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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Corcoran v Eassda Group Ltd & Ors, Fennell v Corcoran & Anor, Cororan & Anor v Promontoria & Anor [No.1] (Approved) [2024] IEHC 760 (04 December 2024)
URL: http://www.bailii.org/ie/cases/IEHC/2024/2024IEHC760.html
Cite as: [2024] IEHC 760

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THE HIGH COURT

[2024] IEHC 760

2008 547 S

 

 

BETWEEN 

JOSEPH CORCORAN

PLAINTIFF

 

AND

EASSDA GROUP LIMITED, EASSDA IRELAND LIMITED

AND ALASTAIR JACKSON

DEFENDANTS

 

AND

PROMONTORIA EAGLE LIMITED AND KEN FENNELL

NOTICE PARTIES

 

2016 6043 P

 

 

BETWEEN 

KEN FENNELL

PLAINTIFF

 

JOSEPH CORCORAN AND KATHERINE CORCORAN

DEFENDANTS

 

2020 4050 P

 

 

BETWEEN 

JOSEPH CORCORAN AND KATHERINE CORCORAN

PLAINTIFFS

 

AND

PROMONTORIA EAGLE LIMITED AND KEN FENNELL

DEFENDANTS

 

 

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 4th day of December 2024

1.                  In August 2005 the Corcorans purchased what they describe in their legal submissions as "our new home in Glenair Manor, Delgany ..." for €1,850,000.  This completely run-of-the-mill transaction has given rise to seemingly endless litigation which has—for the moment at least—culminated in a nine-day hearing before me in April and May 2023.   A very significant range of issues have been agitated in the pleadings.  Even more issues have been thrown up during the course of the hearing notwithstanding the fact that they were not pleaded.  The papers in the case run to five boxes of lever arch files (not including the transcripts of the hearings).  The trial itself saw evidence being given by eleven witnesses.  Much of this evidence has transpired to be of little or no relevance to the real matters that I have to decide. 

2.                  This was a hearing in which passions ran high.  On the first day of the hearing, when Mr. Corcoran was unable to find his notes for the cross-examination of the first witness, he stated: -

"They were there when I left just after your adjournment.  They are now gone.  I don't have those questions.  And I presume the other side now has them."

3.                  In fact there was no reason to believe that either counsel or the solicitors for the Promontoria interests (as I will describe the other side in the proceedings) had filched Mr. Corcoran's cross-examination notes.  Nothing further was made of it by him.

4.                  Equally, during the course of the evidence I was provided with an email sent by Mr. Corcoran some time before the trial was due to begin.   This email was sent directly to a number of lawyers representing the Promontoria interests, including counsel.  I will return to the contents of this communication.  At this point, I will merely say that direct communication to counsel indicating that they will be subject to a criminal complaint in the event that they make certain assertions on behalf of their client is unique.  This communication undoubtedly contributed to the fact that the atmosphere at the hearing was difficult.

5.                  The end result has been that the period covered by the evidence runs from 2005 to 2023.  The parties did not agree on what the issues were in the case.  Even agreeing a chronology proved problematic.  The original chronology prepared by the Promontoria side was stated to be "agreed with Joseph Corcoran", but insertions made by Mr. Corcoran were not accepted as being accurate by the Promontoria interests. 

6.                  The range of legal issues ventilated in the proceedings will be apparent in a later portion of this judgment, when I deal sequentially with the matters raised in the Amended Defence and Counterclaim delivered on behalf of the Corcorans to the 2016 proceedings taken by Mr. Fennell against them. 

7.                  Before moving to the first substantive section of the judgment, I should explain who the parties are.

8.                  As I already stated, the Corcorans are a married couple who entered into contracts in August 2005 to purchase a domestic dwelling in Delgany.  There were two contracts.  The first of these is a contract for the sale of land dated the 4th August, 2005 between Alastair Jackson (as the vendor) and the Corcorans (as purchasers).  The purchase price was €500,000, with a deposit payable of €50,000.  By this agreement, the Corcorans agreed to purchase 6 Glenair Manor, Delgany, County Wicklow.  By a building agreement of the same day, and made between the Corcorans of the one part and Keygo Properties Limited of the other part it was agreed that for a contract price of €1,350,000 Keygo Properties Limited would construct a dwelling house on the site in accordance with agreed plans.  Keygo Properties Limited later changed its name to Eassda Ireland Limited.  At all material times, that company was owned and controlled by Mr. Jackson.

9.                  The Promontoria interests make the case that Mr. Jackson had mortgaged the relevant land on the 23rd February, 2007, that the mortgage was registered against the Delgany land on the 9th March, 2007, that on the 20th June, 2014 the mortgage was acquired by Promontoria Eagle Limited and that on the 21st August, 2015 Mr. Fennell was appointed receiver over certain assets of Eassda and certain assets of Alastair Jackson.  It should be said that the Promontoria interests also claim that Promontoria acquired the relevant security from NALM, which had acquired such security from Bank of Ireland.   

10.              The Promontoria interests also make the case that Eassda entered into a debenture with INBS, that this created a security over the book debts of the company, that this security was transferred ultimately to Promontoria, and that Promontoria appointed Mr. Fennell receiver over the interests of Eassda in the building contract with the Corcorans.

11.              The final player to be identified is Peter Stapleton, who appears to have been appointed a statutory receiver over certain assets of Alastair Jackson and of Eassda on the 8th February, 2012 and the 6th March, 2012 respectively. 

12.              Finally, it should be noted that Mr. Jackson was made a bankrupt by order of the High Court of Justice in Northern Ireland on the 25th April, 2012.  Eassda has been placed in liquidation and since dissolved. 

13.              This sort of narrative will be familiar to anybody who has dealt with litigation involving the financial crash of 2007 and 2008.  Of greater novelty is the fact that, in these proceedings, Mr. Corcoran claims to have acquired the interest of McHenry Golf Limited in a judgment which that company obtained against Eassda Ireland Ltd and Mr. Jackson.  The value of the judgment was €1, 050,000.  On the 3rd December, 2008, a  judgment mortgage was registered against the lands at Delgany pursuant to the McHenry Golf judgment.  Mr. Corcoran claims to have acquired the interest in McHenry Golf Limited in the judgment sum by Deed of Assignment dated 28th September, 2018.  This judgment mortgage ranks below the Bank of Ireland mortgage.

14.              There were four different matters listed for hearing before me. The first in time were proceedings taken by the Corcorans against Eassda and Mr. Jackson seeking (among other things) specific performance of the building contract and the contract for the sale of land. These are the 2008 proceedings. Secondly, there are the 2016 proceedings initiated by Mr. Fennell against the Corcorans seeking, inter alia, declarations that the contract for the sale of land and the building contract are at an end because of the alleged failure of the Corcorans to close them. Associated with this action are the 2020 proceedings taken by the Corcorans against Promontoria and Mr. Fennell. On foot of a case management hearing, Sanfey J directed that the issues which the Corcorans wished to raise in the 2020 action were to be pleaded out as part of their Defence and Counterclaim in the 2016 proceedings. This was done, and the Corcorans delivered a significantly amended and enhanced Defence and Counterclaim in that action. Finally, there were two motion brought by Mr. Corcoran. The first of these sought the appointment of a receiver by way of equitable execution to the land constituting the plot of number 6. The second sought the appointment of the same receiver to open space on the Glenair Manor estate.

15.              While Sanfey J directed that all these matters were to be tried by the same judge, there was understandably no direction as to whether the evidence in one matter was to be evidence in the others. Equally, no agreement to that effect was notified to me. I will therefore decide the plenary proceedings by reference to the oral evidence and such documents as were properly admissible at the hearing. In an exchange with counsel on the first day of the trial, after I had raised the status of the affidavit evidence counsel conceded that the trial would have to proceed on oral evidence. The Corcorans did not disagree with this approach, and even if they had it is the only proper way to proceed. Having decided the issues raised in the plenary proceedings, I will then decide the motions.

The Murphy Judgment

16.              A central event in this saga is a judgment of Mr. Justice Roderick Murphy delivered on the 6th March, 2013.  This judgment was delivered in the 2008 proceedings taken by the Corcorans against Mr. Jackson and Eassda Ireland Limited. Those proceedings were settled by terms of settlement dated 13th October, 2009. 

17.              The terms of settlement were, on their face, a settlement both of the 2008 proceedings "and all issues between the parties...".  The relevant terms read: -

"1.       The parties agreed to complete the Building Agreement of 4th August, 2005 in the contract for sale of 4th August.  All of the General and Special Conditions of said contracts are to remain binding, save insofar as not amended by the terms hereunder."

18.              The price of the contract for sale of the land was varied to €400,000.  The deposit of €50,000 was acknowledged by Mr. Jackson.  The settlement stated expressly that the remaining €350,000 was to be paid by the Corcorans.  Equally, Clause 3 of the terms of settlement provided that the contract price for the building contract was amended to €1,000,000 and the deposit of €135,000 was acknowledged, leaving a balance of €955,000 inclusive of VAT. 

19.              The balance of the terms of settlement read: -

"4.       The closing date under Clause 28 of the Contract for Sale and Clause A(iii) of the Building Agreement shall be amended to be 28 days after the issue by the Independent Architect (as defined below) of a Certificate that all works (including all snagging and/or major or minor defects if any) have been completed to the satisfaction of the Independent Architect.  The Certificate shall be final and binding on all Parties.

5.         The Parties agree to appoint an Independent Architect to be agreed by solicitors in 14 days or else as nominated by President RIAI as an Independent Architect to rule on the completion of the work.  The defendant shall pay the costs of the Independent Architect, and the following is agreed in relation to the said appointments.

(i)         The Independent Architect shall have regard to the plans including all documents itemised in the planning permission.

(ii)        Any amendments to the original plans evidenced by the defendants their servants or agents in writing.

(iii)      The Reports of Mr. Michael O'Neill of October 2006, June 2009, September 2009, October 2009.  The Independent Architect shall have regard to same but is not bound by them. 

(iv)       The three page schedule of additional works or clarification.

(v)       Any submission of the Parties professional advisors, and before issuing the Certificate shall have regards to their comments on snagging."

20.              Michael O'Neill, referred to at Clause 5(iii), was the architect retained by the Corcorans. 

21.              Paragraph 6 related to the conveyance of the lands.  Paragraph 7 reads: -

"The defendants to produce a letter from Governor and Company of the Bank of Ireland in a sum sufficient to cover all outstanding works and that monies will be released to cover outstanding works and that monies will be released to cover the works.  Letter to be produced within 10 days.

