Affidavit

I .... MAKE OATH AND SWEAR etc.

2. This affidavit is made to support a Notice of Motion seeking an order of the High Court to have the amended 23 May 2019 Court Order in this case vacated.

                                                                 BACKGROUND

3. I am a director and 97% shareholder in Athlone Town Stadium Limited (hereinafter 'my Company'), a charitable purposes company which looked after Athlone Town Stadium on behalf of the people of Athlone. I bought control of my company in 2011, when it was in danger of falling into private hands, by paying off its debts of E665,445. A suggestion by then director Paddy McCaul to ease the financial pain to me by taking advantage of a forthcoming VAT rebate to my Company was adopted by the accountants who were in charge of the transaction and was formalized in a Heads of Agreement signed by the directors and by me on 7 June 2011.

4. Following the VAT rebate, E100,000 was transferred to me in April 2012 and E21,445 in June 2013, leaving the effective purchase price at E544,000. After long negotiations with the struggling Athlone Town Association Football Club (hereinafter 'the Club') which rented the stadium from my Company, I invested E75,000 in its cooperative project.

5. Contrary to the impression given in a number of judgments and in the media, I have never sought to make a profit from my investment and doubt that such a thing is even possible. I have never taken one cent from my Company for personal expenses nor for anything else. My only selfish motivation has been and remains to clear my name from the attacks on it in the judgments of Mr. Justice Humphreys. My Company has been dormant for a number of years pending a resolution to its being sued by David Dully in 2017.

6. On 23 April 2015 my Company signed a purported deed of trust and new lease with a 60% reduction in rent, in an attempt to get the Club to pay the rent and insurance it had been refusing to pay since being effectively taken over by three men in 2013. The Club failed to honour the 23 April 2015 agreement and instead threatened my Company with the High Court if it failed to sign over the property to David Dully and John Hayden. Messrs. Dully and Hayden were purporting to be trustees of the Club and later claimed in court to be the only surviving trustees of the Club. Neither man had in fact been appointed a trustee according to the rules of the Club and there were at least four legally appointed trustees who were alive and well. Among these was Paddy McCaul, a director and shareholder of my Company - though there was an issue with this when he became President of the Football Association of Ireland (hereinafter 'the FAI') and it is not clear if he reverted to being a trustee of the Club post-Presidency.

7. With my Company under extreme pressure from no longer being able to pay the stadium insurance on the Club's behalf, I very reluctantly agreed in June 2017 to sell the Stadium to the FAI (for 20 annual payments of E30,000), which had refused to take any action against the Club. The FAI sent a contract to the Chairman of my Company which had places for signing for me and for the FAI CEO John Delaney. A clause had been inserted into the contract which made it very likely that I would receive E30,000 in 2017 and would not receive the E570,000 balance until nineteen years had passed, if at all. I declined to sign the contract and instead decided to trust in the integrity of our courts. Because of the considerable trouble the Club was in at the time - due to its widely publicised connections to the organised crime front company Pre Season - I did not expect that a court of law would give Garda Dully's claim the time of day.

8. The FAI was heavily involved in the High Court proceedings from the first day, when its counsel stood in front of Garda Dully's counsel in the Master's Court to emphasise its support of the plaintiff's action. The early days of the case appeared to go very well for my Company and the FAI chose to enter negotiations with my Company, which were carried out by the parties' respective legal representatives. I was assured by my Company's solicitor that the FAI would finally buy the stadium and would do so by covering all of my expenditure, but this did not happen. With a final agreement apparently in abeyance, my Company's counsel advised us to accept the validity of the deed of trust, in order that the FAI would be forced to step in to honour the indemnity therein. I and the other two directors/shareholders accepted this advice and that was the last I saw of the FAI in the High Court. From that point on, my Company was trapped with being defined as a trustee of the Club and I was depicted as someone pushing to take money from a community-driven club. The High Court and Court of Appeal would later rule that the indemnity was worthless.

9. On 12 April 2018, my Company was ordered to hand the property over to the private interests company Athlone Town AFC CLG, whose members were David Dully, John Hayden and Michael O'Connor. The public interest in the stadium was not taken into account, and no consideration was given to the huge investments made in the property by the Irish people (through the National Lottery), the members of the Club (through St. Mel's Park) and me. The interests of the creditors of my Company were similarly disregarded.

