follows it.                                                                                    While, for clarity's sake, Mr. Dully should have been cross-examined on the statement, the point is moot as Mr. Dully did not choose to appeal the October 15th 2019 Judgment of Humphreys J., which clearly shows at paragraph 8 (iii) that no party on May 23rd 2019 suggested that Mr. Molloy was in any way involved with the 'agreement' (removing any onus on Mr. Molloy to object to the court, outside of his obligation or not to do so on behalf of ATSL). Judge Humphreys has never ruled that Mr. Molloy was bound as an individual litigant to the 'agreement'. It is most unusual for a Judgment to attempt to override a previous Judgment without reference to same. 

10. This is not the first time that Mr. Dully has used the language of faux exasperation in an attempt to press ATSL into a settlement against its wishes. In paragraph 11 of his August 25th 2017 affidavit, he refers to a mediation meeting in May of that year. Getting fifteen months ahead of himself in calling Messrs. Temple, Molloy and McCaul ''the Defendants'', he says that they ''have failed, refused, or neglected to confirm their position and/or to execute the Mediation Agreement in the terms as discussed between the parties''. The similarities between the two 'agreements', the people involved and the general dynamic of trying to equate one side's will with a shared obligation are striking.                                            In May 2017 the 'agreement' was for the property to be transferred free of charge to the FAI (although, as an addendum to the 'agreement' the mediator added a non-monetary payment from the FAI to Mr. Molloy). In May 2019 the 'agreement' was for the property to be transferred to an unknown entity with a E50,000 dowry from ATSL and two further payments of E25,000 from each of Mr. Temple and Mr. McCaul.                                                                                                                                                        Mr. Dully did not attend on either occasion.                                                                                                  In May 2017 the club was represented by its chairman John Hayden and its vice-chairman Martin Collins, and by its barrister Martin Durack BL. In May 2019 the club was not represented but the plaintiff was purportedly represented by John Hayden and Michael O'Connor, and by his barrister John Paul Shortt SC and solicitor Richard Stapleton.                                                                                                In May 2017 ATSL was represented by its directors Cieran Temple and Paddy McCaul; it had no legal representation. In May 2019 ATSL was purportedly represented by its directors Cieran Temple and Paddy McCaul; it had no legal representation.                                                                                                   Mr. Molloy chose not to attend the negotiations in May 2017 and was not invited to negotiations in May 2019 (it is striking that while these proceedings may appear on the surface to be a battle between Messrs. Dully and Molloy, neither man has been called upon to approve any settlement of same).                 In May 2017 all of the attendees were strongly in favour of the 'agreement'. In May 2019 all of the attendees were strongly in favour of something close to the 'agreement'.                                                        Contrary to Mr. Dully's August 25th 2017 averment, all of the attendees in May 2017 accepted that no agreement could be reached without the blessing of ATSL's majority shareholder. 

11. While the Judgment is strident in defining ATSL's failure to challenge a line or two in Mr. Dully's affidavit as fatal to its case, swathes of the Appellant's unchallenged evidence do not get this treatment. Mr. Molloy's unchallenged November 18th 2019 affidavit gets short shrift, its crucial paragraph 20 no mention at all. His replying affidavit of July 15th 2020 is ignored to the extent that the Judges claim that ATSL's constitutional documents ''were not furnished to this court either''.                                                      It is difficult for a litigant to win a case when its evidence in challenged and credible evidence put in its stead. It is well nigh impossible for a litigant to win a case when its evidence goes unchallenged, then is ignored by the Judges.

12. The unchallenged affidavit and documentary exhibit evidence of the ATSL project team leader, businessman Tom Burke, has been ignored in its entirety. 

13. The unchallenged affidavit and documentary exhibit evidence of the former club treasurer, accountant John Comber, has been ignored in its entirety.

14. The unchallenged affidavit and documentary exhibit evidence of the ATSL accountant Philip O'Farrell has been ignored in its entirety.

15. The unchallenged March 22nd 2019 affidavit and documentary exhibit evidence of ATSL chairman Cieran Temple has been ignored in its entirety.

