The Supreme Court has struck out an appeal taken by the company that formerly owned Tory Island’s hotel against a High Court judgment.
The court ordered that Co Down film-maker Neville Presho be immediately paid €46,000 in damages, which had already been lodged with the Court as a condition of permitting the appeal.
The judges have also ordered the company’s former owner, Tory islander Patrick Doohan, to lodge an affidavit explaining how a judgment mortgage in favour of Presho was cancelled from a folio in land registry, without Presho or his legal team being told: why the Court was not told the company was dissolved: and why Presho’s legal team, and not Doohan, brought this to the Court’s attention.
The High Court awarded the damages in 2009, when it found Ostán Thoraigh Teoranta and Doohan were responsible for demolishing Presho’s house on Tory Island because it blocked the hotel’s view of the sea.
First, the house was damaged by an unexplained fire. Then the walls were flattened by machinery.The Court heard dramatic evidence from Presho that he returned from New Zealand in 1993 and, as he approached Tory by ferry, saw that his house had disappeared to be replaced by a hotel car park. Two psychiatrists gave evidence this precipitated his decline into severe mental illness. At the time, the case attracted international publicity.
On Tuesday, the Supreme Court agreed to an application from Presho’s barrister, Cormac Ó Dúlacháin, instructed by solicitor Michael Gillespie, that the appeal by Ostán Thoraigh be struck out.
“The Company does not exit and is not in a position to proceed with the appeal,” Judge Frank Clarke said, speaking on behalf of the three judges.
Ó Dúlacháin made the application at the start of the hearing. He told the Court the company Ostán Thoraigh had been dissolved on April 6th.
Its principal asset, the hotel on Tory Island, had been sold in December last. As a result of the High Court award, his client had registered a mortgage against the hotel.
However, on the current folio in Land Registry “our judgement appears as cancelled.” He told the Court his client had received no notification the company was dissolved.
Séamas Ó Tuathail, barrister for Doohan, said this information came as a surprise to him. “Mr Doohan wants to go ahead to clear his name,” he said. He initially said the company still owned the property, but accepted it did not when Ó Dúlacháin interjected and offered to show him the documentation. Ó Tuathail also said the €46,000 lodged in court, as a condition of the appeal proceeding, belonged to Doohan.
Ó Dúlacháin said he accepted Doohan had a right to try to clear his name, but appealed for the damages to be paid to Presho.
The three judges adjourned the hearing for 30 minutes. On their return, Judge Clarke spoke on their behalf. He instructed that the €46,000 be paid to Presho, with his legal costs. He also expressed concern at the way the company had been dissolved.
“The Court is concerned at the information brought to its attention today regarding the judgment mortgage obtained by Mr Presho,” the Judge said.
“There were three matters. The company ceased to own the hotel. A charge in favour of Ulster Bank on the folio was cancelled. On the same date “a judgment mortgage in favour of Mr Presho was cancelled. The Court has been informed by counsel for Mr Presho that no notice was given to his side.”
The Judge ordered that, in order to proceed with his appeal, Doohan would have to file an affidavit explaining three points. Firstly “why the Court was not notified before today that the company pursuing an appeal had been struck off, given Mr Doohan was the principal of that company.” Secondly “why it took a plaintiff to bring this matter to the attention of the Court.” Thirdly “the circumstances in which the judgment mortgage in favour of Mr Presho came to be cancelled.”
Mr. Doohan was instructed to include any relevant information in the affidavit. When the affidavit is lodged, the Court will examine it “and will have to consider where the interests of justice lie.”
The affidavit is to be filed by December 6th. The Court intends to have a hearing on Doohan’s appeal at an unspecified date in January.
Neither Presho nor Doohan attended the Court. Presho has been a patient in a Belfast hospital since late July.
On company documents, Doohan gave an address at Orchard Drive, Magherenan, Letterkenny. However, he is believed to be now working in London. Ó Tuathail told the Court, at the end of the hearing, that Doohan was abroad and he did not have contact with him.