Monday 20 November 2017

Mary O'Rourke unable to give evidence in High Court case

Aodhan O'Faolain

FORMER Minister Mary O'Rourke was unable to give evidence today in a High Court action arising out of an arbitration decision over the damaged caused to a family home.

The former TD and Minister has been asked to given evidence in an action brought by Donald McIntyre against Insurance firm Allianz Plc arising out of the arbitration that took place in late 2011.

The McIntyres got into dispute with the insurance firm after a water leak in June 2008 caused what he claims was severe damage to the home he shares with his wife Anna and their two daughters at Ballyboy, Kilcormac, Co Offaly.

Liability was accepted by Allianz who offered the family €120,000 to carry out repairs. However the McIntryres rejected that offer as they claimed the cost of repairing the damage was approximately €300,000.

The matter went to arbitration and Athlone-based engineer Malachi Cullen acted as arbitrator. In December 2011 Mr Cullen ruled the that McIntyres were entitled to €108,000, but also found that aspects of their claim against Allianz was not proven.

In their High Court proceedings against Allianz Plc the McIntyres are seeking to have the arbitration set aside and a new arbitration commenced.

The McIntyres claim the arbitration was not conducted in a fair manner and have alleged Mr Cullen is friendly and well know to an expert witness who gave evidence on behalf of Allianz loss adjuster Kevin Clabby. They also claim that Mr Cullen failed to give reasons for his decision.

In their High Court action, the McIntyres claim that Athlone-based ex TD Mary O'Rourke can confirm that Mr Clabby and Mr Cullen are well known each other, and want her to give evidence to the court.

Allianz deny the McIntyre claims in relation to the arbitration, and further rejects the claim that the former TD has role in the matter.

In affidavits to the court both Mr Cullen and Mr Clabby, who is also from the Athlone area, denied they are friends or well known to each other.

All parties claim that McIntryres application is misconceived and that the arbitration was conducted in a fair, open and honest manner.

Yesterday, at the start of the action, the court heard the ex FF TD did not want to give evidence in the action, and that she had only been subpoenaed late last Sunday night.

A barrister representing Mrs O'Rourke yesterday handed in a doctor's cert saying she was not able to attend court.

Ms Justice Mary Laffoy accepted the cert and ordered that the case proceed.

Lawyers for the McIntyres had sought an adjournment given Mrs O'Rourkes inability to attend. The McIntyres allege that in a phonecall last September, Mrs O'Rourke confirmed to the McIntyre'

solicitor that Mr Clabby and Mr Cullen are known both to her and to each other, but that she "did not want to get involved."

In an affidavit sworn by a solicitor acting for the plaintiffs, Mr O'Rourke also allegedly said in the phonecall with the solicitor that while she had sympathy for the McIntyres in a "small town like Athlone" where everybody knew each other she didn't want "to do the dirt on them" even though they (Cullen and Clabby) had done the dirt on someone else.

The affidavit added that the TD didn't want to be an informer as Irish people didn't like informers.

Frank Beatty Bl for Allianz told the court that the bid to have Mrs O'Rourke give evidence was another "stunt" by the plaintiff, who counsel said had hired a private detective who had harassed both men.

In their affidavits both Mr Clabby and Mr Cullen reject all the claims of bias alleged against them. They denied that they were members of the same GAA club as alleged, and while they had been members of a local yacht club at the same time they did not socialise or were friendly with each other.

Both said that earlier this year they received a number of harassing and threatening phone calls and e-mails from a purported private detective, who made false allegations against them, who they claimed was hired by the plaintiff.

In an affidavit, Mr Clabby said that he did not know Mrs O'Rourke, and added that he doubted that she had made the comments in the affidavit swore on behalf of the McIntyres.

The case continues.

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