Nolan and Others v Dildar Ltd and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 10 January 2024
• Neutral Citation: [2024] IEHC 4
• Docket Number: [2017/6193 P]

Between

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

Plaintiffs

and

Dildar Limited, Ciaran Desmond, Colm S. McGuire, Derval M. O'Halloran Formerly Trading Under the Style and Title of McGuire Desmond Solicitors, A Firm, John Millett, Pinnacle Pensioner Trustees Limited, Dildar Limited and John Millett Independent Financial Advisors Limited

And by Order

Dillon Kenny and Darren Kenny

And by Order

Paul Kenny

Defendants

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] IEHC 4

[2017/6193 P]

THE HIGH COURT

COMMERCIAL

JUDGMENT of Mr. Justice Denis McDonald delivered on 10th January 2024

Contents

Introduction	3
The case made against the second named defendant (“ Mr. Desmond”) and the case formerly made against the third and fourth defendants	4
The case made against the fifth, sixth and eighth named defendants (“ the Millett defendants”)	8
Other aspects of the case made against Mr. Desmond and the Millett defendants	9
The defence of the Millett defendants	11
The claim made by the plaintiffs against the “Kenny defendants”	13
The defence of the Kenny defendants	17
The further amendments made to the statement of claim in the course of the trial	18
The opening of the case	22
The framework document delivered on behalf of the plaintiffs	26
The resumption of the hearing on Day 7	32
The evidence given on behalf of the plaintiffs	33
The evidence of Mr. Richard Nolan	34
The evidence of Ms. Patricia Nolan	66
The evidence of Mr. Richard Nolan and Ms. Patricia Nolan is unreliable in a number of respects	89
The other evidence before the court	94
The application under Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020	96
The second application under the 2020 Act	104
The evidence of Mr Keith Morris in relation to the extraction of text messages from what purported to be Mr. Desmond's iPhone	112
The chain of custody witnesses	117
Are the text messages extracted by Mr. Morris receivable and admissible in evidence?	120
The other material on which the plaintiffs seek to rely as against the Millett defendants	136
The evidence of Ms. Deirdre Carwood	139
The application by the plaintiffs to withdraw their reliance on the answers to certain of the interrogatories	151
The decision of the defendants not to call evidence	163
Findings of fact and conclusions	164
Findings in relation to the nature of the relationship between the plaintiffs and the Millett defendants and in relation to representations relevant to the nature of that relationship	165
Findings in relation to the individual investments made by the OPT with MECD	173
Findings in respect of the balance of the plaintiffs' case against the Millett defendants (other than the claim against Mr. Millett in relation to the alleged misuse of personal data)	178
The tracing claim in relation to the Nemo Rangers property	193
The impact of the release of claims against Mr. Desmond	195
The personal data claim	195
The money paid into court subsequent to the trial	197
The orders to be made	197
The conduct of proceedings in the Commercial List	198

Introduction

1 . This judgment deals solely with the case made by the plaintiffs against the defendants. The second named defendant has joined a number of third parties to these proceedings but the claim for an indemnity made by him against those parties was not tried at the same time as the action between the plaintiffs and the defendants. The hearing of the claim against the third parties will take place later. This judgment is unusually long. This is because of the issues that have been raised by the defendants in relation to the credibility of the two principal witnesses called by the plaintiffs, the sheer number of other issues in dispute between the parties and because of the approach taken in relation to the admission of documents into evidence. The level of dispute between the parties is also evident from the exceptionally large number of times the proceedings have been before the court at an interlocutory stage. In the period between 7 ^th July 2017 (when the proceedings were commenced) and 4 ^th April 2022, a total of 69 interlocutory orders were made (including two by the Court of Appeal).