22.              The terms of settlement then concluded: -

"9.       The 'Works'; as defined by the Building Contract and/or amplified by these Terms to be completed in no longer than six months from the date hereof.

10.       At closing the Defendants' solicitor will provide:

            (1)        Appropriate Home Bond Certification.

(2)        Such Certificates from their Architect Mr. Noone as are required by the General and Special Conditions of Sale.

(3)        All other documents required by the contract. 

11.       These terms shall remain strictly confidential to the parties and their legal and professional advisers.

12.       The plaintiffs' expert may inspect the premises on one occasion (or such further occasions as the parties' solutions (sic) may agree) prior to the issue of the Independent Architect's Certificate (approx. 7 days prior).  Such inspections at cost of the plaintiffs."

23.              The parties agreed on liberty to apply, that a copy of the terms were to be retained in the file of the High Court, and that each party would bear their own costs. 

24.              There was very considerable controversy at the trial as to the adequacy of the funds committed by Bank of Ireland, the provision of documentation to the Independent Architect, and the dealings between the solicitors on the latter of these points.  However, before exploring whether any of this is proper to decide at this time, it is essential to look at the judgment of Mr. Justice Murphy.  This judgment resulted from the re-entry of the 2008 proceedings by the Corcorans. 

25.              In a very careful judgment, Mr. Justice Murphy began by defining the issue before the court.  He said: -

"The application to the court is on the basis of the implementation of a settlement agreement dated the 30th (sic) October, 2009, in relation to the compromise of a complex and protracted proceedings which, for the purpose of background, the court proposes to summarise insofar as it would appear to the court that these matters have, notwithstanding the terms of settlement, been the subject of applications to the court following the settlement agreement to the 13th October, 2009, relating to the vacating of a lis pendens on the entirety of the development other than in relation to No. 6 Glenair Manor, the subject of the contract of the sale of land and the bidding contract dated 4th August, 2005.

The first named plaintiff was granted an order of the court on the 22nd September, 2010, to allow the matter to be re-entered on the basis that the terms of the settlement were breached by the defendants."

26.              The judge then recited the history of the proceedings.  In doing so, he recorded the fact that there was an issue about the boundary line between Number 6 and Number 5 Glenair Manor, which was ultimately resolved.  Having described the settlement, he continued (at p. 8) to find: -

"Denis Handy Dip.Arch., FRIAI, MIDI was retained by the receiver, Mr. Peter Stapleton of Lisney, who had been appointed by NAMA on the 8th February, 2012. 

Mr. Handy was instructed to inspect No. 6 in order to issue a certificate of completion, only if the snagging items identified in an inspection on the 29th (sic) October, 2010 had been completed and if fittings removed since that date had been replaced. 

On the basis of visual inspection on the 18th (sic) May, 2012, Mr Handy confirmed in his Certificate of Completion dated the 19th May 2012, at para. 4, that the above items of work had then been completed. 

He further confirmed that, as far as could be ascertained, the electrical and mechanical services were functioning satisfactorily at the time of the inspection.  In his opinion the work in constructing the house had achieved Practical Completion.

He referred to previous reports on the property and to items having been omitted from the snag list that were understood to be awaiting completion by the purchaser but were yet to be finished, including some floor finishes and the related final fixing of some skirting board, some fittings in the master bedroom en suite and the completion of the kitchen.

He noted that the house had been near completion but unoccupied for approximately two and a half years.  Some movement, hair cracks and shrinkage might therefore reasonably be expected when the heating system was switched on for habitable purposes. 

He said that the certificate was issued solely for the purpose of providing evidence of completion and only for the works referred to.  It was not a report on the condition or structure of the building.  For the purposes of the inspection no opening up was carried out.  The inspection was therefore superficial only and took no account of works which were covered up, inaccessible or otherwise obscured from view.  'Visual inspection' means the inspection of the works referred to as existed on the inspection date. 

The certificate did not in any way warrant, represent or take into account any of the following matters: planning permission or building regulation compliance; matters in respect of private rights or obligations; matters of financial contribution and bonds, and, development of the property which might occur after the inspection date."

The judge then set out the contents of a letter dated the 7th May, 2010 from Mr. Corcoran to Mr. Handy.

27.              Murphy J. then went on to summarise the evidence of Mr. Handy.  During the course of this, the court records that Mr. Handy had stated in communications to Mr. Corcoran "that [Mr. Handy] had no detailed information on the settlement regarding his role, other than the general one of 'prepare a snag list and carry out a final inspection'."

28.              Submissions made by Mr. Corcoran are then recorded at para. 6.2 of the judgment.  These are important.  They read: -

"6.2     Mr. Corcoran, in person maintained that the independent architect changed his terms of reference and that his certificate could not, accordingly, be binding.  His certificate did not comply with the parties' terms of reference to investigate major and minor snags.

Mr. Corcoran maintained that the bank letter issued did not provide for funding of all works which were to have been completed within six, and not thirty, months.  All items were not completed at the time of certification.  The defendants were grossly insolvent.  In March 2012, a receiver was appointed over the first named defendant and, on the 4th May, 2012, the second named defendant applied for bankruptcy.

Mr. Corcoran said that he put the house on the market as the defendants were in breach of the settlement agreement.  He maintained that if the defendants were sure of their position they would have issued notification to close the sale within 28 days.

He sought reliefs that the contract be specifically performed for the sum of €700,000 less the cost to bring it up to builder's specification at €97,000 together with costs."

29.              In the same paragraph of the judgment, the following submission by Mr. Corcoran was recorded: -

"He believed that the defendants had attempted to pervert the function of the independent architect.  The instructions issued by the independent architect were not in compliance with the terms of settlement.  Mr. Corcoran said that he had been informed that he could not communicate with the independent architect.  He referred to an email from Mr. Handy, the independent architect, on the 23rd August, 2010, saying that he believed that his role was to 'prepare a snag list and carry out a final inspection.'  Mr. Corcoran said that the fundamental misunderstanding of Mr. Handy's function was compounded by the failure of the defendants' solicitors to supply a copy of the settlement to Mr. Handy.  He had supplied a copy of the settlement terms to Mr. Handy."

30.              The next portion of the same paragraph of the judgment records a submission by Mr. Corcoran to the effect that at a hearing on the 9th October, 2009 he had attempted to "enter into evidence the fact that the first named defendant was in financial difficulties and technically insolvent due to monies loaned by it to two golf courses owned and controlled by the second named defendant who is unlikely to recover any of the funds."  Mr. Corcoran also submitted to Mr. Justice Murphy that the defendants had "omitted to disclose that Eassda Limited, the main operating company under the control of the second named defendant, was served with a petition to wind up the company by the UK Revenue and that on the 10th November, 2009, an administrator was appointed to that English company."

31.              Section 7 of the judgment of Murphy J. refers to affidavit evidence of Mr. Alastair Jackson which alleged that: -

"Under that settlement, agreed between the two legal teams, neither the plaintiff nor the defendant could liaise with the independent architect.  Only the solicitors would do so.  Despite that, Mr. Corcoran had continually contracted the independent architect and furnished him with documents, without copying same to the defendants' solicitor. 

Mr. Jackson said that the only party delaying the completion of the house was Mr. Corcoran by not supplying the materials as agreed and then not complying with the settlement in place.  The independent architect had produced his final snag list, although Mr. Corcoran never availed of the opportunity to inspect the dwelling prior to the independent architect furnishing that final list."

32.              The judgment goes on to record that the Corcorans had registered a lis pendens on the entirety of the development known as Glenair Manor on the 15th September, 2008, as a result of which none of the properties in the development could be sold.  Finally, on the evidence and argument, Murphy J. records that Mr. Corcoran in reply said that the inspection by the independent architect took place in May 2012, without notification to the plaintiffs.  Mr. Corcoran said that he had not inspected the house, but that his expert had done so on the 19th May, 2012 "when Mr. Handy was conducting his final inspection and the door was open.  He said there were obvious defects."

33.              Having set out the legal principles, Murphy J. then set out his finding of fact and his conclusion.  Given the incessant dispute at the hearing before me as to exactly what the judgment and order of Murphy J. entailed, it is necessary to set out this section of the judgment in full: -

"It seems to the court that in the present case the parties had agreed to appoint an independent architect to deal with the matter of the completion of the contract and, indeed, not to interfere with his investigation.  Moreover, communication was to take place through the respective solicitors.

The documents and submissions to be given to the independent architect were defined.  There was no provision for any of the parties to supply documents or to communicate with the architect, nor was the terms of settlement to be given to him.

Moreover, given the extensive pleadings, referred to above, it is clear that the issues arising therefrom were compromised in terms of the settlement and that the independent architect would, in turn, certify completion.  During this period the complex and protracted pleadings from the 8th April, 2008, to the 19th May, 2012, could be narrowed and resolved.

Given that position it seems that the solicitor for the defendants could not be faulted for not giving the terms of the settlement to Mr. Handy, as by virtue of para. 11 of the agreement the Terms of Settlement 'shall remain confidential to the parties and to their professional advisors'.

Mr. Handy had been appointed as the independent architect to issue a certificate of completion if the snagging items identified in the inspection of the 29th October, 2010, had been completed and also of (sic) fittings removed since that date had been replaced. 

Mr. Handy had been appointed pursuant to the terms of the settlement and not otherwise. 

The court is of the view that it was inappropriate for Mr. Corcoran to have written to Mr. Handy on the 7th May 2010.

The court is of the view that it is not, in the circumstances, appropriate that that letter nor, indeed, any further correspondence or snag lists be considered by the court. Such are not relevant and should be excluded ...

It seems to this court that following Ascough and Hollingsworth, that the instructions given by the solicitors on behalf of the parties through the solicitors for the defendants was what the settlement agreement provided.  No issue was taken in relation to the defendants' solicitor instructing Mr. Handy on behalf of the receiver which was done, according to the evidence, as a matter of convenience and on notice to the plaintiffs. 

The terms (sic) of Settlement provided that the defendants produce a letter from the Bank of Ireland 'in a sum sufficient to cover all outstanding works and those monies will be released to cover the works.  Letter to be provided within 10 days'. 

