• Comment
• Print
• E-mail

Case of Square Pegs...

As Liam Carroll's companies go into examinership, it leaves his long-time rival Noel Smyth still pursuing a claim for €140m in damages.

Neil Callanan reports

Noel Smyth - Solicitor-turned-developer Noel Smyth is famous for representing Ben Dunne at the Moriarty tribunal. He founded legal firm Noel Smyth & Partners but is no longer involved, being a full-time developer. He first came to prominence as chairman of Dunloe Ewart, but was later bought out of the company following a bitter takeover battle with Liam Carroll whom Dunloe had marginally outbid for a site on Sir John Rogerson's Quay on Dublin's south docks. He has extensive property interests in Britain and also owns sites in south Dublin. He bought Quinlan Private's shops in The Square for €340m in 2007.

Tom McFeely - The IRA hunger striker turned developer lives on Dublin's Ailesbury Road in the former German embassy. In his only ever interview, he told this newspaper last week that "despite my success under capitalism, I'd have no problem trying socialism in Ireland. But, in the meantime, I have to live. And I might as well live as good as the next!" He drives a Bentley that cost almost €280,000 and has a sports car. McFeely was born in Dungiven in Co Derry and is 60. He was sentenced to 26 years in prison after being charged in 1976 with attempted murder of police, possession of weapons and a post-office robbery.

Liam Carroll - Friday's developments will represent a low point for developer Liam Carroll. He started out developing apartments before moving into commercial development. He has suffered from the economic downturn, losing more than €250m on the stock market and his companies have had a number of High Court actions lodged against them since the start of the year. The Dundalk native developed the Tallaght Cross retail scheme across the road from The Square. His tenants include Marks & Spencer, which took a legal action in relation to the scheme earlier this year, and he was forced to close the two hotels there before re-opening them for letting as bedsits. His assets include more than 400 acres in Cherrywood and the Google headquarters in Dublin city.

Larry O'Mahony - The Shrewsbury Road resident is well-liked by those who know him and unlike McFeely is said to have come from a relatively well-off background. He plays polo in the Phoenix Park and is involved in the All-Ireland Polo Club there. He was present in court last week wearing a chalk-stripe suit and sitting to the side, taking occasional notes on a box of files from William Fry solicitors, which is representing Liam Carroll in the court case.

• 1
• 2
• 3
• 4

When Noel Smyth was eventually ousted from Dunloe Ewart after a hostile takeover by Liam Carroll, he complained bitterly that the developer had never called him to discuss the company. Instead, Carroll worked quietly, engineering the acquisition of the business. Smyth later sued Carroll for loss of office, winning his case, but that was small change compared to the €140m in damages he is now seeking from Carroll, former IRA hunger striker Tom McFeely, Shrewsbury Road-based developer Larry O'Mahony and companies related to them.

Two years after proceedings were issued, the case finally opened before Mr Justice Brian McGovern in the big business division of the High Court last week. Even before hearings commenced, it was already one of the longest cases running in the Commercial Court to get to trial and the legal bills are expected to be huge – last Thursday there were at least eight solicitors and eight counsel in court.

The case centres on Smyth's claim that his Redfern vehicle lost out on major profits, worth up to €413m, due to the conduct of rival developers McFeely, O'Mahony and Liam Carroll. Smyth sat in the rear left of the court last week, legs crossed, glasses in place as he followed his counsel Paul Sreenan's opening statement. O'Mahony, in a chalk- striped suit, sat on the other side of the court.

Smyth has been involved in The Square since the early 1990s, when he negotiated the finance and put together the development team for the shopping centre on behalf of Phil Monahan's Monarch Properties. Smyth later acquired units in the scheme, which were transferred eventually to Dunloe, the company eventually taken over Carroll.

Following a High Court judgment in 2002 about car park licences in The Square (see panel), the owners of the existing shopping centre invited Smyth to carry out an extension of the centre. They were doing so because the centre was lagging behind the performance of Blanchardstown, Liffey Valley and Dundrum and it could not provide retailers with the larger stores they wanted.

"His attitude, he will say, from the very beginning was to try and encourage cooperation in the wider interest and ensure that everybody got a fair return, avoid a repeat of the litigation that end ended up with the Lowe licence [see panel above] going into the High Court and try to resolve matters by agreement with fairness to all participants," Sreenan told the Commercial Court last week.

The deal was that Smyth's vehicles would get two-thirds of the profits from the first phase of the expansion and 60% of the second phase, with the remainder of the profits going to the owners of the existing centre, which included McFeely and O'Mahony.

But O'Mahony and McFeely also owned Lowe Taverns and that gave them a stake in the land which the new centre would be developed on. They were advised by solicitors Ivor Fitzpatrick & Co, whose advice wasn't always taken, according to Sreenan, who added "they were big boys and able to decide on their own deals and so they did".

There followed five months of negotiations between the sides which resulted in the so-called "Redfern agreement", giving McFeely and O'Mahony a stake in the profits of the expansion and an alleged agreement that they would make an offer to buy the existing centre from the disparate owners.

Timing was key however, as the expansion of the centre qualified for lucrative capital allowances but a substantial amount of development needed to be completed before those allowances could be claimed.

Sreenan claimed that Smyth "was allowed go on for well over a year breaking his back" to get the development going but that McFeely and O'Mahony "had double-crossed him". McFeely and O'Mahony sold a majority stake in Aifca to Carroll, who was at the time developing the Tallaght Cross scheme across the road and who was in competition for the same tenants as Smyth was trying to secure.

McFeely and O'Mahony tried to buy Smyth out of the expansion of The Square and later assigned the shares in Aifca to Carroll, which Smyth says was not allowed under the Redfern agreement. During this period, the duo were continuing to try to buy out Smyth and Sreenan claimed that it "seemed" they were fronting an attempt by Carroll to buy out Smyth's interest in the expansion of the centre.

Sreenan also alleged that Carroll "appears to have obtained" from O'Mahony a copy of Smyth's agreement with the owners of The Square for the future development of the centre.

"We say [Carroll] crossed the Rubicon," Sreenan later claimed. "He went that step too far and procured the breach of another man's contract. He took what was contractually another man's and he took it for himself. He did it in secret and he kept it secret for the best part of a year and that, we say, is the inducement of breach of contract. It is a step which ultimately played itself out because, in practice, after that, the joint venture agreement could not be performed." The case is expected to continue for another seven weeks.