The Watershed Trial
1. The Tale of the Dog It all started when Dessie Hynes bought a pub in Merrion Row from Paddy and Maureen O'Donoghue in October 1977.The O'Donoghues had lived over the pub and there was a delay before they could move to their new house in Glenageary. Dessie Hynes invited them to stay on in the rooms above the pub as long as was necessary.
Mrs O'Donoghue had a dog. We don't know what kind dog it was. The judge spent some time trying to establish this. It was revealed that the dog was small — not, it was established, a Pekinese or a Chihuahua but probably a terrier. "A fox terrier, perhaps?", suggested the judge. Paddy O'Donoghue couldn't recall. Whatever it was, the dog became the source of some strain between Hynes and the O'Donoghues. Mrs O'Donoghue, it was said, complained when a bartender refused to walk the dog. At the top of the lane beside O'Donoghue's pub there is a shed. Dessie Hynes asked Paddy O'Donoghue to sell him the leasehold on the shed. Because of the strained relations Paddy O'Donoghue refused. Over the following few months Hynes made several attempts to buy the shed, to no avail. Paddy O'Donoghue first said that he wanted to keep the shed as a parking place when he drove into town. Then, when he decided he no longer wanted it, he still refused to sell to Hynes. Business had improved at O'Donoghue's pub and Hynes wanted the shed to store empty barrels, which were a nuisance in the laneway. Stalemate. 2. Enter Alexis Three doors down from Dessie Hynes's pub there is a firm of auctioneers and estate agents of which one partner is Alexis FitzGerald. (The office used to house FitzGerald and Partners, it now houses Sherry and FitzGerald.) Alexis FitzGerald is, when not auctioneering and agenting, a politician. He was twice elected Alderman in local elections but has a poor record in Dail politics. Rejected by the electorate in 1973, 1977 and 1981 - he was finally elected to the Dail in February 1982 on the surplus of Garret FitzGerald. Nine months later, not having made a single speech in the Dail, he lost his seat. When Paddy O'Donoghue decided to sell the shed he decided to ask Alexis if he was interested. The shed backed onto the Hume Street offices of Alexis's firm — he might find it handy. In February 1978 Paddy O'Donoghue's solicitor, Ken Millington, wrote to Alexis and asked if he was interested in buying the shed. Alexis didn't reply to the letter. 3. The Tale of the Salmon Sometime in June of 1978 - between 15 June and 3 July, according to Alexis - Paddy O'Donoghue invited Alexis to his house to discuss the shed. Alexis arrived and was surprised to find that dinner was prepared. "I can describe the menu if you wish", Alexis told the court. There was salmon, he said. Also at the dinner were Mrs O'Donoghue and Ben McDonald, who was connected to both the FitzGerald and O'Donoghue families and through whom, said Alexis, Paddy O'Donoghue approached Alexis about the shed. Dessie Hynes was discussed at the dinner. So was Alexis' ambition to be Lord Mayor of Dublin. But when it came to discussing the shed Alexis and O'Donoghue went off to a room on their own. Both testified that they there came an agreement that Alexis would purchase the shed for £51 Alexis testified that he told O'Donoghue to think a getting an independent valuer to assess that price. There was no hurry, Alexis says. It was summer, he didn't need the shed urgently, he wanted to be fair to O'Donoghue and, besides, his firm had liquidity problems. 4. "I'll Do That for You, Dessie" No one knows what date it was, but sometime in 1978 Dessie Hynes met Alexis FitzGerald in Merrion Row, outside his pub. He told Alexis he wanted to buy the shed. He reminded him that a woman who worked for the auctioneering firm (Alicia O'Donoghue, no relation) was a friend of the O'Donoghues and might be able to persuade them to sell. Hynes asked FitzGerald to act for him buying the shed. Alexis said, according to evidence from Hynes and from Oliver Barden, another publican who was with Hynes on the occasion, "I'll do that for you, Dessie' or "I'll look after that for you, Dessie." FitzGerald denied in court that he accepted Hynes' instruction. However, he did not tell Hynes of his interest in the shed. Neither, curiously, did he tell him that Alicia O'Donoghue had died the previous November. This meeting occurred in August, Hynes believed. He was vague about the date but recalled that the sun was shining, thereby deducing that it was summertime. He thought it might have been earlier in