10. The court granted liberty to Garda Dully to sue my Company for damages and on 14 November 2018 it awarded him everything he had asked for - E160,673.05, made up of E134,695 directly attributable to documents which had been planted with the exhibit to my 9 April 2018 affidavit and E29,978.05 which Garda Dully claimed the Club had paid for the renting of training facilities in Dublin and Athlone. The judgment ordered that the E160,673.05 be ''held in trust for the members of Athlone Town Athletic Football Club''. Those terms were significantly altered in the court order which was perfected on 4 December 2018; ''for'' was changed to ''by'' and ''Athlone Town Athletic Football Club'' was changed to the non-specific ''Athlone Town AFC''. This allowed the Club's purported management company Athlone Town AFC CLG  to gain control of the monies without taking on any obligation to provide for the non-national Pre Season members who formed all, most or some of the secretive Athlone Town Athletic Football Club.

11. The 14 November 2018 judgment also granted liberty ''to the plaintiff to bring a motion seeking to have the directors of the defendant held personally liable for the costs and if deemed necessary damages'' and no change to this threat was made in the perfected court order. My expectation was that I would be made liable for 97% of the costs and 97% of the damages. It was at this point that I began to take advantage of the opportunity being a personal litigant gave me to fight back. 

12. With the vital assistance of my new legal team, Garda Dully's attempt to use our courts to facilitate a shakedown was itself used to turn the entire case on its head. A huge amount of previously ignored evidence was exhibited with the 22 March 2019 affidavits of Tom Burke, John Comber and my Company's accountant Philip O'Farrell. 

13. Before the affidavits of Messrs. Burke, Comber and O'Farrell were drafted, an 11 February 2019 court order had ordered ''that all deponents to include any new deponents be available for cross examination at the hearing of the within proceedings unless it be determined that they are no longer required''. I may be mistaken in considering that an unusually aggressive order towards deponents who were giving up their time in order to assist the court, but it certainly would have seemed prescient in light of my solicitor failing to have any of Messrs. Burke, Comber and O'Farrell turn up for cross examination on 23 May 2019. Had the cross examining commenced, they would all suddenly have been in criminal contempt of court and could have expected at the very least to have had their affidavits struck out. 

14. I had been advised by a member of my legal team that I needed to be seen to be open to engaging with the idea of settlement, otherwise the court would take a poor view of my case. It was only subject to this advice that I agreed to terms under which a settlement might be possible. The agreed terms of negotiation were recorded in undated minutes of a meeting of my legal team during the week before the May 2019 hearings began. A copy of the minutes is marked *DVM 1* and I have signed this exhibit prior to the swearing thereof.

15. I travelled alone to the High Court on 17 May 2019, where a calculatedly ridiculous offer was made by Garda Dully's representative Michael O'Connor for me to hand his company the stadium and half a million euro. I could feel that something bad was about to happen, but I hadn't yet worked out how it would play out. 

16. On 21 May 2019, the first day of the hearing, Garda Dully nodded at Paddy McCaul in a stilted fashion from atop the steps outside Courts 24 and 25 and Mr. McCaul climbed the steps to speak to him. This was purportedly the start of new settlement negotiations. It soon became obvious that my agreed terms of negotiation meant nothing and I was presented later in the day with a contract for agreement with places for signing by Garda Dully, Paddy McCaul, Cieran Temple and me. E100,000 was to be given by the directors of my Company to Garda Dully's solicitor while Westmeath County Council would pay my Company E250,000 and take ownership of the stadium. It was a bad deal, but nowhere nearly as bad as might have been expected. Crucially for me, public ownership of the property would be restored. But solid information from my Company's solicitor that the three members of Athlone Town AFC CLG intended to have the property developed for housing (it has recently become apparent that probably only one third of the property would have been developed) convinced me that it was a bluff. Expected, I thought, to say 'no', I decided to say 'yes' but wasn't asked to sign the contract. Garda Dully then said 'no' and negotiations were said to have broken down. 

17. The cross examinations commenced on 22 May 2019. but they were not what might have been anticipated. Garda Dully was cross examined for the full day, not on his own affidavit - because there wasn't one - but, bizarrely, on the affidavits of Messrs. Burke, Comber and O'Farrell which he had not challenged. 

18. It came as no surprise to me when, on May 23 2019, we were told that we were in trouble because none of our new deponents had turned up. A purported resolution by settlement with no places for signing was presented to the court later that day, when legal representatives on all sides claimed a right to settle the entire case on behalf of the plaintiff, my Company and two of my Company's directors - Cieran Temple and Paddy McCaul - but not on my behalf. I stayed around the court, observing events and trying to sabotage them where possible. My staying around would be used against me in judgments to imply some level of complicity on my part. But had I gone home, as might have been expected, that would also have been used against me and probably in a more effective fashion. I believe that likelihood was the reason why Garda Dully chose not to attend court on that day.