The letter from Jim Hackett, Senior Business Manager, of the bank dated the 9th November, 2009, some four weeks later, stated with reference to the previous letter of the 6th November that:

'I confirm that we are making available to Mr. Jackson sufficient funding to cover the cost of outstanding work on the property at No. 6 Glenair Manor.'

The letter noted the cost of outstanding work agreed between Mr. Jackson and the main contractor, Willow Court, based on completion of work schedule set out by architects for both Mr. Jackson and the purchaser. 

If the independent survey proposed in the agreement increases the requirement, any additional borrowing would be subject to bank approval.

The defendants' solicitors said that they sent that letter directly to Mr. Corcoran in excess of one year before their letter of the 10th December, 2010, notifying Mr. Corcoran that the house was ready and that the bank letter was no longer relevant.  Mr. Corcoran had written in October 2010, to say that he was not happy with the bank letter.

The court is of the view that there was no objection taken to the letter at the time it was sent and that no issue now arise (sic) in relation thereto. 

It follows from the report of Mr. Handy dated the 19th May 2012, that there has been practical completion of the contract which determined the issues between the parties. 

The pleadings are no longer relevant, given the settlement of the 13th October, 2009, witnessed by H.J. Rowantree solicitors (sic) on behalf of the plaintiffs and by Grainne White, solicitor on behalf of each of the defendants. 

11.3     The court will, accordingly, grant specific performance of the settlement of the 13th October, 2009.  The court is not satisfied that the terms of the settlement were breached by the defendants.

As already referred to, the court is of the view that it was inappropriate for Mr. Corcoran to have disclosed the terms of settlement and to have written to the independent architect and that, in so doing, that he was in breach of the Terms of Settlement.

Moreover, he had certain obligations with regard to the three page schedule of additional works in relation to the selection and nomination of fittings within 21 days (para. 8 of the terms of settlement); the inspection prior to the issue of the independent architect's certificate and to the delays in relation to the furnishing of proof of loan approval.

This had the effect of further delaying the implementation of the settlement agreement.

The court will, accordingly, order the specific performance of the terms of settlement of the 13th October, 2009."

34.              In the order of the High Court dated the 14th March, 2013, and perfected on the 11th April, 2013, Mr. Justice Murphy refused the Corcoran's application for their costs, granted Mr. Jackson and Eassda a small portion of their costs, and ordered: -

"The Court Doth grant specific performance of the Terms of Settlement of the 13th October, 2009 within 28 days of this date and Doth Order and adjudge accordingly."

35.              I have set out in very extensive terms the 2009 settlement, the judgment of Murphy J., and the order of which the court made in early 2013.  I have done so because it has been contended on behalf of the Corcorans that the certificate of Mr. Handy related solely to the carrying out of the snagging items, and did not constitute a certificate of practical completion within the meaning of the settlement agreement.  Indeed, at page 106 of Day 2 Mr. Corcoran said: -

"That is the core of everything, Judge."

36.              I agree with Mr. Corcoran that the scope of the Handy Certificate, as found by Mr. Justice Murphy, is of crucial importance.  I do not agree with Mr. Corcoran as to what he says the scope of that certificate was.  It is plain that Mr. Justice Murphy has found that the certificate of Mr. Handy is one addressing not just snagging items but also the practical completion of the works for the purpose of the settlement agreement.  It follows that his direction that the contracts be specifically performed requires Mr. Jackson and Eassda Ireland Limited (or the person standing in their shoes) to show good title and to hand over possession of the premises to the Corcorans, and for the Corcorans to pay the money that they owe on foot of the contracts they entered into in 2005 (as varied by the settlement agreement).  Nothing further is to be done by either party. 

37.              Notwithstanding the clear meaning of the judgment and order of Murphy J., the Corcorans have not only denied what the judgment requires but have also sought to reagitate in this hearing a number of the issues put before Mr. Justice Murphy over a decade before the trial before me commenced.  In the next section of this judgment I will set out a summary of the evidence.  It will, however, be immediately apparent that much of this evidence (and much of the examination of witnesses) is immaterial in the light of the judgment of Murphy J.

The Evidence

38.              The first witness to give evidence was Ms. Grainne White, the managing partner of Coughlan, White and Partners.  She had started acting for Mr. Jackson in 2001 or 2002.  She gave evidence that he had very large borrowings with Bank of Ireland and Irish Nationwide Building Society, and was one of the first 100 borrowers admitted to NAMA.  Ms. White gave evidence that she had executed a Deed of Mortgage and Charge in favour of Bank of Ireland. The deed was dated 23rd February, 2007.  Ms. White gave evidence that she had a power of attorney "in place to sign documents" as Mr. Jackson was involved in a large number of property transactions but lived in Northern Ireland and had interests in France which meant that he was "away a lot". 

39.              Ms. White gave evidence about the settlement agreement, about the Corcorans' application for specific performance and the reaction of the vendors which was: -

"Yes, no problem - let's complete, please."

40.              After the settlement agreement was entered into, Mr. Corcoran complained that Ms. White had not properly briefed the architect.  She gave evidence that: -

"But I actually agreed with Mr. Corcoran's solicitor, Jack Roundtree, Roundtree Tarpey, of what I - So we are down to that level of detail.  I agreed with Mr. Corcoran's solicitor at the time what I produced to the Architect, what his brief was.  And we gave him the extracts of the settlement only applicable to himself.  And by letter to the Architect it was agreed by Mr. Corcoran's solicitor."

41.              Subsequent evidence was given by Mr. Roundtree on this issue, which did not agree with Ms. White's testimony.

42.              Ms. White gave evidence about an alleged failure on the part of Mr. Corcoran to provide materials which would allow No. 6 to be completed.  She also gave evidence about the timing of funding from the Bank of Ireland, and the difficulty in getting builders back onsite in 2010 to complete the house. 

43.              Ms. White  gave evidence that certain assets of Mr. Jackson had transferred to NAMA, so that at the time of the hearing before Mr. Justice Murphy she was taking instructions from NAMA through the receiver, Mr. Stapleton.  Ms. White confirmed that, following the judgment and order of Mr. Justice Murphy, NALM executed a draft deed of conveyance, left it undated, and sent it to Ms. White's firm to be held on trust for NALM pending receipt of funds from the Corcorans on completion of the sale.  She said:

"We actually thought, as did Mr. Roundtree, that Mr. Corcoran was eventually going to complete and, in light of the level of detail and deep dives that Mr. Corcoran did into various matters, we spent a lot of time and effort making sure absolutely everything was perfect.  He had everything required - the commencement notices, the certs of compliance, the certs of compliance with building regs, the supporting documents, Homebond.  So we would have spent a lot of time and effort to make sure absolutely everything was perfect, ready to go.  And, yes, we drafted the deed, we agreed them with Mr. Corcoran's solicitors and we had them executed and we were sitting ready to finalise."

44.              Ms. White then gave evidence of a letter sent by her secretary (but bearing Ms. White's name) by email on the 8th April 2013 which read as follows: -

"Dear Mr. Corcoran,

As you are aware Judge Roderick Murphy ordered in the High Court on the 14th of March the specific performance of the terms of settlement dated the 11th of October 2009 be executed within 28 days of the 14th day of March 2013.  As you are aware, both plaintiffs being yourself and Mrs. Corcoran of up to and inclusive of the 12th day of April 2013 to complete the purchase of the above property as per the order of the High Court.

I refer to the telephone message I left on your mobile voicemail on the 19th day of March 2013.  On said date I left a full message on your voicemail querying as to what Solicitor, if any, you are nominating to deal with the purchase of the property. 

I further refer to our telecon on the 21st of March 2013 whereby you instructed me that you had already inserted a Solicitor to liaise with me.  I queried as to whether it was a Solicitor in Dublin and you confirmed that it was and you instructed me that they would contact me in the 'next few days'. 

Unfortunately, your Solicitor has not contacted me yet.  Accordingly, I rang you again on the 8th April, 2013 to receive the name of your solicitor so that I could contact them directly and progress matters in early course, however, unfortunately you hung up on me.

I would sincerely appreciate if you would furnish to me by return the name of your Solicitor so that matters may be finalised in early course to complete the sale on or before the 12th inst."

45.                Ms. White gave evidence that she was of the view that the Corcorans would close the sale in accordance with the order of Mr. Justice Murphy, but stated that: -

"They never came up with the money to buy."

46.              On the 17th October, 2013 Mr. Roundtree (who is not based in Dublin) wrote in the following terms to Ms. White: -

"I understand I am still acting in relation to the conveyance of this particular property and apparently this purchase is to go ahead. 

Can you therefore arrange for Mr. Corcoran and his estate agent to view the property on Friday the 8th November for approximately three to four hours from 12am to 4pm."

47.              Ms. White responded on the 24th October, stating that she needed to get instructions from her client.  On the 12th November, 2013 she wrote to Mr. Roundtree as follows: -

"I acknowledge receipt of your letter of the 17th ultimo.  I have taken instructions and prior to my client progressing this matter would require the following:

(1)        Comprehensive proof of funds being furnished by your client proving their ability to complete the purchase of this property.

(2)        We require clarification as to what your client intends to do now i.e., complete the purchase and then sell the property on or what is your client's intention in this regard as we note from your letter of the 17th ultimo that your client wishes their Estate Agent to view the property."

48.              Ms. White explained the second requirement of her client as follows: -

"Believe it or not, it came to our attention at one point that Mr. Corcoran put the property up for sale through an auctioneer in the Delgany area and we got on to the auctioneer and said 'what's happening?'.  So we want to know was he going to complete and pay us our money and we could eventually finish, or was he advertising the property, getting someone else to jump in and buy it.  You know the property was with NAMA, so obviously when NAMA owned the property, they weren't happy that a purchaser who hadn't completed put the property up for sale..."

49.              Ms. White explained that her reference to NAMA owning the property was a reflection of NAMA being the mortgagee in possession, having appointed a receiver to dispose of the property. 

50.              On the 3rd January, 2014 Mr. Rountree wrote to Ms. White as follows: -

"We refer to previous correspondence herein. 

Our clients are anxious to complete this matter and we would be grateful if you could confirm your readiness to do so.

The balance purchase monies due to you are to be paid by the set-off of the judgment against your clients in the matter of McHenry v Eassda and Jackson as our client has acquired this judgment.  As you would be aware this judgment was obtained in the sum of €1,050,000 in 2008, which with court interest at 8% now amounts to over €1.4M (in excess of the sum required to complete the present purchase). 

