O'Brien and Anor v Gill

[2026] IEHC 232 CIRCUIT COURT RECORD NUMBER 2021/00207 THE HIGH COURT BETWEEN THOMAS O’BRIEN AND THOMAS O’BRIEN SNR AS NOMINEE OF THE HARBOUR HOUSE SPORTS CLUB PLAINTIFFS AND JOHN GILL DEFENDANT JUDGMENT of Mr. Justice Michael Twomey delivered on the 21st day of April 2026 INTRODUCTION 1. This is an appeal of a judgment of Baxter J in the Circuit Court delivered on 15 December 2025. In this appeal, counsel for the defendant claims, in reliance on a Supreme Court judgment in Northern Bank v Charlton [1979] IR 149, that an appeal to the High Court, of a Circuit Court decision, should be heard on the basis of the evidence that was heard in the Circuit Court, and not on the basis of a de novo hearing of all the evidence in the High Court. 2. The case involves a dispute over the sum of €75,000 which is alleged to be owed by the defendant (“Mr. Gill”) to the plaintiffs (“Mr. O’Brien Jnr” and “Mr. O’Brien Snr”). The plaintiffs are suing as nominees of the Harbour House Sports Club, a shooting and archery club (the “Club”) based in Athy, Co. Kildare. The dispute concerns work which was done on lands used by the Club and owned by Mr. O’Brien Snr. 3. The dispute arises from the terms of contract (the “Contract”) between Mr. O’Brien Snr (as the owner of the relevant lands), Mr. O’Brien Jnr (as the representative of the Club) and Mr. Gill. The Contract is dated 17 February 2020 and it provides for the construction of protective earthen berms on the lands in question, in order to contain the Club’s various shooting ranges within the premises of the Club (so as to comply with planning conditions set down by Kildare County Council). 4. The plaintiffs allege that the obligations under the Contract fell to be performed by Mr. Gill, as the Contract was with him. On the other hand, Mr. Gill alleges that these obligations, and in particular any payment obligations, were to be performed by Gill Recovery Services Limited (the “Company”), a company of which Mr. Gill is a director. 5. It might seem curious that the party doing the works on the land used by the Club had to pay money to the Club. However, this appears to be because the work consisted of putting a considerable amount of waste material on the lands used by the Club (in order to construct the earthen berms). In this regard, it seems that a party to such a contract would be willing to pay for the right to put waste material on lands, since the disposal of waste material can be costly. 6. For this reason, the Contract provides for a payment to the Club of €100,000 (whether by Mr. Gill or by the Company is in dispute). It is however accepted by the plaintiffs that €30,000 of this sum has already been paid, and so they say €70,000 is now owed, in addition to damages of €5,000, in respect of remedial work, which they undertook (and for which receipts were provided to the Court). It is to be noted that these receipts come to over €7,000, but that the claim has been limited to €5,000, as the jurisdiction of the Circuit Court in this matter is €75,000. Mr. Gill’s defence to the claim for €75,000 7. The sole defence put forward to this claim at the hearing before this Court was that the Contract, although signed by Mr. Gill, was not a contract with him, but rather a contract with the Company. Thus, Mr. Gill says that these proceedings, insofar as they claim that money is due under the Contract to the Club, relate to a contract with the Company, and not with him. On this basis, Mr. Gill claims that the proceedings should have been taken against the Company and not against him, and so these proceedings should be dismissed. PRELIMINARY ISSUE: THE NATURE OF A CIRCUIT COURT APPEAL 8. As a preliminary point in this case, counsel for Mr. Gill claimed that Mr. Gill was entitled to an appeal based on the evidence which had been adduced in the Circuit Court, and not by way of a de novo hearing before this Court (i.e. one where the witnesses would give their evidence again to this Court). Is the appeal based on evidence in Circuit Court rather than a de novo hearing? 9. Counsel for Mr. Gill accepted that this was a novel argument and indeed that the practice has been for many years that an appeal from the Circuit Court is by way of a de novo hearing. However, he claimed that Mr. Gill was entitled to an appeal, on the basis of, what might be called, a ‘re-argument’ of the case based on the evidence that was adduced before the Circuit Court, rather than a full re-hearing. 10. The issue arose in this case, because, based on Mr. Gill’s alleged entitlement to this type of an appeal, counsel claimed that that he needed a copy of the DAR from the Circuit Court hearing, before proceeding with the appeal in the High Court. In order to obtain a transcript of the DAR, he sought an adjournment, from this Court, of his appeal. 