2 . The plaintiffs are the trustees of the Oaklands Property Trust ( “OPT”) which holds the pensions funds of thirteen individual members of the Nolan family, namely Elizabeth Nolan, Ann Nolan, Patricia Nolan, John Nolan, Raymond Nolan, Seamus Nolan, Noel Nolan, Brendan Nolan, Richard Nolan, Kevin Nolan, Joan Nolan, Oliver Nolan and Sally Nolan. The Nolan family operate a transport and logistics company known as Nolan Transport. In these proceedings, the plaintiffs complain that monies entrusted by them to a United Arab Emirates company to the tune of €6,960,000 have been misappropriated. They seek the return of that sum. They also seek a declaration that they should be entitled to exercise a right of tracing in respect of part of their claim into certain property held in the name of the first named defendant (an Isle of Man company which I shall hereafter refer to as “Dildar IOM”), The property in question was previously owned by Nemo Rangers in Cork and, for convenience, I will refer to it as “the Nemo Rangers property”. The relevant folios comprised in the property are identified in para. 2 of the amended statement of claim and it is therefore unnecessary to identify them here.

3 . In pursuing these claims, the plaintiffs seek to rely on a number of different causes of action including, in so far as some of the defendants are concerned, the tort of deceit. The plaintiffs' claim, as pleaded, has gone through a number of iterations. The first statement of claim was delivered on 12 ^th February 2018. Subsequently, following the joinder of the eleventh defendant, an amended statement of claim was delivered on 19 ^th July 2019. This is the amended statement of claim by reference to which I will describe the claims made by the plaintiffs in these proceedings. For the reasons described in more detail below, a further amended statement of claim was delivered in the course of the trial on 9 ^th May 2022.

The case made against the second named defendant (“Mr. Desmond”) and the case formerly made against the third and fourth defendants

4 . In order to understand the nature of the plaintiffs' claim, it is necessary to begin with a consideration of the claim which the plaintiffs made against the second defendant and the case previously made against the third and fourth named defendants. Those three defendants were, at one time, partners in the firm of McGuire Desmond Solicitors. However, the only basis on which it was alleged that the third and fourth defendants had any liability to the plaintiffs was that they were partners of the second named defendant, Mr. Desmond, and it was alleged that, by virtue of s. 10 of the Partnership Act 1890, they were liable for breach of duty on the part of Mr. Desmond. Each version of the statement of claim made clear that the plaintiffs did not allege that the third or fourth named defendants acted deceitfully or that they were knowingly involved in a misappropriation of funds, the subject matter of these proceedings.

5 . At this point, it should be noted that on Day 1 of the hearing, I was informed that the case against the third and fourth named defendants had been resolved. The case against them was struck out with no order as to costs as between them and the plaintiffs. Subsequently, on Day 5 of the trial, the second named defendant consented to judgment in the sum of €6,900,000 and costs “for negligence, breach of contract and breach of fiduciary duty in the context that he controlled CVSSA and that the plaintiffs' pension monies were in CVSSA”. A stay of six months was put on that judgment but that stay has subsequently been extended. The reference to CVSSA will become clear presently.

6 . Insofar as the case against the second named defendant, Mr. Desmond, is concerned, the case alleged against him was that he had, at all material times, been the plaintiffs' solicitor. It is alleged in para. 11 in the statement of claim that, in November 2012, Mr Desmond introduced the fifth named defendant, Mr Millett to certain of the plaintiffs and recommended him as a suitable pensions adviser who was both honest and trustworthy. It is alleged in para. 10 of the amended statement of claim that, in the period from October to November 2012, Mr Desmond had advised the plaintiffs that their funds on deposit in Ireland were at risk and that, as a result of the prevailing banking and economic crisis affecting the country, he advised the plaintiffs to transfer their funds to be held on deposit overseas. At this point, it should be noted that the funds in question were not held at that time with any Irish bank. They were held in an account maintained at the Irish branch of Investec Bank ( “Investec”) and no evidence was given at the trial to suggest that Investec was affected by the banking crisis affecting many of the domestic banks. It should also be noted that, as explained further below, a more expansive (and, at least, in one respect, significantly different) version of events was pleaded in the amended statement of claim delivered in the course of the trial.

7 . I address below the changes which the plaintiffs have recently made to their case. Before doing so, it should be noted that, in para. 15 of the amended statement of claim (delivered on 19 ^th July 2019),...