Madigan v Promontoria [Oyster] Designated Activity Company and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Heslin
• Judgment Date: 19 December 2023
• Neutral Citation: [2023] IEHC 736
• Docket Number: [2023 110 CA]

Between

Elaine Madigan

Plaintiff/Respondent

and

Promontoria (Oyster) Designated Activity Company & Tom O'Brien

Defendants/Appellants

[2023] IEHC 736

[2023 110 CA]

THE HIGH COURT

Mortgage deed – Fraudulent instrument – Damages – Appellants appealing from a decision of the Circuit Court – Whether the respondent signed a mortgage deed

Facts: The defendants/appellants, Promontoria (Oyster) DAC and Mr O’Brien, appealed to the High Court from a decision of the Circuit Court. The case was about whether or not the plaintiff/respondent, Ms Madigan, signed a mortgage deed. The plaintiff contended that the signature on the mortgage (and on other documents) was not hers. The case was defended on the basis that the signature was the plaintiff’s and that she signed the mortgage in the presence of a solicitor, Mr Keenan, who applied his signature to the deed, as witness to hers. He was the sole witness for the defendants, whereas, in addition to the plaintiff’s evidence, the High Court had the benefit of expert testimony from a handwriting expert retained by the plaintiff. The defendants’ case was that: the plaintiff executed the mortgage; therefore, there was no question of forgery or fraud in respect of the mortgage instrument registered in the Land Registry/Property Registration Authority; and the defendants were entitled to rely on the charge created by the mortgage instrument, which appeared at Part III of the relevant folio, as a burden on the property.

Held by Heslin J that, having considered all the evidence, and with particular reference to 15 March 2004, he was satisfied of the following: (i) a meeting took place in Mr Keenan’s office; (ii) it was pre-arranged by the plaintiff’s husband, Mr Madigan, and Mr Keenan’s office; (iii) it was attended by Mr Madigan and Mr Keenan; (iv) the plaintiff was not present at that meeting; (v) the questioned signatures Q1, Q2, Q3 and Q4 were not made by the plaintiff but by someone unknown (at a date, time, and place also unknown); (vi) Mr Keenan’s oral testimony was given to the High Court by someone acting bona fide and believing his account to be accurate (which account relied exclusively, not on any memory of any relevant events or matters, but on his interpretation of documents retrieved from his file and reviewed by him, but dating back almost two decades); (vii) Mr Keenan was sincere, but sincerely mistaken, in his view that the plaintiff signed the mortgage at the 15 March 2004 meeting; (viii) Mr Keenan was equally wrong, though no less sincere, in his view that he witnessed her signature on the mortgage; (ix) the signature on the mortgage was a forgery, not the plaintiff’s. Heslin J found that the plaintiff did not sign the mortgage and the plaintiff’s claim must succeed, the inescapable inference being that her signature was forged by another, rendering the mortgage a fraudulent instrument.

Heslin J held that, guided by the authorities and having considered all of the evidence including the duration the plaintiff was deprived of her property, the damage occasioned by the defendants’ failure to maintain it, the significance of the property to the plaintiff qua second family home and the loss of access to that property including as a refuge, in particular during the Covid-19 pandemic, he was satisfied that the plaintiff was entitled to damages, including exemplary damages, in the sum of €53,000.

Damages awarded to plaintiff.

JUDGMENT of Mr. Justice Heslin delivered on the 19th day of December, 2023 .

1 . This case involved an appeal from a decision of the Circuit Court and proceeded before me by way of a de novo hearing. Put succinctly, this case is about whether or not the Plaintiff signed a mortgage deed. The Plaintiff contends that the signature on the mortgage (and on other documents presently discussed) is not hers.

2 . The case was defended ‘squarely’ on the basis that the signature is the Plaintiff's and that she signed the mortgage in the presence of a solicitor, who applied his signature to the deed, as witness to hers. He was the sole witness for the Defendants, whereas, in addition to the Plaintiff's evidence, the Court had the benefit of expert testimony from a handwriting expert retained by the Plaintiff.

3 . In short, this Court's task is to determine whether, on the balance of probabilities, the Plaintiff signed the mortgage, or not. If this Court finds that the Plaintiff did not sign the mortgage, the Plaintiff's claim must succeed, the inescapable inference being that her signature was forged by another, rendering the mortgage a fraudulent instrument. If this Court finds that she did sign the mortgage, there can be no question of such fraud and her claim must fail.