the year, as did Oliver Barden, it neither was sure enough to swear to it. 5 "We Have No Particular Need for It at the Moment" Also in August, two letters were sent. The first was from O'Donoghue's solicitor, Ken Millington, to Alexis. It asked why Alexis hadn't replied to the offer of the shed back in February and was he interested in making an offer for it. The second letter, from Alexis to Millington, said that he had recently talked to O'Donoghue, that his firm was interested in the shed but "we have no particular need for at the moment and have explained this to Mr O'Donoghue". The following month, September, Finbarr Cahill, Dessie Hynes's solicitor, wrote to Ken Millington seeking to purchase the shed. A month later, in October, Ken Millington made a note of a phone conversation with O'Donoghue in which the latter said that Alexis "had now made an offer of £500 and Mr O'Donoghue had decided to accept". The purchase of the shed was completed in December. The landlords of the shed, from whom O'Donoghue had the lease, scattered widely, had to be contacted, which accounted for the delay. 6. Complaints Were or Were Not Made Hynes recalls a meeting some five weeks after the August meeting in which he asked Alexis to buy the shed, again outside the pub, where he asked Alexis, "Did you do that for me?", and where Alexis replied that he had bought the shed for himself. At which point, according to Hynes, "I used some very public house language". However, there is a conflict of evidence about what happened between August 1978 and about May 1981. Hynes says he complained to anyone who would listen. To Alexis himself, to his partner Mark FitzGerald (son of Garret), to John de Vere White, another partner, that he threw the latter out of his pub, that the lunches which his pub regularly sent down to the FitzGerald firm were cancelled, etc etc etc. FitzGerald and his partners deny this. They say they stopped getting food from the pub because, perhaps, they preferred to get salad from the Unicorn Minor. Independent witnesses Tony Morrissey, another auctioneer, and Finbarr Cahill, Hynes's solicitor, confirmed that Hynes complained about Alexis's conduct. On the witness stand Mark FitzGerald denied absolutely that he told Dessie Hynes, "We have the shed now and you can hump off'. 7. The Mad Blaneyite Provo Get In April 1981 Alexis FitzGerald rang John Feeney of the Evening Herald and told him he had a nice story for Feeney's Ad Lib column. They arranged to meet the following day, 7 April. At around 5.30pm Feeney, waiting for Alexis, having missed him earlier, went for a drink in O'Donoghue's. After a while Alexis came in looking, according to Feeney in court, agitated. Feeney went to the bar to buy drink and was told by Dessie Hynes, "I don't like your friend". When Feeney and Alexis sat down Hynes went over and remonstrated with Alexis. The account which follows is taken from John Feeney's evidence. Hynes ordered Alexis out of the pub, saying, "You swindled me out of that shed, what are you doing on my premises?" Feeney was taken aback. Alexis "turned bright purple" and left the pub. Feeney followed shortly afterwards. Outside, Alexis said, "John, I don't know why you drink in that place, that man Hynes is a madman. That man is a Blaneyite!" Alexis also made a remark about Hynes being a mad Provo get. 8. A Walk in the Park Both men, at the suggestion of Alexis, went for a walk in Stephen's Green. In evidence, Feeney gave a vivid account of Alexis walking up and down in an agitated manner, swearing, repeatedly referring to Hynes as a madman. Feeney testified that he was in a hurry, asked Alexis to tell him the story he had come to hear, but Alexis kept complaining about Hynes. Alexis, according to Feeney, made three remarks about the shed, in the course of this rant, which we can consider significant. He said, "He commissioned me about that shed because he knew that I was interested in it." And: "That man Hynes hadn't an idea how valuable that shed was. The money he was talking about wouldn't have bought it." (Hynes had claimed he told Alexis to bid anything between £200 and £2,000 for the shed.) And: "How could he ask me to buy the shed for the amount of money he was talking about?" Eventually, according to Feeney, Alexis told him the story which Feeney had come to hear - some information damaging to a rival member of Fine Gael. Alexis in court agreed substantially with Feeney's description of the occasion, including his parting words: "Look after that story for me, John, and