16. The December 4th 2019 cross-examination of Paddy McCaul has been ignored in its entirety.

17. The December 4th 2019 cross-examination of Colm MacGeehin has been ignored in its entirety. 

18. The December 3rd and 4th 2019 cross-examination of Declan Molloy has been ignored in its entirety. 

19. Notwithstanding counsel's trust in the veracity of Mr. Molloy's evidence (he was not even challenged on his quoting of text messages in his November 18th 2019 affidavit), it appears that the Courts themselves take a contrary view of Mr. Molloy's evidence in general. This appears to stem from the opinions expressed by Humphreys J. in his (First) Judgment of April 12th 2018. Some of these opinions are reproduced at paragraph 20 of the Court of Appeal Judgment. It is difficult to refute allegations absent of specificity. For the main appeal, it will be necessary to take up the DAR and examine what Mr. Molloy actually said under cross-examination on April 12th 2018 and how it compares with subsequent evidence brought before the Court.                                                                       Mr. Molloy contends that he was honest and truthful at all times (if occasionally confused as to whether the word ''you'' in questions referred to his company or to him personally) and that his evidence was vindicated in the unchallenged March 22nd 2019 affidavits of Tom Burke, John Comber, Philip O'Farrell and Cieran Temple. For one thing, he is adamant that he did not tell the Court that his entire investment in ATSL was put down as a loan, but that everything he invested above E450,000 was put down as a loan. 

20. This error over the terms of his investment, if it is indeed an error, plays into the narrative that Mr. Molloy has used these proceedings to regain (and even profit from) his original investment in ATSL. This portrayal is 'supported' by unsubstantiated claims that he intended to sell the stadium (despite having never owned it, despite investing heavily in the club that played there and despite granting a supposed power of majority to two directors with a habit of letting the property slip through their fingers) and by a history of having little choice but to negotiate with the FAI - which doubled as indulgent regulator of the club and aspirant owner of the stadium.

21. Mr. Temple's purported letter dated 27th July 2019 is dealt with in Mr. Molloy's January 14th 2020 affidavit, which affidavit (being apropos of nothing) is surprisingly acknowledged in the Court of Appeal's Judgment. Although hearsay, in the absence of Mr. Temple's giving evidence it is the only account of how the letter (which was sprung on Messrs. McNelis and Molloy in cross-examination two days before it was exhibited with Mr. MacGeehin's December 5th 2019 affidavit) came into being; it is a precise retelling of Mr. Temple's own recounting of the facts at his meetings with ATSL's solicitor and counsel a fortnight after the hearings and with Mr. Molloy a day or two later. The Judges claim that the letter is what, at first glance, it appears to be  i.e. that Mr. Temple does not know how to spell his own name. Not recognising that there is a credible (or even incredible) sworn alternative to recognising the letter's authenticity detracts from the even-handedness to which every Judgment should aspire.

22. It is extraordinary that a 139 page Judgment, especially one that so faults ATSL for not cross-examining Mr. Dully, can deal with all of the cross-examinations preceding the Eighth Judgment with the sentence ''The hearing days of 29 November to 4 December were largely taken up with the cross-examination of Mr. McNelis, Mr. Molloy, Mr. McCaul and Mr. MacGeehin on their respective affidavits''. There is not a single quote or material reference from more than two full days of cross-examinations. Nor is there any reference to the highly unusual, if not unprecedented, May 22nd 2019 day long cross-examination of Mr. Dully on the affidavits of Messrs. Burke, Comber, O'Farrell and Temple.

23. A peculiarity of proceedings is that counsel for ATSL claim that it is governed by a simple majority among its directors in all decision making. But Mr. Molloy was advised by his solicitor that only he needed to attend settlement talks on May 17th 2019. And Messrs. McCaul and Molloy have confirmed that they were advised by their shared junior counsel on May 23rd 2019 that ''All the directors have to agree'', which may (or may not) have been a diplomatic way of saying that the shareholders held sway over any decision. That was the accepted reality at the May 2017 mediation. Messrs. Delaney's and Molloy's were the only names on the June 2017 Memorandum of Agreement between the FAI and ATSL (which is presumably why Mr. Dully chose to mislead the Court by exhibiting an amended version with his affidavit of November 22nd 2018 - which version removed Mr. Molloy's place for signing). In Mr. Temple's March 5th 2020 affidavit, he avers that ''Mr. Molloy had at this stage largely taken the reins in relation to the running of the stadium and Mr McCaul and I did not see ourselves as exercising anything more than a general administrative function in our directorship roles, which I understood were roles which simply needed to be filled.'' And the plaintiff, in his aforementioned affidavit, states that ''... it was believed at all times that the majority shareholder controlled the direction which the defence of the proceedings was taken (sic)'' and that September 11th 2018 was the first day ''on which it was indicated to the Court that the company could act by way of majority vote of its Directors notwithstanding the shareholding entitlement that each party had''.

