JUDGMENT delivered the 12th day of December, 2001 by FENNELLY J. I agree with the judgment of the Chief Justice. Since it so comprehensive, it may seem excessive to add this brief contribution. I do so only because, while initially persuaded by the cogent and eloquent argument of Mr Trainor, I have come to the conclusion that on the issue variously described as relating to the Coolamber lands or Navona Limited, the Appellant has so patently defied the order of the Court and, more particularly, has sworn at least one affidavit that is demonstrably so incomplete as to entail deliberate deception, that, for this reason alone, the appeal should be dismissed.
The facts are fully set out in the judgment of the Chief Justice. I deal only with the issue mentioned above.
It will be recalled that Smyth J stated in his judgment that Navona was mentioned for the first time in the affidavit of Ms Howard sworn on 10th July 2001. At the same time, it is clear from the same affidavit that the appellant was questioned during his evidence before the Tribunal about a company called Advance Proteins Limited, which was a vehicle for certain payments passing between Mr Larry Goodman or his companies and the appellant.
Standing alone, Ms Howard’s statements about Navona have the quality of hearsay. They are said to be based on research carried out by the Tribunal’s legal team. They allege essentially that the appellant “was involved with Mr. Goodman in this purchase,” meaning “the purchase by an Isle of Man company Navona Limited, of fifty five acres land at Coolamber, Lucan ...”
The response of the appellant in his affidavit of 17th July was that he had no recollection or knowledge of Navona Limited and that he had had no dealings with it. In a literal sense, that might be true. It has not been established that the appellant knew of any Isle of Man Company under that name. However, the appellant’s claimed ignorance must be placed in the context in which his averment was made, namely that Navona was alleged to have been used as a vehicle for the purchase of the Coolamber lands. In this latter respect, the appellant swore unequivocally, in a passage specially underlined by the Chief Justice that he “was not involved in the purchase or ownership, nor did [he] have any interest in the lands, either before or subsequent to their acquisition.” He admitted only that he was an adjoining owner to the lands who was aware of their development potential. He had recommended the lands to Mr Goodman and it “was at all times up to Mr Goodman to decide whether to purchase the lands or otherwise.”
Ms. Howard’s further replying affidavit of 18th July contains a comprehensive rebuttal of the appellant’s claimed lack of interest in the lands. Only after reading it, did the appellant commence to reveal the true extent of his interest in the Coolamber lands. The fact that she relied on third party documents or statements becomes irrelevant, in the light of later developments. This evidence can be summarised as follows. The lands at Coolamber were offered for sale by tender on 22nd July 1987. Mr Larry Goodman produced to the Tribunal his own handwritten memo of a proposal he said had been put to him by the appellant for the purchase of the lands and how this was to be financed and the appellant gave Mr Goodman a copy of the estate agents’ sales brochure. Mr Brian Britton, then an employee of the Goodman organisation prepared two handwritten memoranda dated 17th and 21st July 1987 respectively regarding this financing. The first was headed “Coolamber.” The second was headed “LL”, stated by all concerned to be the initials of the appellant, which appears at several points in the document. A third memorandum, also apparently written by Mr Britton, and dated 23rd July 1987 reads:
The details of the arrangement as it emerges from these documents are sketchy. The documents themselves and the evidence given to the Tribunal about them clearly suggest, nonetheless, that the appellant negotiated an agreement or arrangement with Mr Goodman for the purchase of the Coolamber lands. The financing mechanism envisaged appears to have been that the lands would be bought by a company wholly owned by Mr Goodman, which would enable the company to obtain a loan of £350,000 for their purchase and that the appellant would be entitled to share in any profit made on resale and after the bank borrowings were discharged. It is apparently that feature of the deal that has enabled the appellant to justify his denial of any beneficial interest in the lands.
Ms Howard’s affidavit of 18th July also refers to information obtained from Binchys, Solicitors. The lands, it seems, were purchased, pursuant to an agreement dated 30th July 1987, by Navona Limited. Binchys have produced a copy of a declaration of trust by Navona Limited in respect of the lands in favour of Southfield Limited, the company that was to take the loan of £350,000 and over which Mr Goodman was, according to the banking arrangements, to have and maintain 100% control. In fact, he has said that he was provided with no shares in the company. He has also said that the interest in the lands was later sold to an Isle of Man Company, Vico Property Limited without reference to Mr Goodman and without discharging the interest payments he had made on behalf of Southfield Limited.