11. Counsel for Mr. Gill claimed that the entitlement to an appeal, by way of ‘re-argument’ of the evidence adduced in the Circuit Court, arose from the Supreme Court’s interpretation of the term ‘re-hearing’. Crucially, in Mr. Gill’s view, this same term is contained in s.38 of the Courts of Justice Act, 1936, which governs appeals from Circuit Court to the High Court. Insofar as relevant, this section provides: ‘(1) An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this Part of this Act) of the Circuit Court in a civil action or matter— (a) where such judgment or order is given or made by a judge of the Circuit Court for the time being assigned to and sitting in the Dublin Circuit, to the High Court sitting in Dublin, and (b) in every other case, to the High Court on Circuit sitting in the appeal town for the county or county borough in which the action or matter resulting in such judgment or order was heard and determined. (2) Every appeal under the section shall be heard and determined by one judge of the High Court and shall be so heard by way of a rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made. (Emphasis added) It is relevant to note that s.37 of Courts of Justice Act, 1936 provides that: ‘(1) An appeal shall lie to the High Court sitting in Dublin from every judgment given or order made (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom) by the Circuit Court in any civil action or matter at the hearing or for the determination of which no oral evidence was given. (2) Every appeal under this section to the High Court shall be heard and determined by one judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made, but no evidence which was not given and received in the Circuit Court shall be given or received on the hearing of such appeal without the special leave of the judge hearing such appeal.’ (Emphasis added) There is no dispute between the parties that this is a case in which oral evidence was adduced in the Circuit Court, and so it is clear that this is an appeal under s.38, and not under s.37. 12. Counsel for Mr. Gill claimed that the term ‘re-hearing’ in s.38 entitles him to re-argue the case (based on the oral, and other, evidence adduced in the Circuit Court) and that his appeal should not therefore be by way of a de novo hearing in this Court. For this interpretation of the term ‘re-hearing’, he relied in particular on the case of Northern Bank v Charlton [1979] IR 149 in which Henchy J, at pg. 188 of the Irish Reports, states: ‘0. 58, r. 1 of the Rules of the Superior Courts specifies that all appeals to this Court shall be "by way of re-hearing". However, the expression "re-hearing" in that context is necessarily a term of art in its application to cases such as this. As follows from the other requirements of 0.58, the Court will normally be precluded from hearing or seeing the witnesses whose oral testimony was the core of the hearing in the High Court. So the appeal will be "by way of re-hearing" only to the extent that that will be possible by examining documentary material, particularly a written version or report of the evidence - save for those exceptional cases when fresh or represented evidence is received, usually in the form of oral testimony or by way of visual consideration of a person or object (e.g. the cosmetic consequences of facial injury by scarring).’ (Emphasis added) 13. Mr. Gill relies on the fact that Henchy J refers to the ‘written version’ of the evidence being used in an appeal, which is described as a ‘re-hearing’. On this basis, Mr. Gill claims that the term ‘re-hearing,’ when used in s.38, does not in fact mean a de-novo hearing, but rather it means a re-arguing by counsel, in the High Court, of the case which had been heard in the Circuit Court, based on a ‘written version’ of the evidence, which in this case, would be a transcript of the DAR. 14. This Court rejects this argument for the following reasons: (i) The interpretation of ‘re-hearing’ in the Northern Bank case was not concerned with the use of the term in s.38 of the Courts of Justice Act, 1936, but rather its use in Order 58 of the Rules of the Superior Courts, and so this interpretation by Henchy J has no direct application to this case. (ii) Crucially, Henchy J in the Northern Bank case specifically referred to the term ‘re- hearing’ as a ‘term of art’ in the context of an appeal to the Supreme Court, and it is clear therefore that its meaning in that context (i.e. of an appeal to the Supreme Court) is not necessarily the same in another context. (iii) In addition, the meaning which was given to the term ‘re-hearing’ in that case was expressly based on the fact that, in Supreme Court appeals, a court is ‘normally precluded from hearing or seeing the witnesses’. Thus, Henchy J makes explicitly clear that in interpreting the term ‘re-hearing’, he was interpreting it in the context of such a hearing and so as he states himself ‘only to the extent that that will be possible by examining documentary material’. In this Court’s view, he was thereby emphasising that he was in, in effect, adopting a strained interpretation of the term ‘re-hearing’ which was necessitated by the peculiar circumstance of an appeal to the Supreme Court. Crucially, in appeals from the Circuit Court, the High Court is not precluded from hearing from witnesses and so this strained