Ann Nolan and Elizabeth Nolan and Joan Nolan and Richard Nolan and Patricia Nolan and Sally Nolan and Quest Capital Trustees Ltd v Dildar Ltd and Ciaran Desmond and Colm S McGuide and Derval M O'Halloran Formerly Trading Under the Style and Title of McGuide Desmond Solicitors, A Firm, (The Second Named Defendant Now Trading Under the Style and Title of Ciaran Desmond Solicitors) and John Millett and Pinnacle Pensioner Trustees Ltd and Dildar Ltd and John Millett Independent Financial Advisors Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 12 December 2024
• Neutral Citation: [2024] IECA 298
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2024 No 74

Between/

Ann Nolan and Elizabeth Nolan and Joan Nolan and Richard Nolan and Patricia Nolan and Sally Nolan and Quest Capital Trustees Limited

Plaintiffs/Appellants

and

Dildar Limited and Ciaran Desmond and Colm S McGuide and Derval M O'Halloran Formerly Trading Under the Style and Title of McGuide Desmond Solicitors, A Firm, (The Second Named Defendant Now Trading Under the Style and Title of Ciaran Desmond Solicitors) and John Millett and Pinnacle Pensioner Trustees Limited and Dildar Limited and John Millett Independent Financial Advisors Limited

and by Order

Dillon Kenny and Darren Denny

and by Order

Paul Kenny

Defendants/Respondents

and by Order

Stephen Declan Murphy, Edel Murphy, Kevin Joseph McMahon, John Lynch, EFG Bank AG, BNP Paribas Wealth Management, United Overseas Bank Limited and Allied Finance Trust AG

Third Parties

[2024] IECA 298

Allen J.

Butler J.

Hyland J.

Record Number: 2024 No 74

High Court Record Number: 2017/ 6193P

THE COURT OF APPEAL

Return of monies – Admissibility of evidence – Credibility of witnesses – Appellants seeking return of monies – Whether witnesses had been untruthful

Facts: The appellants, the Nolans and Quest Capital Trustees Ltd, issued proceedings seeking, inter alia, the return of monies and tracing remedies. The appellants appealed to the Court of Appeal against the findings of the High Court ([2024] IEHC 4), both in respect of the trial judge’s rejection of the case against Mr Millett, Pinnacle Pensioner Trustees Ltd and John Millett Independent Financial Advisors Ltd (the Millett respondents), and the tracing claim. However, it was identified that a number of the appeal grounds were no longer being pursued. What remained in the appeal were evidential issues. The appellants sought to use Chapter 3 of the Civil law and Criminal Law (Miscellaneous Provisions) Act 2020 to admit into evidence certain documents. The appellants argued that no objection was permissible given the failure to serve a notice of objection prior to the trial as prescribed by s. 15(2). The appellants also challenged the trial judge’s decision to refuse their application to admit documents pursuant to s. 16(1) and (2)(c). The remaining issues arose out of the trial judge’s findings of a lack of credibility on the part of two key witnesses for the appellants. The appellants argued that in relation to areas not affected by the findings of untruthfulness, the trial judge was not entitled to disbelieve the witnesses on general credibility grounds where the evidence had not been controverted. Finally, the appellants argued that the lack of evidence controverting specific allegations made by the witnesses was itself a form of corroboration, and that the High Court should have drawn adverse inferences from it.

Held by Hyland J that if documents have been served on the other side within the meaning of s. 15(1)(a) - as was conceded to be the case - there is no obligation to serve a notice of objection in advance. She held that a trial judge is entitled, when considering fairness under s. 16(2)(c), to consider the application in the context of the trial, and why a party needs to rely upon the statutory scheme introduced by the Act; the appellants failed to establish an injustice to them, or manifest error of assessment, in the exercise of the trial judge’s discretion. Hyland J concluded that there was sufficient evidence to justify the trial judge’s conclusion that the two witnesses knew that the money would not be within their control and/or was being invested. Hyland J held that the proposition that the trial judge was not entitled to disbelieve them on general credibility grounds where the evidence had not been controverted would considerably limit the discretion of a trial judge and was contrary to the principled approach subtending Shelly-Morris v Bus Átha Cliath [2003] 1 I.R. 232. Hyland J held that where the trial judge did not find a prima facie case, he was entitled not to draw inferences, or treat as corroboration, the absence of evidence.

Hyland J rejected the appeal of the appellants on all grounds.

Appeal refused.