We would be grateful to hear from you as a matter of urgency as our clients are anxious that this matter should be concluded."

51.              On the 26th February, 2014, Mr. Roundtree wrote again referring to his previous letter; (though he mentioned the 3rd inst.) and sought a reply.  On the 26th February, 2014 Mr. Roundtree wrote in the following terms to Ms. White (addressing her as "Grainne"): -

"Come on write to me and give me a laugh!"

52.              Ms. White's description of this correspondence was that she thought that the proposal was "absurd".  She went on: -

"I probably did ring [Mr. Roundtree] and tell [him] his client was hallucinating if he thought NAMA was going to take the set-off off a judgment, and that I wasn't even going to bother putting it to them because they were owed a lot of money and had to be paid."

53.              Ms. White stated that ultimately she did seek instructions from her client and that "nobody was entertaining it and nobody wanted to waste time, energy or legal fees on it because it was nothing short of ridiculous."

54.              Finally, Ms. White gave direct evidence about being physically threatened by Mr. Corcoran, and being the subject of complaints by him, notably that she had perpetrated a fraud "by agreeing to adjourn a hearing date and then acting in bad faith...".  Ms. White also gave evidence that she had been accused of "requesting Dennis Handy to falsify the Certificate of Completion", and of falsifying booklets of pleadings.  Ms. White denied all of these allegations.

55.              At the end of her direct evidence,  Ms. White dealt with an allegation at para. 57 of the amended defence and counterclaim of the Corcorans to the effect that she didn't want to close the sale because she no longer held the deposit monies in her client account.  She gave this evidence: -

"Homebond was in place and when Homebond was in place on the site, Homebond covered the deposit and the contract specifically authorised the release of the deposit to the Bank/the builder.  So he often raised that, but that was standard procedure in '06, '07, '08 and, indeed, now.  If Homebond is in place, the deposit is released to the builder or the Bank, whatever is agreed at the time."

56.              Under cross-examination by Mr. Corcoran, Ms. White was asked about the implementation of the settlement agreement.  In particular, she was asked about correspondence from Mr. Roundtree complaining that Mr. Handy "has not been given a full copy of the settlement".  It was then put to Ms. White that she "then went back to Mr. Handy and changed those instructions and simply asked him - is it not true that you simply asked and produced the snag list and you did not give him the key elements of the Settlement Agreement, which would actually have cost money?"

57.              Ms. White roundly rejected this proposition.  The question was then refined to the following: -

"Is it not true that when the Agreement was made, you agreed the terms of Mr. Handy's engagement with Mr. Jack Roundtree, and you provided it to him.  You then went to Mr. Handy, changed those terms ..."

58.              Again, Ms. White denied this.  She said: -

"I instructed [Mr. Handy] to deal with the matter exactly as per the Settlement Agreement.  I was very careful to ensure he was clear on what needed to be done as per the Settlement Agreement. 

Q.        Could you be clear what needed to be done if he was not provided with a full copy of the Terms of Settlement?

A.        No.  No, there were specific matters in the Terms of Settlement that had nothing to do with Mr. Handy.

Q.        That the list of additional work.  The 21 items list of additional works?

A.        Oh, yes.  No, he definitely got that.

            No, that's exactly what he didn't get.

A.        Well is Mr. Handy going to give evidence?  I genuinely was very careful.

Q.        Mr. Handy is a very aged gentleman at this stage.  I have not been able to contact him."

59.              After that clarification, Ms. White continued: -

"I spent a lot of time and effort ensuring that I directed the Independent Architect exactly as per the settlement terms approved by the Court.  And it was central.  The list of items to be completed was central.  It is inconceivable I did not sanction that."

60.              Much of the cross-examination on Ms. White operated on the proposition that Mr. Handy had not issued any certificate of practical completion.   Equally, Ms. White was pressed by Mr. Corcoran about the adequacy of the Bank funding.  A facility letter from Bank of Ireland was put to Ms. White which provided funding of €35,000 "to part fund completion of the 'snag list' relating to property number 6."  It was put to Ms. White that this was inadequate even to deal with one item (the pebble dashing) but Ms. White responded by speculating that there may well have been "a second or third loan approval."  The reference in the facility letter to the part funding of the completion of the snag list may support that proposition.  In any event, compliance with the terms of settlement has already been comprehensively dealt with by Mr. Justice Murphy, in a judgment which was never appealed.  Mr. Corcoran also pressed Ms. White on her averment on affidavit that the lis pendens registered by the Corcorans had been against the entire site, and not just number 6.  She was asked whether she had exhibited evidence that the lis pendens was registered against the entire site.  Ms. White answered: -

"But you are the only party that had it.  It would only - I can't - if you, if you don't give me a copy, I can't exhibit the lis pendens.  You go into the High Court, you lodged it.  I can't write to the High Court and look for a copy of it. You gave it to me.  But I think we discovered this by accident when we went to sell.  I can't recall, but I think we discovered this by accident.  You never gave me a copy of it.  And, in fairness, Judge Laffoy appeared to have been confused, did it affect the site or just the house."

Mr. Corcoran did not persist with this line of cross-examination.  In my view, nothing turns on it. 

61.              Ms. White was then cross-examined about why the Corcorans had to motion her to obtain her defence in proceedings 2020/4363P.  Again, nothing turns on this. 

62.              It was then put to Ms. White that she had agreed an adjournment of a hearing in these proceedings, and then reneged on that agreement.  Mr. Corcoran put to Ms. White an email in which the alleged agreement to adjourn was described. This line of cross examination was further developed later; I will deal with it in due course.

63.              It was then put to Ms. White that she was in some way misleading the court by not informing Mr. Justice Murphy that Mr. Stapleton was a statutory receiver, to which she replied: -

"As far as I was concerned, Mr. Stapleton was the receiver, whether he was statutory or some other type, he was the receiver appointed under the mortgage by NAMA to deal with the matter."

64.              Mr. Corcoran proceeded to say that Mr. Justice Murphy was also misled in that it was "represented to the court that Peter Stapleton was not in possession of the property..." ; Page 47 of Day 2.  "When I pointed out to Mr. Corcoran that nowhere in the Transcript was Mr. Stapleton referred to at all, Mr. Corcoran withdrew the question."

65.              Ms. White was then cross-examined about whether Mr. Handy's invoices had been paid.  When asked about the relevance of this issue, Mr. Corcoran replied (at Page 52): -

"Because she said he was paid and he is saying that he wasn't paid."

66.              Ms. White gave the following evidence: -

"Could I just clarify? There were interim payments.  Not everything got paid immediately.  But Mr. Stapleton ensured everyone was paid in full."

This evidence was not seriously challenged by Mr. Corcoran. 

67.              On the question of the power of attorney from Mr. Jackson in favour of Ms. White, described by Mr. Corcoran as "... the key issue on which she can only give evidence..." it was put to Ms. White that she never replied to correspondence from Mr. Corcoran about the power of attorney.  Ms. White accepted this was so, as she had replied to correspondence from Mr. Roundtree to the effect that "if [she] did sign under a power of attorney then [she] most certainly had a clear and valid power of attorney." Importantly, it was not then put to Ms. White that Mr. Roundtree had sent no such letter to her. This is despite the fact that Mr. Roundtree was (some days later) to give evidence to that effect. Throughout this line of questioning, Ms. White staunchly maintained that she had had a power of attorney at the time.  She explained again why this was in place, namely because Mr. Jackson "could be anywhere", and explained the file retention policy of her firm.  On the scope of the power of attorney, Ms. White gave this important evidence: -

"Bank of Ireland would have had one of the large commercial firms in Dublin acting on their behalf in advancing this loan, and there is no way it would have been accepted, unless a comprehensive valid power of attorney was furnished.  Mr. Jackson never disputed that it was signed under the power of attorney as authorised by him."

68.              Ms. White was then asked about a facility letter addressed to Alastair Jackson dated the 9th February, 2007.  Three sums were advanced.  One for €1,700,000, the second for €7,875,000 and the third for €125,000.  The purpose for the first facility was: -

"To bridge funds owed following dispute with builders of 'Glenair Manor' development on Priory Road, Delgany, County Wicklow."

69.              Mr. Corcoran put it that the €1,700,000 "was provided directly to Willow Court Homes - sorry.  It was provided directly to Eassda, and the other two loans, the other two facilities related to here relate to facilities provided to Eassda Ireland Limited...".  In making this contention, Mr. Corcoran also relied upon the fact that the reason for the second facility was "to assist with the refinancing of ACC Bank debt with an additional €1,255,000 to assist with the completion of 'Glenair Manor' development on Priory Road, Delgany, County Wicklow" and that the third sum was advanced in respect of a performance bond lodged by Eassda with Wicklow County Council - as Mr. Corcoran put it at p. 65 of Day 2. 

70.              This characterisation of the loans advanced on foot of the facility letter led to the following proposition: -

"Since these three facilities related to Eassda Ireland Limited, does the power of attorney, or did the power of attorney that you had at the time from Alastair Jackson, granted the power to secure his property for third party mortgages and facilities?"

71.              Ms. White's evidence, unsurprisingly, was that the loan approval was in the name of Mr. Jackson.  The site was in Mr. Jackson's name, and the power of attorney was for Mr. Jackson personally.  The mortgage was also in the personal name of Alastair Jackson.  In response to this evidence, Mr. Corcoran advanced the proposition that the facility letter gave Mr. Jackson's address as 745 Antrim Road, Templepatrick, County Antrim, when that in fact was the address of Eassda Ireland Limited. On this issue, I find Mr. Corcoran's contention unstatable. Whether or not the monies were made available to Eassda, they were borrowings in Mr. Jackson's name and he is liable for them.

72.              Ms. White also gave evidence that most of the borrowings in relation to finances were in Mr. Jackson's own name, and very few were in the name of any corporate entity owned or controlled by him.

73.              Ms. White accepted that the power of attorney would be expected to travel with the security documents, but added that the bank in making the original loan would not have done so without either the original or a certified copy of the power of attorney.  The borrowings, she stated "were too big for anyone taking a chance on it."  She also made the point that the sale of other houses had occurred on foot of the mortgage and the deed of appointment of the receiver, and that "the various solicitors who bought the other sites were happy that it was a valid and a validly signed mortgage."

74.              Ms. White was then cross-examined about deposits and property transactions being held by the solicitor as stakeholder.  Ms. White's evidence was that the contractual arrangements stipulated that the deposit could be released given that Homebond covered the site and the house built on it.