interpretation in that context has no application to this case. (iv) It is also relevant to note that in s.38 appeals (which Mr. Gill’s appeal is), there is no equivalent of the principle (which applies in s.37 appeals) that no evidence given in the Circuit Court shall be given in appeal in the High Court, without leave of the judge. The clear implication therefore is that in s.38 appeals, new evidence can be given in the appeal in the High Court, without the leave of the court. This clearly supports the view that in a s.38 appeal there is no restriction on the giving of new evidence in the appeal, which clearly supports the view that the appeal is by way of a new hearing. (v) In any event, in LD v ND [2020] IEHC 267, at para. 11, Jordan J held that: ‘[I]n appeals between the Circuit Court and the High Court, where oral evidence is given in the Circuit Court, the appeal hearing is by way of a rehearing of both sides and their witnesses’. This statement of the law clearly contradicts Mr. Gill’s claim that the appeal is not by way of a de novo hearing. Based on the principle of judicial comity, articulated in Hughes v Worldport Communications Inc. [2005] IEHC 189 at pgs. 7-8, this Court is bound by that statement of the law. In particular, the foregoing interpretation which counsel for Mr. Gill seeks to put on the judgment in the Northern Bank case is not one with which this Court agrees, and so there is no error of law in the judgment in LD v ND, which would permit this Court to depart from it. 15. For all these reasons, this Court rejects the claim that Mr. Gill is entitled to an appeal based on the evidence heard in the Circuit Court. Instead, this appeal is based on a complete rehearing of all the witnesses. For this reason, there was no basis for this appeal being adjourned to allow Mr. Gill to take up a copy of the DAR and his application was rejected. ANALYSIS 16. Having dealt with this preliminary issue, the sole issue at the hearing before this Court was whether the Contract is one with the Company or with Mr. Gill personally. Is the Contract with the Company or with Mr. Gill? 17. At the appeal hearing, Mr. Gill gave evidence, as did Mr. O’Brien Jnr. There was a clear conflict of evidence, since Mr. Gill stated that he had told Mr. O’Brien Jnr, when he was signing the Contract, that the Contract was with the Company. In contrast, Mr. O’Brien Jnr’s evidence was that he was never told that there was any involvement of the Company in the Contract. Indeed, Mr. O’Brien Jnr stated that even when the Club was pursuing the payments due under the Contract from Mr. Gill, he was not told that the Contract was with the Company. In fact, he gave uncontroverted evidence that the first he heard of the involvement of the Company in this case was on the day of the Circuit Court hearing, when this issue was raised, for the first time, as part of Mr. Gill’s defence to the proceedings. 18. In cases like this, where this is a difference in memories between witnesses, and so a conflict in the oral evidence, it is helpful to have regard to the documentary evidence (regarding what is stated and what is not stated). Thus, regard will be had next to the written terms of the Contract and other documents which came into existence after the signing of the Contract, to assist this Court in resolving the dispute. The evidence which establishes who was party to the Contract 19. In this case, the following is the documentary evidence (and, where relevant, the undisputed oral evidence) which assists this Court in reaching its conclusion. 20. The Contract by its express terms is stated to be between three parties, who are described as Party A, Party B and Party C. The parties clause of the Contract goes on to state that Party A is Mr. O’Brien Snr and he is referred to as the owner (of the relevant lands), while Party B is stated to Mr. O’Brien Jnr, who is said to represent the Club. Then Party C is described as follows: ‘Party C, Mr. John Gill of Gill Recovery Services a registered waste disposal contractor, Waste Permit Number: NWCPO-01-0063601 herein referred to as “the Contractor” or any other sub-contractors whom Mr. Gill may engage to conduct woks (sic) on his behalf.’ 21. This appears to be the strongest point in Mr. Gill’s favour, since the Company’s name is Gill Recovery Services Limited. Thus, although Mr. Gill is named as the party, he is stated in this paragraph to be ‘of Gill Recovery Services’ and so the name of the Company (without the term ‘Limited’) is used in this clause. 22. However, for several reasons, this Court does not believe that this is sufficient evidence to support a finding that the Contract is with the Company, rather than Mr. Gill. 23. Firstly, even within the terms of this parties clause, it is expressly stated that Mr. Gill, who is defined as the Contractor, may engage other subcontractors to work on ‘his’ behalf. If the Contract was with the Company, then logically this should be a reference to work being done on ‘its’ behalf and not ‘his’ behalf. 