24. Both Judgments' belief that the setting aside of the damages decree in the 'agreement' benefitted each of the three directors is based on a fallacy. The transference of the liability from company to directors could not have happened without its being initiated through a judicially inept interpretation of the 'Mooreview' precedent. Unlike in 'Mooreview', none of the three directors was the moving party behind the litigation, nor was their company. None of the three was ever put on notice that he might be pursued for damages for funding his company's defence. As it was well known that Mr. Molloy was funding his company's defence, the pursuit of Messrs. Temple and McCaul was an absurdity which ultimately pressured them into jumping ship to join with whatever 'agreement' came their way.

25. Much is made in the Judgments of the Courts' preference for the doctrine of indoor management to prevail over the doctrine of constructive notice. Every possible illegality gets sidestepped through the notion that Mr. Dully and his two negotiators could not be expected to know what was going on inside ATSL. No weight is given to fact that all the parties had been involved in a High Court case for 22 months before the 'agreement'. And no mention is made of likely real world procurements of knowledge, such as one negotiator having professional connection to Mr. McCaul (then going back 17 years) and personal friendship (going back much further), nor of the other being a barrister with (then) 7 years of experience of dealing with ATSL in and out of courtrooms and his being asked by the club 20 years earlier to provide professional advice (on the FAI's request) for its affairs to be incorporated as a limited company in order to build a football stadium. Mr. Dully for his part was able to exhibit two private ATSL/FAI documents with his November 22nd 2018 affidavit, without revealing his source.

26. Whatever about anything else, the indoor management rule cannot apply in the case of ATSL's creditors. Westmeath County Council's being a creditor of ATSL is acknowledged in paragraph 71 (viii) of the First Judgment in this case, in Mr. McCaul's exhibition of the Deed of Transfer with his September 5th 2018 affidavit, in Mr. Dully's exhibition of two sets of ATSL's audited accounts with his affidavits of November 22nd 2018 and May 25th 2020, in Mr. O'Farrell's unchallenged March 22nd 2019 affidavit and in its being central to the putative May 21st 2019 agreement.                                            Mr. Dully's exhibits also demonstrate directors' loans of E90,000, as does Mr. O'Farrell's affidavit which specifically ties these loans to Mr. Molloy. Mr. Molloy's loans were also averred to in his oral testimony (which is accepted as fact by Humphreys J. as it is not contradicted by either Mr. McCaul or Mr. MacGeehin) and even in the Eighth and 'Ninth' Judgments. How Mr. Molloy can be said not to be bound to an 'agreement' and then forced to have money that is acknowledged as his confiscated in adherence to same 'agreement' defies the most basic understanding.                                                                 Judge Murray's saying on November 11th 2020 that the Westmeath County Council charge ''would have'' moved with the property is incorrect. 'Should have', certainly. ATSL cannot prove a negative. The onus was on Messrs. Dully and McCaul to provide evidence that the charge did move with the property, but they didn't and they never made any such claim.                                                                                          The law is clear. There can be no settlement without the approval of ATSL's creditors. 

27. Mr. Temple's grounding affidavit of March 5th 2020, which I understand to have been unchallenged by Messrs. Dully and McCaul (and which appears to have impressed the Judges of the Court of Appeal), gives a detailed account of his understanding of the events of May 23rd 2019, which is summarised as follows:                                                                                                                                          (i) He was advised to be present on that day for a hearing, not for settlement talks.                                  (ii) He was informed that the plaintiff ''required'' a transfer of E100,000 to ''the club'' and he had                     ''no difficulty at all with this'' - his understanding being that the entirety of the transfer                               ''would be financed by Mr Molloy''.                                                                                                    (iii) He has no information whatsoever on (or apparent interest in) what was to happen to his                          company's assets (apart from the E50,000 which was loaned to ATSL by Mr. Molloy) and                        into whose hands the stadium would be delivered.                                                                                iv) He has ''since learned'' that ''Prospect Law and the solicitors for the Plaintiff prepared an                          agreement document''. The document, ''insofar as I understood it'', was ''drafted in a way to                      include Mr McCaul and I as being jointly and severally liable''.                                                             (v) Regarding issues surrounding the apparent illegality of the settlement, ''None of this                                information had been communicated to either me or Mr McCaul by our own personal                              advisors on 23 May 2019''.                                                                                                            His account is consistent with his and Mr. McCaul's telling Mr. Molloy that he was asked to leave the    negotiations at an early stage by Mr. Hayden and did so.                                                                                 Mr. Temple was clearly not a part of the negotiations in any meaningful way and had no say in the final written 'agreement'. He cannot be a party to any settlement.