75.              On the issue of the order of Murphy J., Ms. White denied that there had been any obligation to produce a certificate of completion of the terms of settlement, but stated that the certificate of practical completion was forthcoming from Mr. Handy.

76.              On the question of Mr. Corcoran's interaction with Ms. White she stated: -

"There was a run of the mill motion, or the date was for mention, and I think it was in front of Judge Mary Laffoy and there was something very minor that took five or ten minutes.  You were there.  I didn't have any barrister on the day.  It was a minor matter.  And I said something to the court - I can't even remember, but I remember thinking it wasn't that remarkable.  And then I went outside the court and you threatened me after what I said and accused me of lying and, yes, you put your fist in my face, and a couple of people around got a little bit alarmed.  I clearly remember it."

77.              Of the complaints made by Mr. Corcoran to the Law Society against Ms. White, she accepted that as he was not her client the Law Society did not take seisin of the matter.  Nonetheless, she maintained that Mr. Corcoran had tried to complain about her "and they stopped you."

78.              On the insolvency of Mr. Jackson, the insolvency of Eassda Ireland Limited, and the disqualification of the directors of that company (according to Mr. Corcoran, in December 2014 in the High Court in Belfast), Ms. White stated  that she wasn't aware of these facts at the relevant time.  Ms. White nonetheless denied that the reason why the Corcorans never got into the house in Delgany was because of the receivership of Eassda.  She reiterated that she had been in a position to close both contracts in 2013. 

79.              Finally, Mr. Corcoran put to Ms. White the proposition that the set-off in respect of the McHenry Golf judgment "was an offer to close": Page 94 of Day 2.

80.              Ms. White denied that this was a serious effort to complete the purchase and, when pressed on this, said: -

"It was just ridiculous.  The first mortgage on title was NAMA.  The second judgment registered was irrelevant because of the NAMA, the mortgage exceeded the value on the site.  It was absolutely ridiculous to put to us, or NAMA, that you would pay for the house by writing off a judgment you bought for probably very little because it was a futile judgment."

The very last theme explored by Mr. Corcoran, in his initial cross-examination of Ms. White, was her representation of Mr. Stapleton.  Her evidence was that she continued to act for Mr. Stapleton after the Project Eagle sale to Promontoria was completed, but "there was very little engagement". 

81.              In re-examination, Ms. White dealt with the question of the retention of the deposit.  Clause 20 of the Contract of Sale of the property provides: -

"20.     In the event that the Homebond stage payment bond is furnished by the Vendor (the contractor in the Building Agreement) to the Purchaser (Employer in the Building Agreement) the deposit paid herein shall not be retained by the Vendor's solicitor as stakeholder but should be released to the Vendor."

Ms. White conferred that she relied upon that provision in releasing the deposit to the vendors. 

82.              Mr. Corcoran was then permitted to resume his cross-examination of Ms. White on two distinct issues for which he had not been prepared during his initial cross-examination.  The first of these was the Handy Certificate, which he maintained was not a certificate of practical completion but related only to snagging items.  Ms. White replies that this had been considered by Mr. Justice Murphy, and that the Certificate provided by Mr. Handy clearly stated that: -

"It is my opinion that the work in constructing the house has achieved practical completion."

83.              Mr. Corcoran responded: -

"The issue, and I put it to you, Ms. White, is that this is not a certificate that the terms of settlement had been complied with, and that is exactly what Justice Murphy directed be completed in the order for specific performance."

84.              Ms. White's reply, with which I obviously agree given the view I have formed about the Murphy judgment, was: -

"Mr. Handy was never, ever, ever to certify the terms of settlement had been completed.  That was never for him to do.  He had to simply certify practical completion of the house which he did.  He referred to probably the last snag list.  He issued - there were various interim inspections, he produced a snag list, the builder dealt with it, and he referred to the last one ... and Judge Murphy accepted this as a valid certificate of practical completion and compliance with the 2009 settlement."

85.              Finally, Mr. Corcoran returned to his contention that Ms. White had reneged on an agreement to adjourn the proceedings at some point in time.  Ms. White accepted, notwithstanding a plea in her defence, that she could not find any record of a telephone conversation with Mr. Corcoran about the adjournment of the hearing.  Ms. White denied that she had agreed to adjourn the hearing, and that she would have had to take instructions from Mr. Stapleton on that issue.  Mr. Corcoran maintained that the Registrar (Ms. Healy) "sorted out the matter...".  Ms. White replied: -

"I wouldn't have thought that it was the Registrar that would do that, and make that decision on foot of an email from Mr. Corcoran."

On this issue, it is impossible to decide in favour of Mr. Corcoran's account of events. It is very unlikely that an experienced Registrar such as Ms. Healy would take it upon herself to sort out a dispute about whether or not a matter would be adjourned. That alone makes Mr. Corcoran's narrative difficult to accept. I should add that this dispute echoes other, less comprehensible, allegations made by Mr. Corcoran about the manipulation of official court documents which I will consider later in this judgment.

86.              Mr. Corcoran completed his cross-examination of Ms. White by putting to her that the building agreement did not appear to have a clause enabling the deposit to be released.  Her answer was: -

"The two contracts, it would have been a standard procedure at the time, and indeed now, you'd have a contract for the site and a building agreement to build the house [Ms. White then set out Clause 20] - and the two agreements were interlinked.  You couldn't buy the site and not have the house built.  You couldn't have the house built without buying the site.  The two are interlinked. ... So I would say the contract with the two documents linked covers both."  

When Mr. Corcoran pointed out that the parties were different (Mr. Jackson the Vendor on one, as opposed to the company which was the builder on the other).  Ms. White reiterated her view that the two contracts were interlinked.  Mr. Corcoran did not press the matter. 

87.              Mr. Peter Stapleton, the statutory receiver appointed by NAMA, then gave evidence.  Mr. Stapleton's evidence was that the Murphy judgment had cleared the way for the sale to close and, if it did not close, for the property to be marketed.  In referring to communication from Mr. Corcoran in January 2016, and Mr. Stapleton referring Mr. Corcoran on to Mr. Fennell,  Mr. Stapleton explained that the loan had been sold to Promontoria and that his receivership then came to an end.  Mr. Stapleton also gave evidence about a form lodged with the Companies Office in Northern Ireland headed "Notice of Ceasing to Act as an Administrative Receiver, Receiver or Manager".  The form was signed by him, but prepared and lodged by his "retained tax consultants". 

88.              Mr. Stapleton gave evidence of his Deed of Appointment by NAMA on the 6th March, 2012, and his acceptance of that appointment.  The mortgage debenture of the 20th April, 2004 between Keygo Properties Limited and Irish Nationwide Building Society is stated (in the Schedule) to provide a charge over: -

"All that and those the hereditaments and premises situate at Ballyminion, County Longford being part of the property comprised within Folios 2828F and 9386 County Longford as is more particularly described in a Deed of Conveyance dated the 20th day of April 2004 between Michael Woodcock of the one part and Keygo Properties Limited of the other part and delineated and edged red on the map annexed thereto together with the benefit of all easements, rights and privileges which are specified therein and a first Floating Charge over all the book debts, undertaking on property and assets of the company whatsoever and wheresoever both present and future."

89.              Mr. Stapleton's evidence was that his appointment was not confined to the Ballyminion property, but rather over all of the other assets listed in the latter part of the Schedule. 

90.              On the proceedings initiated in 2020 by the Corcorans against Mr. Stapleton, he gave evidence that he first learned of the fact that the Corcorans were alleging fraud against him a week or so before the trial began.  He said: -

"Well, what I mean is from the time that I was appointed receiver on this estate, I had a reasonably straightforward position in relation to numbers 8 and 9 Glenair Manor and certain works which I carried under the Estate to complete it, and then we had a sale of 8 and 9, which were relatively straightforward.  But No. 6, I knew that there were lengthy proceedings.  So in that context, I knew that this wasn't a happy position and that it seemed to me that for a fairly straightforward property that this sale should have been completed a long time ago, and to see it still here today is just highly unusual.  Highly unusual.  So the suggestion that I would be involved in some fraud is just, just ... it's so shocking, I can tell you."

91.              With regard to the allegation that Mr. Stapleton breached the order of Mr. Justice Murphy, he denied this and stated "All we had to do was to close the sale."

92.              Asked about the property at Whitfield Court, Kilmeaden, County Waterford, Mr. Stapleton confirmed that he was the receiver appointed in respect of that property but that the only possible connection between the current proceedings and Whitfield was "that they were both subject to court proceedings."  Other than that, they were wholly unrelated.

93.              Mr. Stapleton gave evidence of a letter sent to him by Mr. Corcoran on the 20th July, 2012.  In that, Mr. Corcoran made the following proposal: -

"I'm willing to offer to pay the 'builder fix' value of the property less the contract allowances and contract items that are not completed.  I'm willing to enter discussions also on the basis that I will not be seeking my full legal costs for the original hearing of the case which amounted to €196,000."

94.              The "builder fix" value was set out by Mr. Corcoran earlier in this letter at €800,000.  As to the potential waiver of costs by the Corcorans in respect of the original hearing (presumably before Mr. Justice Murphy), it will be remembered that the Corcorans were refused their costs of that hearing. 

95.              Mr. Corcoran's cross-examination of Mr. Stapleton began with Mr. Stapleton's appointment as statutory receiver.  Mr. Stapleton accepted that he was a statutory receiver, but after repeated questioning about whether or not he had taken possession of the property Mr. Stapleton said that he did not believe he ever had the keys to No. 6.  He did, however, accept that he was "a statutory receiver in possession of 6, 8 and 9". 

96.              Mr. Stapleton accepted that, notwithstanding his earlier evidence, he was not appointed as statutory receiver over the common areas in the Glenair Manor estate.  Mr. Stapleton also accepted that numbers 8 and 9 Glenair Manor had been sold in March 2014, prior to the Project Eagle transaction.  Mr. Corcoran then put to Mr. Stapleton correspondence to Damhnit McGuire from John Crean, solicitor at NAMA.  The letter (dated the 27th November, 2013) states: -

"We further understand that certain contractors were commissioned by Mr. Stapleton (acting as statutory receiver) to complete the 'taking in charge' works, and that Noel Larkin Associates will verify and certify payments due to these contractors.

On the basis of the above, we believe these works could and should have been commissioned directly by Wicklow County Council and paid for by Wicklow County Council using the €105,000 [bond]."