24. Secondly and crucially the use of the term ‘Gill Recovery Services’ in this parties clause has to be seen in context and in particular in the context of how Mr. Gill viewed this term. This is because at para. 4 of the Civil Bill, it is pleaded by the plaintiffs that: ‘The Defendant [Mr. Gill] resides at Killina, Carbury, Co. Kildare and operates a registered waste disposal business trading as Gill Recovery Services’. (Emphasis added) Significantly however, in response to this plea, that Mr. Gill was trading as Gill Recovery Services, Mr. Gill pleads, at para. 1 of his Defence, that ‘he does not require proof of the matters pleaded’ at para. 4. 25. Thus, Mr. Gill is clearly accepting that he, and so not the Company, operates a registered waste disposal business trading as Gill Recovery Services. This plea by Mr. Gill flies completely in the face of his claim now, that because the term ‘Gill Recovery Services’ was inserted in the parties clause, this means that it was the Company that was the party to the Contract. 26. Mr. Gill cannot have it both ways, he cannot plead that he personally was trading as Gill Recovery Services, but when it suits him, to say that Gill Recovery Services is not his trading name, but ‘it’ is the Company. For this reason, in this Court’s view, the reference to ‘Mr. Gill of Gill Recovery Services’ is a clear acceptance by Mr. Gill, that for the purposes of these proceedings, and so for the purposes of interpreting the Contract, he ‘is’ Gill Recovery Services (and so this is not a reference to the Company). 27. Thirdly, when it comes to the execution clause of the Contract, it is signed by Mr. O’Brien Snr (as the owner of the lands) and Mr. O’Brien Jnr (on behalf of the Club). However, Mr. Gill, who is defined as the ‘Contractor’ in the Contract, signs as the Contractor (and so as himself). Thus, it is to be noted that he does not sign as a director of the Company, which, if he had, would have supported the claim that the Contract was with the Company. 28. Fourthly, Mr. Gill gave evidence that when he was sued personally, he told his solicitors that the Contract was with his Company and not with him. However, despite this claim, in all the period between 24 May 2021, when the proceedings issued, and 16 July 2025, when the case was heard in the Circuit Court, his solicitors did nothing to claim that Mr. Gill had been sued in error. If the Contract was actually with the Company, as claimed by Mr. Gill, and he told his solicitors of this fact, as claimed by him, one would have expected this issue to have been raised by Mr. Gill’s solicitors with the plaintiffs’ solicitors. Not only did this not occur, but the opposite representation was made by Mr. Gill, through his solicitors. This is because they stated that Mr. Gill, rather than the Company, was a party to the Contract. This is clear from the letter from Mr. Gill’s solicitors dated 23 August 2021 to the plaintiffs’ solicitors, which had as its subject matter the proceedings against ‘John Gill’. In that letter, Mr. Gill’s solicitors stated that: ‘We refer to the proceedings that appear to have been issued as a consequence of an alleged breach of an agreement entered into by our respective clients on 17 February 2020.’ (Emphasis added) Since this letter is clearly sent on behalf of Mr. Gill, and not on behalf of the Company, the reference to ‘our client’ is to Mr. Gill, and so this amounts to a clear acknowledgement by Mr. Gill, through his solicitors, that the Contract is with him, and so not with the Company. 29. Fifthly, in his replies to the Notice for Particulars (in the which the plaintiffs sought details of the breach of contract alleged by Mr. Gill), Mr. Gill replied as follows: ‘The Defendant [Mr. Gill] states that pursuing the recovery of the sum due is in breach of the contract entered into by the Plaintiffs and the Defendant. The Defendant will say that he, his agents and/or servants conducted substantial works over and above the terms of the original agreement and the costs of the said works were offset against the sum alleged due by the Defendants to the Plaintiffs.’ (Emphasis added) Once again, in this reply, Mr. Gill provides express confirmation that the Contract was with him, since he, and not the Company, was the defendant. Yet, despite all of this, in this Court he seeks to say that the Contract was with the Company. CONCLUSION 30. For all these reasons, this Court finds that there can be little doubt that the Contract in this case was one made with Mr. Gill and not with the Company. Additionally, since there is no ambiguity in the Contract, there is no question of it being interpreted in favour of Mr. Gill, as claimed by his counsel, pursuant to the contra proferentum rule (which states that if a contract is ambiguous, it should be interpreted against the party that drafted it). 31. This Court therefore has little hesitation in affirming the decision of Baxter J in which she held for the plaintiffs in the sum of €75,000. This Court will also make an order for costs in favour of the plaintiffs, since there is no reason for the usual rule not to apply, i.e. that the losing party pays the legal costs.