NO REDACTIONS NEEDED

JUDGMENT of Ms. Justice Hyland delivered on the 12 day of December, 2024

INTRODUCTION

1 This appeal concerns a challenge to how the trial judge treated the evidence – both the evidence given, and evidence sought to be admitted – in the course of a 22 day trial about a commercial dispute between a number of parties. Judgment was given on 10 January 2024 ( [2024] IEHC 4). The appellants are the trustees of Oaklands Property Trust (“OPT”), which holds the pension funds of thirteen individual members of the Nolan family. The Nolan family operate a transport and logistics company known as Nolan Transport. The appellants alleged that the sum of €6.9 million was transferred by a previous pension trustee, Pinnacle Pensioner Trustees Limited, the sixth respondent, on their instruction, and that those funds were misappropriated.

2 Between January 2013 and June 2013, the funds were moved in three tranches from an account in Investec Bank in Ireland to the account of a company known as Middle Eastern Continental Development (“MECD”) in a Saudi Arabian bank in Dubai. The monies were then transferred to the account of the company known as Clear Visions Solutions SA (“CVSSA”) in a Swiss bank, EFG Bank (“EFG”) in Zurich. Those funds have not been returned to any of the appellants.

3 After the trial of the action had concluded it emerged that a sum of €1,147,223.75 remained in the CVSSA account and a sum of €462,044.97 remained in the MECD account. In July 2023, the trial judge directed those monies be paid into court. By his judgment of 10 January, 2024 he gave directions with a view to establishing the beneficial entitlement of the appellants and other claimants to the funds in court. That part of the judgment has not been appealed.

4 The CVSSA bank account to which the OPT funds were transferred also contained monies belonging to other persons who had placed funds with CVSSA. The first respondent is an Isle of Man company which is the registered owner of a property in Cork formerly owned by Nemo Rangers, described in the judgment of the High Court as the “Nemo Rangers” property. The seventh respondent, Dildar Ireland, is a company incorporated in Ireland. The shareholders of the first respondent hold their shareholding as nominees in trust for Clear Vision Solutions Holdings Inc., which holds its interest in the shares for Paul Kenny, the eleventh respondent, and a John Kenny, and ultimately for their sons Dillon Kenny, the ninth respondent and Darren Kenny, the tenth respondent. For ease of reference, the first, seventh, ninth, tenth and eleventh respondents will be referred to as the “Kenny respondents”. On 3 September 2013, €2,828192.79 was transferred from the CVSSA account in EFG to the vendor's solicitors for the purpose of purchasing the Nemo Rangers property. The claim made by the appellants against the Kenny respondents altered over the course of the case, but by the time the matter came before this court, the appellants' claim was that they were entitled to exercise a right of tracing in respect of part of their claim into the Nemo Rangers property held in the name of the first respondent.

5 These proceedings were issued by the appellants in 2017 seeking, inter alia, the return of the monies and tracing remedies, and were entered into the Commercial List of the High Court. After a very considerable number of interlocutory applications in the matter, totalling 69, the trial commenced in May 2022.

6 On Day 5 of the trial the proceedings were settled against the second respondent, Mr. Desmond. He consented to judgment in the amount of €6.9 million and costs for “ negligence, breach of contract and breach of fiduciary duty in the context that he controlled CVSSA and that the plaintiff's pension monies were in CVSSA”. That was the extent of the information given to the Court in this respect. In the pleadings and in the opening in the High Court the appellants had made a wide range of claims against both Mr. Desmond and Mr. Millett, John Millett Independent Financial Advisors Limited and Pinnacle Pensioner Trustees Limited (described as the “Millett respondents”, described below in this paragraph). However, because Mr. Desmond compromised his claim with the appellants on Day 5, that part of the case became focussed on the Millett respondents. In summary, the appellants claimed that Mr. Millett was personally liable for fraudulent misrepresentation and deceit; that he and John Millett Independent Financial Advisors Limited, the eighth respondent, owed the appellants' fiduciary duties together with duties in tort and contract; that the eight named respondent was the corporate vehicle through which Mr. Millett dispensed pension and financial services and that Mr. Millett represented that the sixth named respondent, Pinnacle Pensioner Trustees Limited, of whom Mr. Millett is a director, was a suitable person to act as a trustee of OPT. On that basis, and in reliance upon the representations alleged to have been made by Mr. Desmond, the appellants say they consented to Pinnacle becoming a trustee of OPT on 1 December 2012. A claim was also made against the Millett respondents for breach of the appellants' personal data.

7 In his judgment, the trial judge dismissed the claim against the Millett respondents, other than the claim in respect of the unauthorised disclosure of personal data, in respect of which he ordered Mr. Millett to pay to each of the personal appellants the sum of €500 for nominal damages; dismissed the counterclaim of the sixth and eighth respondents in circumstances where they were not represented at the trial; and made an order giving directions in relation to how the funds held in court should be dealt with.

8 A wide ranging appeal was filed on 15 March 2024 against the findings...