28. Mr. McCaul, who could reasonably be said to have been at all times supportive of the 'settlement', was not asked by his legal team on May 23rd 2019 if he approved of the final written 'agreement' - as drafted by Cormac O Dulachain SC. What was announced to the Court was not what he had agreed with Messrs. Hayden and O'Connor. Paragraph 20 of Mr. Molloy's unchallenged November 18th 2019 affidavit gives a fly-on-the-wall account of how what Mr. McCaul had agreed was changed in front of him.                                                                                                                                                                    Under cross-examination on December 4th 2019, Mr. McCaul said ''Well, the wording - I didn't formulate it really'' and ''to be honest with you, I don't know why that wording was put in''. He said that the wording was finalised ''about 10 minutes before it had been read into the court''. Asked if there was a meeting, a discussion and a vote in those 10 minutes, he said ''No, not really, no''. Answering Judge Humphreys' question ''... are you saying that the three of you, the three directors, got together somewhere outside the court and talked about (the written 'agreement')?'', he said ''No, no we didn't''.         When Mr. MacGeehin was asked if there was a meeting in those 10 minutes, his reply was ''We got the terms of settlement and I think we went off and got those typed, just my memory is poor on this, we went off and got those typed just in accordance with the - with the terms that were written down, or taken down, and we were fairly certain that those were the terms, and that was confirmed to us, that those were the terms''.                                                                                                                                        Mr. McCaul's legal representatives had no authority to settle the case without presenting him with the terms of the settlement and granting him the opportunity to make an informed decision. It is clear that not one of Mr. McCaul or Mr. Temple or Mr. Molloy instructed Mr. MacGeehin to put the written 'agreement' before the Court.

29. The plaintiff/first respondent is to be commended for a consistency of messaging in the presentation of his case. All of it basically boils down to one document, a purported Deed of Trust signed on April 23rd 2015, whether it is legally valid and if so, how it is to be interpreted. ATSL has not helped its case with its fluctuating understanding of the document, generally following the legal advice du jour. The High Court has complicated matters by changing the beneficiary of the purported trust, without explanation, to an Athlone Town Athletic Football Club.                                                                                   When Mr. Dully's company Athlone Town AFC CLG applied successfully in July or August 2018 to take on board the E2,800,000 charge to the Minister for Transport, Tourism and Sport it was making a statement - that it was a serious and responsible company, ready to accept the longstanding debts that went with the property. But it was a lie. The E2.8 million was a loan with an expiry date, effectively a grant. It chose not to take on the E507,895 Westmeath County Council charge, which wasn't going to go away, and presumably had some long term plan to go with with this deception. The consent of the charge-holders should have been sought prior to the signing of the Deed of Trust, and subsequent events have shown that they would have been well advised not to have given it.

30. The directors of ATSL were probably not aware, certainly not made aware by their legal advisor Mr. Egan, that independent of their signing the Deed of Trust they were still bound by the main object of their company as set out in ATSL's constitution i.e. the provision of sports facilities and activities for the people of Athlone. It did not allow them (and it was not their intention regardless) to officially limit that object to the members of Athlone Town Association Football Club.                                                                 Had the approval of the Revenue Commissioners been sought and given to change the constitution in order to facilitate the club, then the trust would hold a modicum of validity. As things stand, the signing was ultra vires the company itself and, if leading to a transfer of the property, clearly a prohibited distribution. Even if vested in a public or semi-public body, the transaction would provide a massive dividend for same. It would not matter if 100% of the shareholders of ATSL wanted to do so, that would not make it lawful. No matter how well presented was Mr. Dully's case, it is remarkably flimsy and should never have been allowed to have taken up so much of our Superior Courts' time.

