Cagney v First Active Plc

CourtHigh Court
JudgeMr. Justice Charleton
Judgment Date15 June 2007
Neutral Citation[2007] IEHC 191
Docket Number[No. 1682P/2000]
Date15 June 2007







[2007] IEHC 191

[No. 1682P/2000]


RSC O.15 r13

Mr. Justice Charleton

The plaintiff is a businessman who lives in Naas, County Kildare. For many years he was an insurance broker and was successful in this occupation. The limited liability company through which he traded has since been wound up. On the evidence before me, it was solvent on winding-up. In 1995 the plaintiff began to get out of the business with which he was familiar by reason of a personal tragedy that had occurred three years earlier. On taking a stroll on a pavement with his wife, a car mounted the footpath and killed her, leaving the plaintiff seriously injured. He was in hospital for a number of weeks. The tragedy devastated his life. Even three years later he was vulnerable and in speaking about this matter some fifteen years later, during the course of this hearing, he found it difficult to control his emotions.


In the aftermath of this tragedy, it is obvious to me that the plaintiff was deeply depressed. In addition, he was coping with litigation concerning the accident and was focussed on the amount of compensation which he might recover and how best he might make provision for his two daughters, Helena and Geneviève. It is that financial provision which is the cause of the controversy which I now have to resolve.


The plaintiff, together with his late wife Helena, had an investment in Norwich Union which by 1995 was worth in excess of IR£100,000. He was the survivor on that policy and therefore entitled to the benefit of it. In addition, he had investments elsewhere including in Lombard and Ulster Banking Limited and in the branch of the defendant, which was then the First National Building Society, in Naas, County Kildare and in other places. I am satisfied that he found himself unable to work and reluctant to involve his daughters in administrative duties which had become an unbearable burden to him.


The plaintiff cashed in his Norwich Union policy, which he described as a premium bond, and a cheque in the sum of IR£118,325 was made payable to him on 9th May, 1995. Given the administrative requirements usually attendant on the encashment of such a policy, it must have been April or very early May when he gave the instructions to Norwich Union which resulted in that cheque. By letter dated 6th March, 1995 Lombard and Ulster Banking Limited forwarded a cheque payable to the plaintiff's company in the sum of IR£22,836.48. He therefore had a sum in excess of IR£141,000 available to him for the purposes of investment in May, 1995. What happened next, he blames entirely on the defendant bank, formerly a building society.


At that time, the plaintiff was friendly with the third party, who described himself in the witness box as Thomas Joseph Sheridan. He is a businessman and investor. He was engaged in clothing manufacture. For some years he has run a number of limited liability companies. At least one of these was heavily invested in by a foreign national. There has been a dispute as to how friendly the plaintiff, Conor Cagney and the third party Tony Sheridan, as he is commonly called, were. Mr. Cagney's answers in relation to this matter were dismissive of any suggestion that a close friendship existed between them. Mr. Sheridan, on the other hand, was keen to emphasize how close they were and how supportive he had been in the aftermath of the tragic death of the late Mrs. Cagney. In that regard, the questions put on instructions, and put properly, were stronger than the actual evidence produced by Mr. Sheridan. Mr. Cagney was keen to emphasize that he was friendly with all his clients and that Tony Sheridan was just another one of them with whom he had good relations. Whereas Mr. Sheridan may have exaggerated the extent of their friendship, I am satisfied that it was close, certainly from the point of view of their mutual interests in business. That friendship has not survived.


The plaintiff claims that on 16th May, 1995 he made an agreement with the defendant whereby he invested IR£141,161.48 at the highest yielding rate, in his own name and in that of his daughters Helena Cagney and Geneviève Cagney, which was made repayable on demand. As a matter of fact, this is not what the relevant documents indicate happened. The action by the plaintiff is therefore for conversion, misrepresentation, breach of contract and negligence. The documents disclose that on 17th May, 1995 an account was opened by C. Cagney, of an address which is slightly incorrect, which was a savings account in the defendant and that the opening lodgement was IR£41,161.48, in the name the plaintiff, who described himself as retired, and in the name of H. Cagney, who is described as a student. The document was apparently signed by C. Cagney and H. Cagney. By a document dated the same day, a savings account was opened in the name of J. Sheridan with a vague address, which would be completely insufficient for postal purposes, viz."Naas, County Kildare", without a telephone number, with an occupation given as property investor and signed by J. Sheridan. The opening lodgement was IR£100,000; the balance of the plaintiff's money.