97.              While Mr. Stapleton did not have a clear recollection of the event, he did remember that Wicklow County Council had wanted this work done and that it was possible that the purchasers of 8 and 9 would have insisted that the estate be taken in charge before they would close the purchases of those properties.  While this line of examination of Mr. Stapleton was done in order to highlight the fact that Mr. Stapleton was not, in fact, appointed as a receiver over the common areas it nonetheless is evidence of great significance when I come to consider, at the end of this judgment, the motion to appoint a receiver over the open space on the estate.

98.              Mr. Stapleton was then asked questions about his ability to give up possession of the property when he ceased to act as receiver, by reference to the NAMA Act. 

99.              Mr. Stapleton accepted that his notice of intention to resign and ceasing to act dated the 15th January, 2021 was a formal letter sent quite possibly at the request of A&L Goodbody. 

100.          Mr. Stapleton accepted that he had resigned as receiver in respect of Eassda on the 2nd December 2015, some year and a half after the sale of the securities to Promontoria, though he maintained that "in practical terms" his appointment as receiver to Eassda Ireland Limited ended with the sale to Promontoria of the securities connected with that company.

101.          On Whitfield Court, Mr. Stapleton was asked whether or not he had represented himself to the Court of Appeal as the statutory receiver, to which Mr. Stapleton's response was that he would not have been physically engaged in the hearing in the Court of Appeal and did not recall physically attending at the High Court, and the question was beyond his knowledge.  While Mr. Corcoran wanted to put to Mr. Stapleton the proposition that the latter had continued to act as statutory receiver after the sale of securities to Promontoria, the document to support this proposition was not available to him at that time.

102.          The cross examination of Mr. Stapleton resumed on day 6 of the hearing.  Mr. Stapleton did not finish his evidence on the day he was called, as Mr. Corcoran wished to put certain documentation to him which he was not in a position to do at the end of Day 2.  The first topic put to Mr. Stapleton on his resumed cross examination related to the Gleann Riada Estate, Ballyminion, County Longford.  In that estate, Mr. Stapleton was appointed receiver by Promontoria after the Project Eagle sale.  Mr. Stapleton gave evidence that, having been appointed statutory receiver in respect of this asset by NAMA, he was not removed as receiver by Promontoria prior to his subsequent appointment in 2015 as receiver by that entity.

103.           Mr. Stapleton gave evidence that, sometime after the Project Eagle sale, he was still in communication with Mr. Roundtree in connection with the sale of 6 Glenair Manor, and asserted that it was his responsibility as he had signed the contract for No. 6 prior to the sale of the securities by NALM to Promontoria.  This contact included an email of the 25th of November 2014, some five months after the Project Eagle sale.

104.           Thirdly, Mr. Stapleton was asked about the entirely separate case of Sheedy v. Jackson, in connection with the Whitfield Court property.  This questioning concluded with the following lengthy proposition: -

"So here was a gentleman in Australia registering a company in the name of a property he had expressed an interest in, in June 2016.  And I put it to you that this is the reason why you issued a - this is why you got into a dispute with Mr. Sheehy,  because as far as I can check - and I'll just arrive at the date - he didn't sign a contract until after that date.  Sorry, the contract was executed was on 7th August 2015.  This is the date of the contract with Mr. Sheehy.  But your rescission notice was not served until after that date in June - I find it now - which the whole case was about.  I believe it was early 2017.  Sorry, Judge, I didn't mark that actually.  The point I'm making, Judge, is that that company registered at prior to the rescission notice being actually served, which is the whole cause of the proceeding."

105.           These series of propositions, whether or not any of them are accurate, had absolutely nothing to do with the case that I was trying.  When this point was made to Mr. Corcoran, he resiled from his line of cross examination.  However, the fact that such propositions were agitated in a case which was already complicated was profoundly unhelpful.  Unscrambling the relevant from the irrelevant in the evidence presented to the court has been a challenging and difficult proposition, and not always resolved as easily as this line of cross examination was put to bed. 

106.           The fourth and final proposition put to Mr. Stapleton on his resumed cross examination related to the registration in the Companies Office of Mr. Fennell as receiver over the Longford lands.  This line of cross examination concluded with the following proposition: -

"All I'm asking you, as a professional who has been involved in dealing in land for the last 25 years, that if someone is claiming to be appointed over Folios, in this case two specific folios, would you presume the chargor, in this case Promontoria, would be registered or mentioned in some way on those Folios?"

107.          Mr. Stapleton's understandable response was: -

"Well, I would.  But I'm not a legal expert ... so I can't comment."  

108.          On re-examination, Mr. Stapleton clarified that he had not been removed by Promontoria as receiver to the properties involved in these proceedings as he was not appointed by that entity.  In the case involving Whitfield Manor, he was so appointed.  In relation to an abstract of receipts and payments in respect of the Eassda Receivership, Mr. Stapleton identified his signature and the date of 13th May 2015 on the document.  He then commented that the document appeared to cover the period September 2015 to December 2015 and that this "could not be correct."  This concluded the evidence of Mr. Stapleton.

109.          The third witness called on behalf of the Promontoria interests was Jonathan Hanly.  Mr. Hanly was a director of Promontoria Eagle Limited from April 2014 to May 2017.  Mr. Hanly identified the loan sale agreement between NALM and Promontoria Eagle, and a Global Assignment Agreement between the same parties.  Despite the fact he did not execute the documents, he was familiar with the execution of the documents.  The loan sale agreement, was, as he put it, effectively a contract.  The Global Assignment Agreement was the operative document transferring ownership of the loans and security.  The director of Promontoria Eagle Limited who had executed the loan sale agreement had suffered a bereavement the week before the evidence of Mr. Hanly was given.  To his credit, Mr. Corcoran has not contested the ability of Mr. Hanly to give this evidence. 

110.            As is often the case with such documents, they were heavily redacted.  Mr. Hanly explained that this was because of the need to retain confidentiality, in particular with regard to the amount paid for the loans and attendant securities. He identified "Connection 153" as Alastair Jackson and Eassda.   The facility letters in respect of the money advanced included the facility letters between INBS and Eassda Ireland Limited.   The securities included properties at Gleann Riada, Ballyminion, County Longford.  His conclusion was that Promontoria acquired legal and beneficial title to the portfolio of assets, including the loan facilities and all security, in respect of the Eassda mortgage of 20th April 2004. 

111.          With regard to Mr. Jackson, Mr. Hanly identified that the original lender was "the Governor and Company of the Bank of Ireland".  The arranged facility letters were listed, and that No. 7 on that list was the facility of 9th February 2007. 

112.          Mr. Hanly gave evidence that Promontoria had not delivered a demand in respect of Mr. Jackson, but that NALM had done so in respect of the relevant Bank of Ireland facility. 

113.          Mr. Hanly also identified a number of facilities for smaller amounts. 

114.          Mr. Hanly then identified a deed of mortgage and charge for 23rd February 2007 in favour of the Bank of Ireland, and a hand written notation that the document was registered in the Registry of Deeds in March 2007. 

115.          Mr. Hanly gave evidence that the reference under the heading: - " Republic of Ireland: Unregistered property - non top 55 assets" to 8, 9 and 10 Glenair Manor, Delgany is an error and that the data room had not been updated at the time of the transfer to Promontoria.   He expressed the view that this was of no consequence in terms of the transfer of the loans and security from NALM.  He said there would have potentially been an amendment to the actual purchase price "to reflect any minor issues that arose...".

116.          Mr. Hanly then identified the documents that appointed Mr Fennell as receiver of Promontoria Eagle Limited; though he did not sign it, he recognised the signature of Ms. McCrave.  Ms. McCrave is the witness who was unable to give evidence at the trial.

117.          With regard to the deeds appointing Mr. Fennell, Mr. Hanly gave general evidence that the appointer would typically sign the documents and they would then be countersigned by the receiver.  The documents would typically all be dated on the date they were signed by the receiver as opposed to the date of the initial signature by Promontoria Eagle Limited or some similar company. 

118.          Finaly, in his direct evidence, Mr. Hanly confirmed that the total indebtedness of Mr. Jackson to Promontoria Eagle Limited as of April 2012 was in the region of €224,000,000, as set out in the Proof of Debt form lodged with the Bankruptcy Court in Northern Ireland. 

119.          Mr Hanly was cross-examined by Mr. Corcoran.  Asked about the execution page of the debenture between INBS and Eassda (formerly Keygo) Mr. Hanly confirmed there was no execution page by Eassda.  Mr. Hanly also accepted that there was no list of stock or debts which Mr. Corcoran maintained was to be provided to the mortgagee pursuant to clause 8.B of the Mortgage Debenture. 

120.          Mr. Hanly confirmed that Promontoria had not removed Mr. Stapleton from his position as receiver.   

121.          Mr. Corcoran then put to Mr. Hanly a printout of the UK Companies Act 2006, with regard to the registration and enforcement of security, the RM 101 document (in Northern Ireland) in respect of Mr. Fennell's appointment as receiver, and a further printout from the Companies Office Registry in Northern Ireland recording three insolvency cases related to Eassda Ireland Limited.   This led to the following questions: -

"I put it to you that the reason for that is because he failed to lodge the said document, which we have just gone through there, which the document registering his appointment, and he waited fifteen or sixteen months before doing so, and under 859K of the UK Companies Act, he is required to register that within seven days and, therefore, that document is invalid ..."

122.           Mr. Hanly was unable to give any relevant evidence to these propositions.  The first proposition was a factual one, on which he was unable to comment.  The second, more importantly, was a proposition about the validity of Mr. Fennell's appointment.  Mr. Hanly was not able to give any evidence about that, because he is not a lawyer in Northern Ireland. 

123.            The second line of questioning from these documents was: -

"Sorry, the point for this, and the question I am going to ask you is: Do you think it unreasonable of Mr. Fennell if he was - if he considers himself appointed over all the - now I'm going to put this question to Mr. Fennell, obviously - over all of the assets of the company, to actually record that, to fail to record that in the Companies Office in Northern Ireland Companies House."