19. Though Cieran Temple was at all times eager to have the stadium property moved into different ownership, he could only be said to have participated in the purported settlement on 23 May 2019 by giving free rein to his legal representatives. He received no warning of the dangers of engaging in a prohibited distribution, was refused access to what might be called 'the official settlement meeting' with John Hayden, Paddy McCaul and Michael O'Connor, and - per paragraph 23 of his 5 March 2020 affidavit to the Court of Appeal - only discovered he was on the hook for E25,000 ''in the weeks after that purported agreement was made''. His version of events was later endorsed by Garda Dully when Mr. Temple's affidavit was used as Exhibit DD 8(8)  to his 25 March 2020 affidavit to the Court of Appeal.

                                                                     THE AMENDED ORDER

20. On 15 October 2019, Mr. Justice Humphreys described my averment that the court was not told on 23 May 2019 that I was part of the claimed agreement as a ''red herring''. But after listening to the DAR of 23 May 2019, he had to change his mind. He referred in paragraph 7 of the judgment delivered that day to ''errors of the kind that arise here, where the wording of the perfected order does not reflect what actually happened on the day''. He went on to order that five amendments be made to the 23 May 2019 order, including to note that I was not a party to the agreement. This obviously came as a great relief.

21. The ordered amendments are summarised as follows:                                                                                  (1) the title to include the three new defendants                                                                                            (2) noting the presence of counsel for the three new defendants                                                                  (3) noting that counsel for the three new defendants informed the court that the undertaking was                    being given on behalf of the first, third and fourth named defendants only                                            (4) removing the order that my Company discontinue its appeals                                                                (5) removing the name of the solicitors for the first named defendant and replacing it with the                        name of the solicitors for the three new defendants

        The first, second and fifth ordered amendments are revealing, as they reflect the desire of the lawyers to make the settlement about my Company only, but they are of no great consequence compared to the other ordered amendments, especially the third.

22. The 23 May 2019 order had been certified by the registrar Louise Evans on the following day. It was the only one of the 25 orders in the case to be signed. Four of the flaws could, at a stretch, be put down to human error, but the fourth could not. No explanation has ever been offered for why Ms. Evans chose to add to the order a paragraph saying that my Company must ''discontinue the Appeals lodged with the Court of Appeal''.

23. Ms. Evans certified the amendment of the 23 May 2019 order on 1 November 2019, though she had not been the Registrar in court on 15 October 2019. Incredibly, her amendment obeyed none of the five directives of the 15 October 2019 order and left the original order unchanged. The amended document was filed between 4 November 2019 and 13 December 2019. I was never provided with a copy of the amended order, and I did not know of its existence in that form until I began to research this affidavit. Copies of the original 23 May 2019 order, the 15 October 2019 order and the amended 23 May 2019 order are bundled together with a copy of the 'Agreed Statement to the Court' and marked *DVM 2* and I have signed this exhibit prior to the swearing thereof. 

24. A four day hearing in the High Court began on 29 November 2019. The hearing concerned an appeal by my Company against the settlement, which I had wrongly considered a formality after the 15 October 2019 ruling. My non-compliance with the settlement was acknowledged in the 6 December 2019 judgment and the deletion of the Appeals part of the original 23 May 2019 order was claimed to have happened at paragraphs 3 and 14.

25. The 6 December 2019 judgment was appealed to the Court of Appeal and a remote hearing took place on 10 November 2020. The Court of Appeal's 17 December 2021 judgment also acknowledged my non-compliance with the settlement but muddied the waters by emphasising it in the context of my Company's position and by saying that I hadn't proved that I wasn't involved.

26. The judges of the Court of Appeal dealt with the amendment in a clever but dishonest manner. An order which is of course both the original 23 May 2019 order and the amended 23 May 2019 order is printed in full at paragraph 36 of the judgment, following words (''The Order records as follows:'') which first give the impression that it is the amended order but which is then revealed with a numbered footnote to be the original order. The footnote reads, ''1 This part of the Order was deleted by further Order of 16th October 2019.'' - which is both true and untrue, as it suggests a perfected finality which could not have been achieved by the 15/16 October 2019 order alone.