31. An even more flimsy document is of course the 'agreement' (see below) itself. Although it purports to be a legal contract, nobody has met to endorse it and nobody has deigned to sign it.                                 Mr. McCaul is in an unusual position, in that under Item 10 of the April 12th 2018 High Court order he is barred from entering the stadium premises without the consent of Mr. Dully, yet he will be considered essential to arranging the transfer of the legal title of same premises. No explanation is given as to why Mr. McCaul must be a member of the topic-specific committee but Mr. Dully is barred (a person can apply to be nominated but cannot nominate himself), nor whether the committee can exist if ATSL fails to supply a companion for Mr. McCaul (given that there is no court order for it to do so), nor as to what are its terms of reference (eg. how it deals with resignations), nor whether those with obvious conflicts of interest (the only two committee members brought to ATSL'S attention to date are the extravagantly conflicted Mr. McCaul, a shareholder in ATSL, and a Mr. Frankie Keena who is Cathaoirleach of ATSL's largest creditor) are admissible, nor on whether there is any numerical limit on Mr. Dully's nominees, nor on whether any of  Mr. Dully's nominees require an expertise in areas such as legal conveyancing or tax accounting given that ATSL has no one in that line, nor what are to be the terms of the trust, nor further as to what are the criteria for establishing the committee's decision, most particularly whether its voting rules are bound somehow by the constitutional documents of both present and previous owners or subject to a new agreement between the two companies and the plaintiff.                And all of this serves the picking of an entity to hold the property in trust for (assuming that the club no longer exists, though the club is pegged to get the full E100,000 cash transfer) something which is called  ''any successor club''. No indication is given as to whether the successor club was already chosen on May 23rd 2019 (presumably by the members of the club at their last meeting) and if so, why it wasn't named in the document. And if not already chosen, no indication is given as to who would have the right to choose it. It should not be assumed that it is Athlone Town Athletic Football Club any more than it could be Willow Park FC or St. Peters FC. Nothing should be assumed in a court of law.                                Most importantly, the 'agreement' has no protections whatsoever for the public's investment in the facility.                                                                                                                                                                  It is little wonder that counsel for ATSL described the 'agreement', without contradiction, on October 15th 2019 in the following terms: ''... the thing is manifestly unlawful and since the company would be affected it beggars belief that terms of that nature would be put to a court in the 21st century, even a hundred years ago something like that would be rejected by the judge.''

32. Both Judgments basically hold that the normal rules accruing to the distribution of a company's assets, such as the requirement for a special resolution from 75% of its shareholders or (if a CLG) 75% of its directors, don't apply in this case because those assets are considered worthless i.e. ATSL's appeal has no chance of success (though the 'Ninth' Judgment contradictorily says that it has some chance). The Court of Appeal Judgment says that ATSL needed to have provided an ''expert'' to explain why it would have won the appeal. This expert would presumably have to be a retired Court of Appeal Judge.  Messrs. McCaul and Dully would presumably then be required to bring their own retired Court of Appeal Judges, one each so that the issues could be argued before the requisite number of Judges needed to form a Court of Appeal opinion. A court within a court, or iuris reductio ad absurdum. 

33. Points 1,12, 13, 14 and 15 above should be irrelevant to this appeal, but the Court of Appeal Judgment has made them relevant through its decision to run a hearing of sorts of the main appeal among the Judges, without allowing ATSL to prepare and present its case.                                                            That said, here are the most obvious points of the main appeal:                                                            (i)   The April 12th 2018 (First) Judgment contains 15 serious errors of fact, 12 of which are                            convincingly corrected in the unchallenged March 22nd 2019 affidavits of Tom Burke, John                   Comber and Philip O'Farrell.                                                                                                                 (ii)  The broad injustice of transferring a publicly funded facility from a charitable purposes                            company to a private for-profit company - as succinctly explained in the unchallenged March                  22nd  affidavit of Cieran Temple. The transfer also happened without sight of the terms of the                  Deed of Covenant between  ATSL and the Minister for Sport, then owed E2,800,000.                        (iii) The plaintiff's lack of locus standi i.e. his failure to secure a representative order, his failure to                 prove that he was ever a trustee of the club, his failure to give notice of proceedings to the                       honorary members of the club (so that they might have the option of resigning rather that be                     exposed to costs liabilities without their knowledge) and his failure to secure a vote of the                       club members or executive committee of the club in support of his action.                                          (iv) The plaintiff's failure to provide the court with a legitimate copy of the constitution of the club                 and with the Pre Season contracts (in relation to its legal status within the club structure and                   in  relation to its possible 'ownership' of some percentage of the stadium property).                            (v)  The illegitimacy of the Deed of Trust 'contract' (see points 29 and 30 above).                                       (vi) The Judgment's switching of the beneficiary of the purported trust from the club to an                             'Athlone Town Athletic Football Club', without any application from the plaintiff for the                          switch or his providing the Court with any information as to what 'Athlone Town Athletic                        Football Club' might be.