124.           Mr. Hanly, absolutely understandably, had no view on these propositions. 

125.          On a number of separate matters, Mr. Hanly did not recall seeing a specific note of crystallisation in the files and could not express a view one way or another as to whether there had been an event of crystallisation, that he did not see a deed of novation on the files, transferring the building contract from Mr. Stapleton to Mr. Fennell or to Promontoria, and that he could not comment on the allegation that Eassda (being dissolved) no longer existed.  When asked about the amount owed by Eassda over time, Mr. Hanly was not able to identify any difference at any particular stage.  He accepted in principle that amounts can change with the charging of interest or the making of repayments but stated that he didn't know the detail in respect of Eassda.  With regard to the power of attorney referred to by Ms. White, Mr. Hanly was unable to give any evidence as to whether a certified copy of that document travelled with the mortgage.  Mr. Hanly was then asked about the Project Eagle transaction and a particular proposition was put to him that "a group of problematic loans was transferred for free as part of Project Eagle"; p.59 of  Day 3.  Mr. Hanly was unable to give any evidence relevant to this issue, not because of any evasiveness on his part but simply because of a lack of knowledge of the matters that were put to him.  However, Mr. Corcoran did suggest that there had been a fabrication of documents, using the following form of words: -

"so the point is that they couldn't as - and I'll come back to the actual technical details of the deeds.  They are not - the effect is they couldn't have been prepared as part of Project Eagle, those transfers.  By assertion, if I can use that word, is that they - the reason why the wrong date was put on it was that it was fabricated incorrectly the first time."

126.          Mr. Hanly described himself as "shocked" at the allegation of fabrication or, as I termed it, fraud. 

127.          The fabrication relates to the Deed of Assurance of Mortgage between NALM and Promontoria Eagle Limited.  Mr. Hanly accepted that the two documents were not copies of each other and that there were differences in terms of the placement of the signature appended on behalf of NALM.  This very serious issue was put in greater detail to a more appropriate witness, Mr. Mark Traynor of A&L Goodbody.  I will return to it in detail when construing his evidence.

128.          Mr. Hanly was then asked to consider s.108 of the NAMA Act.  Naturally, he had nothing to say about that legal provision.  He was asked then whether there was a NAMA seal on either of the Deeds of Assurance.  He said he could not see one but that he could not be absolutely certain. 

129.          Finally, Mr. Hanly was asked about the Promontoria Eagle accounts for the calendar year 2016.  The question related to the following note in the accounts: -

"90.1% of the value of the financial assets of the Company derives its value from properties that are secured on assets outside of the Republic of Ireland as at 31st December 2013."

130.          Asked to explain this entry, Mr. Hanly simply paraphrased it as the meaning of the note is quite clear. 

131.          On re-examination, Mr. Hanly confirmed that he had not signed the 2016 accounts as he was no longer a director of the relevant company at the time. 

132.          The fourth witness called on behalf of the Promontoria interest was Donal O'Sullivan, director of Promontoria Eagle Limited since February 2017. 

133.          At the start of his direct evidence, Mr. O'Sullivan was informed that Mr. Corcoran had claimed that the accounts of Promontoria Eagle Limited suggest that the company "has not owned any mortgage related to any Irish property since December 2017."

134.          Mr. O'Sullivan first addressed the accounts for the year 2016, by reference to the note to the accounts that was put to Mr. Hanly.  His evidence was that 90.1% of the financial assets relating to loans/security were located outside of the Republic of Ireland, and the remaining 9.9% "...would have related to loans/security which were held in the Republic of Ireland."

135.           For the 2017 accounts, the note read: -

"100% of the value of financial assets of the company derives its value from properties that are secured on assets outside of the Republic of Ireland."

136.           Mr. O'Sullivan gave evidence that this related to "the value of the cashflows that would be expected to be generated in those particular securities and loans."

137.           He went on to say that at the time the accounts were prepared "the company did not place any value on that particular asset."

138.          For the 2019 accounts, signed by Mr. O'Sullivan on 1st December 2020, 79.2% of the value of the financial assets were held outside the Republic of Ireland as opposed to 100% the previous year.  On this, Mr. O'Sullivan said: -

"it is simply the case that the advisers, and Pricewaterhouse Coopers as the auditors would have agreed with that assessment, that some value could now be attributed to a property which was located in the Republic of Ireland, and as a result the percentage in terms of the overall value of financial assets held on the balance sheet would have changed from 100% the previous year to 79% now."

139.           Finally, Mr. O'Sullivan stated that Promontoria Eagle had never actually owned 6 Glenair Manor, but simply had the benefit of the mortgage.

140.          Under cross examination by Mr. Corcoran, when asked if he had found a power of attorney in the documents (or any reference to a power of attorney) Mr. O'Sullivan said he had not looked for one.  Mr. Corcoran then asked Mr. O'Sullivan about the 2021 accounts which included this statement: -

"At 31st December 2021 there were two loans still outstanding."

141.           Mr. O'Sullivan said that this was a reference to connections, that one was the Alastair Jackson connection, and confirmed that Mr. Jackson's loans were still considered outstanding.  It was put to Mr. O'Sullivan that the outstanding loans on the 2019 set of accounts were somewhat less that €1,000,000.  Mr. O'Sullivan responded that the actual figure (€986,465) was the book value of the total amount of loans.  The actual amount of loans outstanding was in the hundreds of millions. 

142.           Taking the total value of €986,000, and taking it that the Irish security was "27% odd" as Mr. Corcoran described it, it was put to Mr. O'Sullivan that the value on 6 Glenair Manor was in the region of €250,000.

143.          Mr. O'Sullivan answered that these were two separate issues.  He went on: -

"I mean, on the one hand, you have a value of a property which obviously fluctuates.  On the other hand, the figure that we have here in relation to financial assets is determined by looking at future cash flows, discounting that in terms of looking at exactly what is going to be - having to be dispersed in terms of fees and so on, as in manager fees, loan servicer fees, everything of that nature is taken into account.  And it could also be, Judge, that, for example, legal fees in relation to securing possession of the asset would also be taken to into account in that regard as well. So it's not the same as the actual value of the property, if that's what you're seeking to ascertain.  It's a totally different figure from an accounting point of view."

144.            When asked, Mr. O'Sullivan estimated €1,000,000 as the value placed on 6 Glenair Manor.  It was put to Mr. O'Sullivan that 7 Glenair Manor was sold some six months beforehand for €2.3million.  Mr. O'Sullivan suggested that he would look at any uplift in valuations in the general neighbourhood.

145.          Mr. Mark Traynor, a partner in A&L Goodbody, then gave evidence for the Promontoria interest.  On the Project Eagle transaction, he stated that Hogan Lovells were the lead lawyers on behalf of NAMA with McCann Fitzgerald acting in respect of Irish Law specific issues on the sale transaction.  Hogan Lovells is a UK firm.  Linklaters were the lead lawyers for Promontoria Eagle Limited.  A&L Goodbody assisted Linklaters in respect of Irish law issues.  Brown Rudnick had initially been retained when bids were being put in for the Project Eagle book, but did not become involved in the actual sale transaction once Promontoria Eagle succeeded in bidding for the loans and securities.

146.          On the Deeds of Assurance of Mortgage, Mr. Traynor's evidence was that a template document had been prepared by Hogan Lovells, and that in respect of Irish law issues A&L Goodbody would take the template and adopt it so that it was suitable for use in Ireland.

147.          Mr. Traynor referred to the specific document with a handwritten date 23rd June 2014.  From the stamp on the margin of the document, he identified it as the Deed of Assurance registered in the Registry of Deeds.  He then identified a second document bearing the date 20th June 2014, which was partially redacted.  This document was exhibited in an affidavit sworn on behalf of the Promontoria interests in July 2020, in response to motions brought by the Corcorans.  Mr. Traynor stated that the two documents were not photocopies of each other.  The signatures were different, as asserted by Mr. Corcoran and accepted by Mr. Hanly in his evidence.  However, with the exception of the dates, the text of the two documents is identical. 

148.          On Mr. Corcoran's assertion that the documents were fabrications, Mr. Traynor's evidence was downright. He stated: -  

"I absolutely say that's false.  There's been complaints made at different times by Mr. Corcoran against Ronan O'Doherty, for instance, to the Law Society, to the Garda.  He then claimed that Mr. O'Doherty had absconded the jurisdiction before the guards could question him, when in fact the position was that Mr. O'Doherty simply left our firm to join another firm overseas, but Mr. Corcoran felt it fit to even contact the managing partner of that firm overseas to indicate to him the complaints made against Mr. O'Doherty.  So, there has been complaints made from the word go.  Not just against Mr. O'Doherty  I should say, against members of the firm, including myself."

Mr. O'Doherty was the solicitor, then in Mr. Traynor's firm, who swore the relevant affidavit.

149.           Mr. Traynor also gave evidence that in January 2021 Mr. O'Doherty had corrected his error in exhibiting the wrong documents, apologised to the court for what he had put on affidavit, and exhibited the correct Deed of Assurance. 

150.           Mr. Traynor then gave evidence about another document which Mr. Corcoran claimed to be a fabrication.  This was a Form 1 Registry of Deeds, prepared by A&L Goodbody.  It is dated 23rd June 2014, and refers to the schedule attached to the Deed of Assurance of 23rd June 2014 about which Mr. Traynor had just given evidence.  He explained it, in this way: -

"This document is effectively the application that you would put with your documents when filing in the Registry of Deeds to get them to register the Deed of Assurance in this case.  So it would be effectively, you know, applying to have these registered within - relating to the properties set out in the schedule."

151.           Counsel then suggested to Mr. Traynor that Mr. Corcoran alleged that this form had been fabricated by A&L Goodbody because a practice direction of the PRAI requires a Form 1 to "also exhibit the original section 108 certificate for any transfer of a mortgage that was formally transferred to NAMA, as in this case."  Mr. Traynor knew nothing about the substance of this allegation.  However, Mr Traynor did give evidence that the schedule to the Deed of Assurance dated 20th June 2014 and the schedule to the Deed of Assurance dated 23rd June 2014 were identical.  It was therefore wrong to say that the Form 1 was fabricated as it referred to the schedule contained in the 20th June 2014 document.  The two schedules are the same.   Mr. Traynor also denied that the A&L Goodbody reference number in the Form 1 supported any allegation of document fabrication.

152.          Mr. Traynor then gave evidence about an email from Mr. Corcoran not only to Mr. Traynor but to four other individuals in A&L Goodbody, Ms. Smith SC, Mr. Downey BL, and another individual.  The email is dated 30th January 2023. It is the email to which I referred at the start of this judgment. The email is stated to be a notice applying to its recipients, and reads: -

"The purpose of this email is to put each of you on formal notice that if there is any repeat of the lies detailed below in the Submissions in the above proceedings (or linked proceedings) or the hearing of the case in April, I'll make complaint against each of you to the LSRA for gross misconduct and demand that you be struck off and not be permitted to ever again practice Law.