don't take a word seriously from that madman Hynes." He denied he made the three quoted remarks about being commissioned to buy the shed. He also denied giving damaging information about another member of Fine Gael. 9. A Phone Call The next morning John Feeney got a phone call at home from Alexis FitzGerald. It would later transpire that the Evening Herald had by threat of a writ been prevented from publishing a story on the case. According to Feeney Alexis said, "John, I hope to God you're not thinking of printing a word that man Hynes said last night ... I hope you're not taking that madman seriously. He's trying to embarrass the shed out of me." Feeney replied that he would do what he liked. Alexis said, "You'll be sorry, John, if you print that". "What the hell are you talking about?" "I've already been in touch with the editor about this. "I've already been in touch with my lawyers." Feeney ended the conversation. It was very early in the morning, he told the court, and he didn't like being threatened before he'd done anything. And, besides, the baby was crying. Alexis denied in court making those threats. 10. Another Meeting on Merrion Row In May of 1981 the then editor of Magill, Vincent Browne, met Alexis FitzGerald in Merrion Row. Alexis asked if "you've heard about the row between Dessie and myself?", nodding over towards O'Donoghue's pub. Browne said he had "heard something" but didn't know what the row was about. Alexis said that Hynes had commissioned him to buy the shed but Mrs O'Donoghue wouldn't sell it to Hynes and so Alexis bought it himself. Both treated the affair lightly, laughing at a row arising from a shed. Shortly afterwards, Browne received a phone call from Alexis' solicitor, Frank O'Donnell, warning him of the consequences of publishing allegations that Alexis had done anything wrong. Again, Browne treated the issue with some frivolity. Browne then reconsidered the matter, believing that threats of legal action prior to publication were an infringement on the freedom of the press. He also concluded that there was an element of deceit in Alexis's actions - in telling him one thing and telling other people something else - and that there were implications of professional misconduct. Alexis denied in court that he told Browne he accepted Hynes's instructions to buy the shed. Browne interviewed Dessie Hynes about the affair. He would later say in court that the information given by Hynes was more favourable than the information given by Alexis. Browne, having received confirmation of Alexis' version of the story from Dessie Hynes, printed several pieces in the Wigmore column of Magill which were critical of Alexis's conduct and which referred humourously to "The Watershed Scandal". 11. Elections Are Held Dessie Hynes decided to use the elections of 1981 and 1982 to put pressure on Alexis to give back the shed. He decided that Alexis's aspirations to honesty in public life didn't match up to his own experience of the man. Hynes considered that FitzGerald wasn't honest enough to be a TD and that he would stand himself in the election to "tell the people of Dublin" the kind of person Alexis was. Cross-examined in court Hynes admitted that if Alexis had during this period given him the shed he would have withdrawn from the election. He was asked if this meant that as long as he got the shed he had little concern for alerting the people of Dublin. He replied, "The people of Dublin wouldn't have any interest in it if you turned a crooked man honest". Hadn't he, Hynes was asked, phoned Fine Gael director of elections Enda Marren and threatened to stand against Mr FitzGerald? "I threatened to stand for my rights." Hadn't he offered to contribute a thousand pounds to Alexis's election fund if Alexis transferred the shed? He hadn't. He had nothing against the party — he had two daughters in Fine Gael, but he never gave a thousand pounds to any party. Hynes testified that another Fine Gael executive, Sean Murray, asked him to back out. "He told me 'you can't win, you don't know your dates'." Hynes agreed that would have pulled out of the elections if he had got the shed. In court he was accused of blackmailing Fine Gale and Alexis. "But", said Alexis' barrister, "he didn't give in". Hynes: "He held on to what he stole." Alexis failed to be elected in 1981 in Dublin South, went to South East in 1982 and was elected. Hynes stood against him and got 222 votes. Alexis lost his seat at the election in November 1982. In the meantime, Alexis had sent a writ alleging slander against Hynes in 1981. He left it lie — never followed up the threat. In court he was accused of using the writ in attempt to silence Hynes, but having no intention bringing the case before a jury of his peers. He denied this. 12. Into Court Dessie Hynes sued Alexis FitzGerald for breach of contract. The action came to court on 22-25 February 1983. The case was presided over by Judge Noel Ryan in courtroom No 17 of the Circuit Civil Court. The case was characterised by heated exchanges between several of the participants. Early on there was an attempt to paint Hynes as unscrupulous in that he opened mail belonging to Paddy O'Donoghue in order to advance his claim on the shed. He denied this. The following day Paddy O'Donoghue testified that since the pub continued to trade under the name O'Donoghue's a lot of the mail to the pub was in that name and Hynes quite legitimately sorted it out and when mail meant for O'Donoghue arrived, he passed it on. Alexis alleged that there was a conspiracy between Hynes, Vincent Browne and John Feeney to do him down. They had met to plot against him. Vincent Browne was behind the whole thing, pushing Hynes. He didn't supply any possible reason for this. Nor suggest why Browne and Feeney, whose antagonism is no secret, should find common cause in plotting against a minor politician. Browne testified that while the articles were concerned with what he considered misconduct by a politician they're not motivated by venom or ill will. On a personal level he liked Alexis, though he didn't think he had any contribution to make as a politician. (Magill can reveal exclusively that while the latter judgement is unchanged the bit about liking him is undergoing review.) Both senior counsel, Aidan Browne for Hynes and Niall Fennelly for FitzGerald, provoked heated responses by their probing and needling. At one point Mark FitzGerald, when it was suggested by Aidan Browne that a note which had made of a conversation with Hynes was an inaccurate concoction instead of "virtually verbatim", erupted, 'I'll get irritated if you continue, Mr Browne!" At the end of his cross-examination of Dessie Hynes, NialI Fennelly drew himself up to his not inconsiderable height and said, "You are an unscrupulous man and will stop at nothing". He then sat down abruptly, just like the lawyers on TV when it's time for a commercial break. He just sat there looking bemused. Aidan Browne, without rising, said, "You're entitled to answer that. That's supposed to be a question." Hynes said, "It's up to him — he's entitled to his opinion." 13. Batemans Law Judge Noel Ryan opened his summing up by observing that "It's always very difficult to see the wheat on a windy day when the chaff is being blown around and gets in your eyes". He produced a law book, Bateman, 11th edition, pages 27-28, and read the law on agents. During the case the judge had twice interrupted witnesses who referred to Alexis as an auctioneer - in this case, he said, Alexis was operating as an estate agent, which was an important difference. Judge Ryan pointed out that an agent brings people together for a contractual relationship to buy, sell, let or lever, and does so on a commission basis. An agent is therefore not an employee — there is no obligation on an agent, even one who accepts a commission, to do anything. There is no breach of contract if the agent does nothing. On this point of law Alexis could not be guilty of a breach of contract. The Judge said he had great sympathy for Hynes but he was denying the claim. He was satisfied that there had been an oral agreement between FitzGerald and O'Donoghue at the dinner in O'Donoghue's house in June 1978. There were faults on both sides. Hynes was at fault in conducting his business with FitzGerald at a meeting in the street, but it was easy to be wise after the event. He was satisfied Hynes tried to commission FitzGerald to buy the shed and that Alexis was "most embarrassed" and had agreed to purchase the shed and left Hynes under that mistaken impression. Alexis perhaps said "I'll do that for you, Dessie" in the sense that politicians make promises but with no intention of doing anything. Alexis had not had "the strength or moral courage to say so at that meeting in Merrion Row — this would have avoided all this nonsense, if the parties will forgive me saying so." While finding against Hynes, Judge Ryan agreed that Hynes should pay only half FitzGerald's costs. Both parties subsequently expressed themselves satisfied with the judgement.