Background

4 . Prior to commencing the within proceedings, the Plaintiff made a complaint to the Law Society in early 2019, to which I will refer presently. In October of that year, the Plaintiff applied ex parte for certain injunctive relief.

5 . By order made on 31 October 2019, his honour Judge Garavan granted an interim injunction which, inter alia, restrained the Defendants (the second Defendants being a receiver appointed by the first Defendants) from advertising or attempting to sell the Plaintiff's property, which is a bungalow in Curracloe, Co. Wexford, comprised in folio 2703F of the Register, Co Wexford (“the property”).

6 . In the manner presently explained, the property is a modest holiday home built by the Plaintiff's parents, which she purchased from them some 3 decades ago.

7 . It appears that the Covid 19 pandemic resulted in delays in respect of the interlocutory hearing. The Plaintiff's application for interlocutory orders was vigorously opposed by the Defendants, who relied, in particular, on averments made by the solicitor identified as witness to the Plaintiff's signature on the mortgage. Later in this judgment, I will look in some detail at certain of those averments.

8 . On 17 June 2022, her Honour Judge Doyle granted interlocutory relief to the Plaintiff, by way of an order which stated, in relevant part:

“THE COURT DOTH ORDER Restrain Defendants from any sale or advertisement of said property whether online, private treaty or any other way pending full trial and proceedings.

Reserve costs.

Maintenance and management of the property to be left to Defendants, noting that it should be properly maintained and managed. Garden curtilage to be maintained…”

9 . The Plaintiff contends that the circuit court's orders in relation to maintenance and management of the property have not been complied with and, in due course, I will examine the evidence touching on this issue.

10 . A trial took place before Judge Doyle on 11 May 2023 and it is the circuit court's order of that date which has given rise to this appeal.

Single-issue case

11 . In the manner put accurately and succinctly by Mr Cahill SC, for the Defendants, this is a “ one-issue case”, that issue being whether, or not, the mortgage in relation to the property was signed by the Plaintiff.

The mortgage

12 . A copy of the mortgage was before the Court. It bears the date “ 22 March 2004” on the first page. The execution page contains a signatures in relation to the Plaintiff's husband, Mr Richard Madigan, and the Plaintiff's name is also signed. On the face of the document, both of these signatures are witnessed by Mr Eamon Keenan, solicitor, and I will presently refer to his evidence.

3 documents

13 . On the Defendants' case, that the Plaintiff signed 3 documents in the presence of Mr Keenan in his office, on 15 March 2004, namely, (i) the mortgage in favour of Ulster Bank; (ii) a Client's Retainer and Authority, and (iii) a Client's Authority for the purpose of Mr Keenan's office taking up title deeds, the Plaintiff gave clear and consistent evidence that she did not sign any of these 3 documents. In short, she contends that her signature on these documents was forged.

Handwriting expert

14 . In the manner I will presently come to, the view of a handwriting expert, Mr Madden, entirely supports the Plaintiff's case. It is appropriate to note that no expert of any sort gave evidence on behalf of the Defendants. Nor was not suggested by the Defendants that, at any stage, they ever sought or obtained any opinion from a handwriting expert which ran contrary to Mr Madden's views.

15 . In short, the expert evidence points entirely one way i.e. supportive of the position which the Plaintiff has maintained at all material times since she first learned (from the receiver, in 2019) that the mortgage was registered as a burden on her property's folio.

16 . The Plaintiff was equally clear in her evidence to this Court that her signature does appear on a “Credit Agreement” application. However, her testimony is that the manuscript entries on that document, which refer to a first legal charge being taken over the property, were not on the document when she signed it.

Full Defence

17 . The basis of the Defendants' opposition to the Plaintiff's claim is clear from the “ Preliminary Plea” in the Defence, delivered on 31 March 2021:

“By way of full defence to these proceedings the Defendants plead that the within proceedings are frivolous, misconceived and bound to fail. In particular, the plea that the Plaintiff herein did not execute a mortgage in favour of the First Named Defendant's predecessor in title over a property situated at Lark Rise, Ballinamorragh, Curracloe, Co. Wexford folio WX2703F (the “Property”) or that said mortgage was fraudulently executed on about 22 March 2004 is unsustainable and bound to fail because (a) the plaintiff and her husband Mr Richard Madigan executed said documents by way of their then retained solicitors Sexton Keenan & Co on or about 15 March 2004 in connection with the mortgage of the property, which said mortgage was registered with the Property Registration Authority of Ireland and was completed in...