34.  The Judgments' claims that ATSL has clearly benefitted from the 'agreement' are difficult to fathom. ATSL's principle activity is, unsurprisingly, ''operation of sports arenas and stadiums''. Messrs. Temple and McCaul could be said to have benefitted, possibly even Mr. Molloy. But a litigant which has had its raison d'etre, all of its assets taken away cannot be said to have benefitted in any way. That a stadium operator without a stadium would have to be wound up is so obviously an outcome of the 'agreement' that it shouldn't need stating. But it needs stating, and it needs a special resolution of the company to even approach legality.

35. That said, ATSL does have an unanswerable claim to indemnity if its assets are to be taken away.           While Messrs. Temple and McCaul could be said to have benefitted from the 'agreement' as it stands, that is far from the case. In purporting to settle on behalf of their company, it would have been necessary for them to partake in a prohibited distribution. ATSL could only legally (at least in retrospect) settle for the amount by which the book value of the stadium exceeded the value of any consideration for the disposition. The relevant book value for 2018 (as helpfully exhibited with Mr. Dully's May 25th 2020 affidavit, in accounts which Mr. Temple signed) was E3,535,107. In other words, under Section 117 of the Companies Act, ATSL would be owed that sum minus the costs of the High Court (which, according to the Eighth Judgment, ''would run to several hundred thousand euros'') minus the costs of the Court of Appeal (''which would also be likely to be significant'') plus the E50,000 High Court security for costs. Under Section 122 of the Companies Act, all of this liability (somewhere in the region of E3 million) will, if this appeal fails and the 'agreement' stands, fall on Messrs. Temple and McCaul.                                   Prohibited distributions normally take place when directors take action without seeking legal advice. In this case, the distribution to the two directors on May 23rd 2019 took place under close legal supervision. Whether or not the implications of their action were adequately explained to the two directors is a matter for and between them and their representatives. Remarkably, the two Judgments have chosen not to mention this issue. That they have chosen not to mention the issue even after it was included in oral submissions by counsel for ATSL on December 5th is unprecedented. Counsel for Messrs. McCaul and Dully were not given a chance to respond to the submission on that date, but they made no response to the submission at the Court of Appeal hearings. 

36. Contrary to his depiction as a borderline criminal by our Courts, Mr. Molloy has at all times endeavoured to balance his obligation to look after the stadium for the people of Athlone with his desire to see his family club prosper. He has invested large sums of his own money in both and not asked for anything in return, except that agreements be honoured. He has certainly made mistakes along the way, but none out of malice or self-interest. His investment in the stadium, the indemnity in what these Courts have considered a valid trust, loans to pay the legal fees of Mr. Temple (who gets 26 Judgment paragraphs dedicated to his appeal while Mr. Molloy gets 2) and Mr. McCaul, loans to pay the costs and securities for costs of ATSL  -  all are deemed worthless and even suspect by our Courts. A mob boss who'd got on the wrong side of the Criminal Assets Bureau would receive more protection from our justice system. 

37. If the Courts are determined to remove the property from a charitable purposes company with an object of holding it for the people of its town, a prohibition on the remuneration of its directors and an obligation to submit annual audited accounts, then the onus is on the Courts to make sure that at the very least, a watertight contract exists which guarantees that all of these qualities will be demanded of the new owners. The 'agreement' fulfils none of these criteria. 

[Apologies for advocating on my own behalf, but no barrister is ever going to do it, so it's nice to pretend.]

     On February 28th our solicitor Mr. Cunningham informed me that our counsel Mr. Dixon ''... is not in a position to do it''.

      On March 22nd I got a positive phone call from Mr. Cunningham. He sounded reluctant, but he said that we didn't need a barrister for the Supreme Court. He could do it himself. I'm not naive enough to believe that the barristers won't expect to bring/keep Mr. Cunningham in line, in much the same way as they keep their own in line. But at least he is willing to consider the possibility of putting client interests before barrister interests. And that is an important breakthrough for us. 

     Why we will win? Simple. The truth can be suppressed but can never be removed. There is always a way, provided that good people are prepared to take a stand against sleaze. The law is on our side and the law belongs to the citizens of this country, not to solicitors or barristers or judges. They all work for us, and sometimes they need to be reminded of that. Michael O'Connor, John Hayden and David Dully may be lovable scamps, but wanting to see them get on in life doesn't permit any Judge or barrister to disrespect the law.