The plaintiff has alleged that these accounts were fraudulently created, that he never signed these documents, nor did his daughter, and this was also her evidence, or Mr. Sheridan, as far as he knows; he suspects that the defendant and the third party are"in cohoots" to deprive him of his money.


In addition to the foregoing, the plaintiff asserts that there has been another conversion, attracting the same relief as in respect of the first. The plaintiff claims that on the faith of representations similar to those in respect of the first alleged transaction, he gave shares to the defendant, but merely for the purpose of valuation, and these were encashed without his authority, realising IR£10,515.50. By a term account application form dated the 20th August, 1995, an account was opened in the name of M. Cagney and Geneviève Cagney, in the defendant, with an opening balance of IR£10,515.50. It is signed by M. Cagney and Geneviève Cagney, but the last given-name is slightly misspelled. The plaintiff denies that this is his signature or that he signs himself as M. Cagney. His daughter has indicated that the signature on this document is not her signature. Therefore, it is alleged, that it is another forgery by the defendant to add in the earlier two.


In its defence, First Active PLC, which was formerly the First National Building Society, denies conversion. It states that certain of the monies are still available to the plaintiff and that the bulk of the money that was put into the J. Sheridan account is, in effect, a matter over which they have had no control and have committed no wrong. The defendant joined Tony Sheridan as a third party to this claim. In the third party statement of claim, the defendant states that there is a dispute between the plaintiff and the defendant as to the entitlement of the plaintiff to the sum of IR£100,000 and goes on to assert that in the event that the plaintiff is entitled to the return of that money, the ultimate responsibility is that of the third party. It claims an indemnity. A notice of motion was brought by the third party to dismiss the defendant's claim against him. That motion failed. One of the issues I have to consider is as to whether any case could ever be made out between the defendant and the third party.


I now turn to what, as a matter of fact, has happened to all these monies. Dealing with the last account first, the money from the sale of the shares, this has matured and its current value is around €23,000. The plaintiff has refused to touch it. The evidence of Philip Kerrs, of NCB Stockbrokers, has been to the effect that if, instead of investing in this account, the plaintiff had kept his stocks, they would now be worth around €26,000.


Now I turn to the IR£41,161.48 account in the names of C. Cagney and H. Cagney. On 17th August, 1995 a cash withdrawal was made from it in the sum of IR£4,558.09. On the evidence, I am satisfied that this amount of money was converted into travellers cheques and that the plaintiff spent the money on a visit to the United States of America. This left IR£36,667.19. The account continues in the same names. On 20th June, 1997 IR£37,000 was taken from this account and put into a new account which was backdated for interest purposes to 3rd January, 1997. This also continues to be in the name of C. Cagney and H. Cagney. This account has accrued interest. Again, the plaintiff refuses to touch it.


The largest account, that in the name of J. Sheridan at the unreachable postal address, began with a cheque lodgement on 17th May, 1995 of IR£100,000. On 30th May, 1995, IR£30,000 was withdrawn. On 20th June, 1995 two further withdrawals were made totalling IR£10,000. Another two withdrawals were made on 17th July, 1995 in the sum of IR£23,000. Then, on 18th August, 1995 two withdrawals were made in the sum of IR£10,500. This was followed by a withdrawal of IR£15,000 on 12th September, 1995. A withdrawal of IR£4,500 was made on 12th December, 1995 and a cash lodgement was made to the account in the sum of IR£1,500 on 18th December, 1995. Two withdrawals were made in March, 1996. On 21st March, IR£5,000 was withdrawn and on 27th March, IR£3,000 was withdrawn. In a result, there is less than IR£1,000 in that account. All of these withdrawals were made by cheque. I now turn to the central controversy in this case.


The plaintiff claims that when he was in hospital after his wife's death, his daughters had no money available to...

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