27. Footnoting the original order gave the judges an out with regard to the third ordered amendment, in that a footnote could not be added there because the October 15th order was for the addition of a new paragraph to apply the correction. And the overturning of the judgment and order of 15 October 2019 was completed at paragraph 201, where the judges disingenuously imply negligence on my part by saying that ''it is puzzling that the agreement was presented to the Court in a manner that suggested that all the parties to the action had consented to it.'' and ''It is hard to see why (Mr. Molloy) did not articulate some objection to the Court when the agreement was presented to it.'' The DAR and transcript of 23 May 2019 had effectively been disappeared for the purposes of binding me to something which had always been abhorrent to me. 

28. The problem with all of this is that the 15 October 2019 order and judgment did not materially disappear. The DAR and transcript of 23 May 2019 happily still exist and it is difficult to imagine what alternative source might have persuaded the three judges of the Court of Appeal that ''the agreement was presented to the Court in a manner that suggested'' consent on my part. Even if the source genuinely believed this, it has been ruled that no claim of consent on my part was declared to the Court. My counsel knew full well that I would not have stayed silent if he tried to slip that untruth to the Court.

29. The very fact that there is an order marked as amended means that there must have been an order to amend it. And that order could not have been overturned unless there had been either a subsequent order to amend (or nullify) it or there had been a successful appeal against it. Neither happened, because while it is always possible to overturn an interpretation of evidence, overturning objective fact is not possible.

30. I did not have an understanding of the full significance of the 15 October 2019 order and judgment until very recently, but it is difficult to believe that all of the four solicitors, five barristers and five senior counsel who were involved in some way in the proceedings after 15 October 2019 were similarly unenlightened. The order governing the sole document of a settlement was a sham and nobody said a word. I sincerely doubt that there is a twelve year old in Ireland who, once educated on the meaning of amendment, could not find dangerous inconsistency in an amended High Court order being exactly the same as an order which the High Court itself had declared ''does not reflect what actually happened''.

31. As there is clearly no legitimate order governing the purported settlement, there can be no settlement. The plaintiff may argue that this is a Supreme Court issue, but but we hardly need the Supreme Court to tell us that courts are obliged to obey their own orders. These are extraordinary circumstances. Unless it can be believed that a Registrar would risk everything for an attack on judicial authority for no apparent motive, then what I have described here is a fraud upon the Court, by the Court.

32. None of it would have happened if the settlement was safe in the first place. Unsafe, it must now be set aside in its entirety, the amended 23 May 2019 order vacated, the 6 December judgment and attendant costs orders nullified, my Company's appeal against the 12 April 2018 judgment reactivated, my Company's security for costs returned to the Accountant's Office of the Court of Appeal, and Garda Dully's lawsuits against me, Paddy McCaul and Cieran Temple allowed to continue in the High Court. 

 

                                                                    DAVID DULLY

33. The position of the plaintiff is clear cut, regardless of which court order governs the 'Agreed Statement to the Court'. Like Paddy McCaul, he is legally obliged to honour his promise to participate in the committee as described in the 'Agreed Statement to the Court', in his case by choosing an unspecified number of nominees. He and Mr. McCaul have, to the best of my knowledge, made no attempt to obey this obligation. Neither man has ever contacted me for the purpose of my Company's supplying the ''one further nominee'' required by the 'Agreed Statement to the Court'. There is no excuse for this, as both men have been ruthless in trying to ensnare me and my Company in the settlement. 

34. Garda Dully's non-compliance with the terms of settlement has not extended to his returning the E50,000 belonging to my Company which was removed from the Accountant's Office of the Court of Appeal in September 2019 without my company's knowledge or consent. He can well afford to return the money to my Company. Though great secrecy has been maintained around the terms of the sale of the stadium property (through the sale of Athlone Town AFC CLG) to American investors, the most recent accounts of his company strongly indicate that the word on the street about the three owners getting half a million euro each was accurate. The accounts also indicate at least a strong possibility that around one third of the property, approximately three acres, will be separated from the rest of the property and moved into different ownership between 2028 and 2030. Messrs. O'Connor, Hayden and Dully founded the company Lissywollen Sports limited on 3 March 2025.

35. Whatever the reason for Garda Dully's non-compliance, it had been clear for a number of years that the committee was never going to be formed. And it has been clear since February 10th last that it cannot now be formed, because Garda Dully is no longer a member of Athlone Town AFC CLG, the company which holds the property. The purported settlement agreement is therefore void and the amended 23 May 2019 order must be set aside in its entirety.

Sworn by etc.