Property developer Simon Kelly has undertaken to pay €20,000 to charity to avoid further High Court action against him for contempt of court over a "shameful" e-mail in which he accused a Dublin businessman of bringing a "bullshit" legal case and threatened he would cause "loss and pain" to the other man's business career.
Mr Justice Peter Kelly said yesterday he would not refer papers concerning Simon Kelly to the DPP on condition Mr Kelly made a contribution of €20,000 to a nominated charity.
He was told Mr Kelly will, within days, pay €20,000 to St Vincent De Paul. In light of that contribution and Mr Kelly's "contrition", the judge said no further action would be taken.
Mr Kelly, who has a range of business ventures, including the Fresh chain of convenience stores, had sent the e-mail to Hugh McGivern, of Seafield Road, Clontarf, Dublin, an insurance broker and owner of the firm McGivern Flynn, after Mr McGivern initiated legal proceedings in June 2007 against developer Paddy Kelly - father of Simon Kelly - of Lower Baggot Street, Dublin.
Mr McGivern and Paddy Kelly had a number of property and business interests in common, the court heard. Mr McGivern brought his case against Paddy Kelly over a share purchase agreement of November 6th, 2006 under which Mr McGivern agreed to sell to Paddy Kelly shares owned by Mr McGivern in four companies, including Fabline Ltd and Latest Venture (NI) Ltd, operating the Mango franchise for ladies' clothing.
Paddy Kelly delivered his defence to the case on July 5th, 2007 and, in the early hours of that day, his son Simon sent an e-mail to Mr McGivern. Most of the dealings relating to the share purchase agreement had been conducted between Mr McGivern and Simon Kelly, the judge noted.
In the e-mail, Simon Kelly referred to "preparing the defence against your bullshit claim for the 1m" and accused Mr McGivern of breaking an agreement on flexibility of a schedule of repayments.
He wrote: "If you continue this action regarding Mango, I am going to be forced to seek to cause you loss and pain in other business arrangements. There are plenty of places that I can hurt you and you can hurt me."
The e-mail also stated: "In the very near term, this dispute is going to move beyond the bounds of a commercial claim and become personal. If this happens, I do not care what cost I will bear to make you regret taking this action. You may win in court but it will be to your eternal regret."
The original proceedings came before the Commercial Court earlier this month and settled on the third day, on terms including a payment of €1.35 million to Mr McGivern.
In evidence, Mr McGivern had said the threat of causing him loss and pain in other business arrangements had been carried into effect but, because the case settled before evidence was given by the defence, the judge said he could not adjudicate on that claim.
The judge said every citizen has a constitutional right of access to the courts and it was "of the highest importance" that a citizen who exercises the right to litigate should be able to do so free of threats or obstructions. Conduct and threats calculated to inhibit a litigant from availing of their constitutional right to litigate was a contempt of court.
There was little doubt the e-mail was "minatory" (threatening) in tone, and it was hard to avoid concluding it was aimed at dissuading Mr McGivern from continuing his action, the judge said.
He noted Simon Kelly gave evidence that he regretted the writing, sending and content of the e-mail. He said it was written late at night and out of frustration at the thought of the litigation. He said he withdrew its content and also apologised unreservedly to Mr McGivern and the court.
The judge said he accepted Mr Kelly had seen the error of his ways.
