Governor & Company of the Bank of Ireland v O'Donnell and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 02 November 2012 |
| Neutral Citation | [2012] IEHC 475 |
| Court | High Court |
| Date | 02 November 2012 |
[2012] IEHC 475
THE HIGH COURT
BETWEEN
AND
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DIRECTOR OF CORPORATE ENFORCEMENT v BAILEY 2011 3 IR 278
Commercial law - Credit and security - Evidence - Banking law - Litigation - Trusts - Hearsay evidence - Whether portions of witness statement should be excluded - Whether evidence constituted hearsay.
Facts: The plaintiff had initiated proceedings seeking a declaration that certain assets were owned by some of the defendants (the O'Donnells) and were not subject to any trust. The O'Donnells contended that they themselves were not the owners, beneficial or otherwise, of the property in question and had executed letters of wishes in respect of same. The assets were therefore the subject of a transfer of ownership resulting in a trust in favour of their adult children (who were also defendants to the case). It was denied that the trust and/or letters and transactions constituted a pretence or a sham. In the present application the adult children defendants sought to have certain parts of a witness statement excluded by reason that they constituted hearsay or were otherwise inadmissible in evidence. The plaintiff, in other proceedings, had secured a judgment for in excess of €70m against the O'Donnells and believed that the chattels ought to be available to it to satisfy in part that judgment.
Held by Kelly J in refusing the application sought: The plaintiff was entitled to rely upon evidence contained in the transcript of evidence previously given by one of the defendants. A party who made a statement adverse to his case under oath on another occasion could be regarded as having made an admission and evidence of that statement was admissible. It was not a matter for the court at this particular stage to rule upon either the admissibility of or the probative value to be given to such admissions in the context of the case made against the adult children defendants. Questions as to admissibility, relevance, prejudice and probative value were all matters which were peculiarly suited to the trial judge.
1. This is the application of the first four defendants (the adult children defendants) seeking to exclude "such parts of the witness statement of Des Hanrahan dated 9 th October, 2012, as are inadmissible in evidence by reason that they constitute hearsay or are otherwise deemed to be inadmissible".
2. This application is made prior to the trial of the proceedings which is due to commence on 4 th December, 2012 and in circumstances where the adult children defendants have not as yet delivered their witness statements.
3. This action began on 27 th April, 2012. The adult children defendants are the adult children of the fifth and sixth defendants (the O'Donnells). The seventh defendant (Vico) is a company registered in the Isle of Man. The eighth defendant (Chancery) is likewise registered in the Isle of Man. The ninth defendant (Vico Barton) is a company registered in Jersey.
4. In the action, the plaintiff seeks a declaration that the contents of a house called Gorse Hill, Vico Road, Killiney, Co. Dublin and/or 8 Barton Street, London, England, consisting of any artwork, paintings, pictures, furniture, crystal glassware, rugs, antiques, sculptures, jewellery, ornaments, electronic appliances and equipment (the chattels) are the property of the O'Donnells are not the property of the other defendants nor subject to any trust in favour of the other defendants.
5. The O'Donnells have contended that they executed letters of wishes in October 2000. It is alleged that these letters of wishes are valid and effected a transfer of ownership the chattels to a trust in favour of the adult children defendants.
6. Vico delivered a defence on 19 July, 2012. The accuracy of the contents of that defence were confirmed on oath by the fifth defendant. In Vico's defence it asserts that the shares in it are owned by the adult children defendants and not by Chancery. Vico confirms in the defence that it will abide the outcome of these proceedings. This defence contradicts the fifth defendant's admission in his defence that Chancery is the registered owner of the shares in the Vico. Chancery has not delivered a defence and judgment has been given against it in default of so doing. The adult children defendants and the O'Donnells have asserted the Chancery is the legal owner of the chattels at Gorse Hill.
7. Vico Barton, the ninth defendant in its defence states that it has not at any stage asserted and does not now assert an entitlement to or interest in the chattels at Gorse Hill but contends that it is the owner of the chattels at 8 Barton Street. Rather curiously, the defence of Vico Barton is also supported by an affidavit sworn by the fifth defendant and was delivered on the same day as that of Vico. This defence admits that the shares in the Vico are held by Chancery.
8. The O'Donnells have delivered a defence and counterclaim in which they admit that they acquired the chattels but deny that they have held the legal and/or beneficial title to them on the premises at Gorse Hill or Barton Street. They assert that by letters of 20 th October, 2000, they wrote to a trustee (Chancery's predecessor in title) and undertook to care for and support the adult children defendants and to give to those defendants the chattels, then or thereafter contained in the Gorse Hill premises in consideration of the grant by the trustee and/or the adult children defendants to the O'Donnells of a right to reside in the premises. The O'Donnells contend that the chattels at Gorse Hill was settled on the trustee in trust for the adult children defendants. In the alternative, they claim that the chattels are beneficially owned and retained by the adult children defendants. It is alleged that the chattels became vested in the trustee for the benefit of the adult children defendants pursuant to the letters of 20 th October, 2000.
9. Insofar as the property at Barton Street is concerned, the O'Donnells contend that that is owned by Vico Barton. The shares in Vico Barton are, they say, beneficially owned by the adult children defendants. They also allege that the Chancery is constituted as the trustee of a deed of settlement of 16 th December, 1997, whereby all trust property in Gorse Hill and its curtilege became and was vested in Chancery.
10. It is noteworthy that the O'Donnells do not admit that the plaintiff was unaware of this trust settlement and/or the letters of October 2000 and the other transactions alluded to in their defence. They specifically deny that the trust and/or letters and transactions constituted a pretence or a sham or do not reflect the true intentions of the O'Donnells. They also deny that the settlement of the chattels in Gorse Hill on the trustee is void and/or unenforceable.
11. In their counterclaim, the O'Donnells seeks a declaration that the chattels in Gorse Hill are vested in the Chancery on trust for the adult children defendants. They also seek a declaration that the chattels at Barton Street are vested in Vico Barton on trust for the adult children defendants.
12. In the defence delivered by the adult children defendants, they deny that the O'Donnells were the legal and beneficial owners of the chattels held at Gorse Hill. They deny that the plaintiff was not a party to or was previously unaware of any transaction or trust and furthermore deny that the trusts alleged are a sham. They deny that the documents executed by the O'Donnells in October 2000 were a sham. They deny that the trusts are void, unenforceable and of no effect. They also deny that the chattels are the property of the O'Donnells.
13. The adult children defendants assert that the letters in question transferred both legal and beneficial ownership of the chattels at Gorse Hill to them in consideration of the grant by the trustee and these defendants of a right of residence in the premises to the O'Donnells.
14. In the alternative, these defendants also allege that whether by way of settlement on the trust or otherwise, the transfer of the chattels was executed as part of an associated transaction of the transfer of the beneficial ownership of Gorse Hill to the adult children defendants. They allege that the plaintiff was at all times aware of and involved in the transfer of the property and was therefore on notice of the transfer of the contents of the property to these defendants.
15. The adult children defendants also allege that the plaintiff's case is misconceived and that the reliefs claim should be refused. That assertion is made, inter alia, on the basis that at a time when the O'Donnells made representations to their ownership of the chattels and their worth, such representations were false. They contend that the plaintiff knew at all times that the O'Donnells had neither legal or beneficial interest in the property at Gorse Hill but, despite that, it continued to rely on the statements of net worth and continues to do so in these proceedings.
16. These rather convoluted and, by times, contradictory pleadings have had to be mentioned in some detail with a view to attempting to identify the issues which the court will have to deal with at trial.
17. Despite the confusion...
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