Most tellingly of all, perhaps, Ms. Howard exhibited an incomplete copy of a memorandum recounting the history of the land transaction. This, according to Mr Goodman’s evidence to the Tribunal, was prepared by the appellant at Mr Goodman’s request after the latter had been seeking to recover the interests payments from him. It was faxed to Mr Goodman on 12th December 1994. It is unnecessary to discuss the detail of this document especially as much of it has been disputed by Mr Goodman. Ms Howard produced it, as she said, “.. for the purpose of establishing that the [appellant].. ..has in this memorandum claimed to have held various shareholdings in the lands in respect of which he denies involvement ...”The document appears to contain an account of a number of meetings with a number of persons, particularly Mr Jim Kennedy and Mr John Caldwell, solicitor of Binchys. If true the document shows that the appellant:
- agreed with others to bid for the Coolamber lands;
- agreed to secure 100% finance and later discussed the financing with Mr Britton;
- discussed the purchase of the lands by Southfield Ltd, described as and Isle of Man company;
- agreed shareholdings in, apparently, that company, of which he was to have 41.3%, later revised to 25%;
- had meetings to discuss “the technical aspects of the land;”
- discussed the formation of Vino Ltd and the sale of the land which “left a surplus in the region of £1.5 million.”
Prompted by the material disclosed in Ms. Howard’s affidavit, the appellant gave a very different version of the matter in his own affidavit of 20th July. He described his earlier version as being “relatively concise.” In fact, it will be recalled, he had sworn that he “was not involved in the purchase or ownership, nor did [he] have any interest in the lands, either before or subsequent to their acquisition.”
Since it is not my purpose to make any findings about the true nature of the transactions, which are matters for the Tribunal, it will suffice if I quote some paragraphs of the appellant’s affidavit of 20th July:
"8. As my own financial circumstances at the time were not good the question as to how to raise the money to bid for these lands was a real problem. Sometime during July of 1987 I had occasion to visit Mr Goodman at his office in Ardee where I discussed with him generally how the Advanced Proteins project was proceeding, and I took the opportunity of telling him about the lands at Coolamber and enquired whether he would be interested in having an involvement. As the discussion proceeded we contemplated Mr Goodman investing up to £350,000 towards both supporting Advanced Proteins Ltd. and the possible purchase of the Coolamber lands, which money would be borrowed from a bank to be arranged by Mr Britton, Financial Director of the Goodman Group. In addition it was envisaged that Mr Goodman would discharge the ongoing interest payments in return for getting a share in the ultimate profits in the projects. I believe I gave Mr Goodman a copy of the Coolamber sales brochures which I had with me at the time.
9. In due course a tender was submitted for the property through Binchy's which was successful and the property was acquired with money advanced by Mr Goodman. Mr Goodman duly advanced monies over a period most of which was paid into an account of Advanced Proteins Ltd which in turn was used to furnish the purchase monies which were provided back to Binchy's to close the transaction and to support Advanced Proteins Ltd. Mr Caldwell attended to the legal formalities which included arranging for a company to be acquired to hold the lands. While I note that it appears to be contended that the company which initially acquired the lands was in fact Navona Ltd I have to say that I was not aware of the name of that company until I saw it for the first time referred to in Ms Howard's affidavit of July 10th 2001.
10. So far as I can recall Mr Goodman initially provided the monies lent to Advanced Proteins Ltd, from one of his Goodman Group Companies but he later caused this money to be raised from Bank of Nova Scotia. My recollection is that he left the arranging of this to his financial director Mr Britton and ultimately a facility was procured from Bank of Nova Scotia. I did not have sight f the facility letter issued by that bank dated December 23rd 1987 at the time but I was aware that the terms of the facility included provision that the loan was to be secured by a mortgage over the lands and by Mr Goodman's assurance that he would retain full ownership of the corporate vehicle which held title to the lands while the bank debt remained outstanding.
11. It is the case that Mr Kennedy, Mr Caldwell and I had discussed the possibility of having a shareholding in the company that owned the lands but as Mr Goodman had arranged for the purchase monies to be provided by him in the first instance and later funded by Bank of Nova Scotia I knew that the question of a shareholding for us was out of the question for so long as the bank loan remained outstanding. I should also say that at or around about the time of the closing or possibly shortly thereafter I became aware of a company called Southfield which I understood was the vehicle which Mr Caldwell and Mr Britton had procured to take title to the lands."
In his affidavit of 20th July, the appellant no longer denies that he was involved in the purchase of the lands. His earlier statement was more than concise. It was untrue. In circumstances, where the appellant had already been found in contempt, had had a sentence of three months’ imprisonment imposed upon him and had served one week in prison as well as having been ordered to make further discovery, it is extraordinary that he should make a statement of non-involvement in a transaction which he knew to be of interest to the Tribunal when quite obviously he was, at the least, actively concerned. Given his stance that he had no involvement at all with the lands, he clearly could not address correctly and properly the question of what relevant documents were or had been in his possession.
I have concentrated on this one aspect of the contempt, because it is so egregious. I am satisfied that his failure to respect the order of the court in this one respect alone justified the imposition on him of the further period of imprisonment and the fine imposed by the learned trial judge.