I'll use this email to show that each of you were on Notice, that if the lies are repeated, you are doing so deliberately and for the sole and malicious purpose of deceiving the High Court. 

I'd also make a Criminal complaint under the Criminal Justice (Perjury and Related Offences ) Act 2021 if any of the offences detailed in this Act are committed, especially if section 7 is breached. 

For clarity and to make sure, there is no misunderstanding of my intent.  If any of the solicitors or barristers named above repeat any of the lies below, I will hold each and every named individual personally responsible."

153.           There is then a section headed "The Truth" which contains four bullet points.  One of these bullet points relates to Mr. Hanly's certificate of May 2012, and concludes with the following statement: -

"Denis Hanly's certificate did not certify that 'all works' had been completed, as required in the 'Terms of Settlement'."

154.          This flies in the face in the findings of Mr. Justice Murphy and the order which he made.  Another of the bullet points includes the statement that: -

"The mortgage granted by Bank of Ireland in February 2007 to Allister Jackson and secured on the sites in Glenair Manor was not sold to Promontoria Eagle Limited as part of the Project Eagle sale in June 2014."

155.            In fact, as already noted in this judgement, Mr. Hanly gave careful and precise evidence about the fact that the mortgage was transferred to Promontoria as part of the Project Eagle sale.  This evidence was not challenged by Mr. Corcoran.

156.            The final section of the email is headed "The Lies".  One of the alleged falsehoods is stated to be: -

"That Peter Stapleton was appointed as Receiver in February 2012."

157.           Again, the current judgment records that Mr. Stapleton gave evidence about his appointment as receiver, and this was not challenged by Mr. Corcoran in his cross-examination of Mr. Stapleton. We will shortly see what Mr. Corcoran meant by this particular section of the email.

158.          The last of the seven bullet points under this heading reads: -

"The Deed of Assurance of mortgage produced in the affidavit for discovery of Ken Fennell in November 2022 was prepared by A&L Goodbody and not Hogan Lovells and is not valid and was fabricated for the purpose of fraudulently recording the transfer of the mortgage in the Registry of Deeds."

159.           That is the specific issue upon which Mr. Traynor was giving his evidence.

160.           Mr. Corcoran began his cross-examination of Mr. Traynor by reference to the same email.  Mr. Corcoran put it to Mr. Traynor that Mr. Stapleton was appointed as a statutory receiver and therefore "the statement that he was appointed as an ordinary receiver is actually incorrect..."  This may be the point of the judgment at which to observe that a statutory receiver is still a receiver.  It is not a lie to say that Mr. Stapleton was appointed as receiver in February 2012.

161.          Mr. Corcoran then put to Mr. Traynor each of the propositions under the heading "The Lies".  Much of this involved an arm wrestle between the witness and the cross-examiner about legal propositions and, even more frustratingly, about the meaning of phrases used in the documentation.  For example, some small time was spent over Mr. Stapleton's statement that "I have resigned ..." in the context of a document headed "Notice of intention of receiver to resign and cease to act"; there was a debate as to whether this was a statement that Mr. Stapleton had resigned in the past or that he intended to do so on the day of the notice.

162.          With regard to the Form 1 - Registry of Deeds, Mr. Corcoran stated that his position had been mispresented in questions put to Mr. Traynor during his direct evidence.  Mr. Corcoran stated that his actual proposition was as follows: -

"You have specifically already stated that this document, attached could have been the Deed of Assurance of mortgage.  Sorry, yes, the Deed of Assurance of mortgage dated 23rd June.  This document would have been rejected it is my contention, and this is what I actually - the allegation actually made - is that it would not - it would have been rejected if the conveyance of mortgage was not the name of the Deed."

163.           Mr. Traynor disagreed with this proposition, not least because the document was actually registered in the Registry of Deeds.

164.          On the Deed of Assurance, Mr. Traynor was asked where the seal of NAMA appears.  Mr. Traynor's response had been that "It doesn't come up" and that the original Deed of Assurance was lodged in the Registry of Deeds.  This was disputed by Mr. Corcoran, who asserted that Ms. Justice Stack had made an order directing that he be provided with "a high quality original of the Deed...", when in fact a colour copy had been made available to Mr. Corcoran.  When that version was put to Mr. Traynor, he again said that he could not see the NAMA seal on the document.  However, when cross-examined about section 108 of the NAMA Act Mr. Traynor did not accept that the seal of NAMA had to be appended to the Deed of Assurance of Mortgage to be valid.  Section 108 of the NAMA Act reads: -

"NAMA or a NAMA group entity may certify under its seal or common seal, as the case requires, that NAMA or the NAMA group entity holds a bank asset specified in the certificate."

165.          Mr. Traynor, in purporting to give an opinion on the Act, did emphasise the word "may".  Mr. Corcoran then examined Mr. Traynor about the statement made by a Mr. John Collison (of NAMA) in October 2016 to the Public Accounts Committee which was inquiring into Project Eagle.  It was put to Mr. Traynor by Mr. Corcoran that Mr. Collison had stated that all transfer documents were prepared by Hogan Lovells.  Mr. Traynor disputed this, and maintained that: -

"Hogan Lovells, I am saying, Mr. Corcoran, were not involved in any of the registration of Deeds within the Registry of Deeds or the Land Registry."

166.          Mr. Corcoran put to Mr. Traynor that his earlier evidence about the role played by A&L Goodbody (and, indeed, by McCann Fitzgerald) was wrong.  Mr. Traynor rejected this. He said: -

"What I am saying is that A&L Goodbody were responsible for and did file all of the Deeds of Assurance and Form  56 in the Republic of Ireland in respect of the Project Eagle transaction."

167.            In response to this, Mr. Corcoran stated: -

"I am saying to you - and I am asking you a direct question - my ... position is that that Deed of Assurance dated - in relation to this property, should not exist, and not the assertion made by Kelley Smith that another one exists.  My position is that it could not exist and, therefore, I am not denying what you have just said.  I accept what you just said that A&L Goodbody did lodge that document.  But what I'm putting to you is they should not have lodged that document because it should not have existed in the first place and it was invalid - it should not have existed because they could not transfer that particular document because it wasn't a mortgage?"

168.          Mr. Traynor did not accept this proposition.  Mr. Corcoran then referred to an affidavit of Mr. Fennell which was characterised in this way: -

"[Mr. Fennell] actually states that there is no money outstanding, it's not a mortgage, it's a charge..."

169.          In fact, the relevant paragraph in Mr. Fennell's affidavit reads: -

"The mortgage is an all sums mortgage whereby the security provided by the mortgagor will be a continuing security for all sums and all accounts held by Alastair Jackson and Bank of Ireland and, therefore, the mortgage is not linked to any of Alastair Jackson's accounts in particular but is linked with each and all of them."

170.           This was the paragraph identified by Mr. Corcoran as supporting the assertion that he had made to Mr. Traynor.  It plainly does not do so.  Not surprisingly, Mr. Traynor agreed with the paragraph in Mr. Fennell's affidavit.

171.          Mr. Corcoran then continues this line of questioning by stating that during the evidence of Ms. White "We clarified that the facility letter related to this mortgage to Allister Jackson that all three parts of the loans that were provided as part of that were related only to Eassda Ireland Limited."

172.           At this point, I told Mr. Corcoran that I was waiting with interest for the evidence supporting his proposition "that the monies moved directly from Bank of Ireland to Eassda." Mr. Corcoran's response was: -

"That would be impossible to show, Judge."

173.          It is worth pausing at this particularly involved part of Mr. Traynor's cross-examination to note that a number of unlikely propositions were put to him, which ultimately rested on a proposition which Mr. Corcoran accepted that he would never to be able to establish and had no intention of seeking to establish, namely the correct commercial characterisation of the facility letter of the 9th of February 2007.  

174.           Mr. Corcoran then cross-examined Mr. Traynor about the power of attorney referred to by Ms. White.  Mr. Traynor had not seen the power of attorney and did not know whether it should have accompanied the mortgage as part of the sale, but accepted that one would have expected that the power of attorney would have been there when the mortgage from Bank of Ireland went to NAMA.

175.          On the Deeds of Assurance dated respectively the 20th June 2013 and 23rd June 2014, Mr. Traynor and Mr. Corcoran agreed that one was not a photocopy of the other but that they were in substance identical.  Mr Corcoran then advanced this proposition: -

"Neither exist because there couldn't have been a transfer of that mortgage for the reasons stated in several occasions - the power of attorney has not been produced and it's not valid - therefore, it couldn't be sold.  The mortgage itself was an all sums whereby Peter Stapleton has finally admitted that he was in possession of the property.   He is not permitted under the NAMA Act to give up possession.  Therefore they would not have been able to transfer the ownership of a charge because the document now, the mortgage turns out to be a simple charge this is not registered against any particular property - it's an all sums charge and, therefore, this is Deed of Assurance of mortgage, not a Deed of Assurance of charge."

176.           In addition, Mr. Corcoran stated that the fact that Hogan Lovells was to handle all the transfers was "an added cherry on the cake" - as I understand it, this refers back to the contention that the Deed of Assurance of mortgage was not a bona fide document as it was an A&L Goodbody document as opposed to a Hogan Lovells one. 

177.          Mr. Traynor did not accept the overall proposition when this was put to him. 

178.          Mr. Corcoran concluded his cross-examination of Mr. Traynor by putting to him, once again, legal propositions about the meanings of section 108 and the use of the NAMA seal.  It was ultimately accepted by Mr. Corcoran that this line of questioning was morphing into issues of law or, alternately, questions about which Mr. Traynor could give no helpful evidence. 

179.          In his re-examination, Mr. Traynor noted that on the second page of the Deed of Assurance (in its most legible form) that there was the following statement: -

"Present when the common seal of National Asset Loan Management Limited is affixed to this Deed and was delivered"

180.          Underneath that there was a signature and then the annotation "approved for sealing". 

181.          The sixth witness for the Promontoria interests was Mr. Ken Fennell.  Mr. Fennell gave evidence about his appointment as receiver in respect of Eassda Ireland Limited.  He gave evidence of this in relation to the floating charge, which he maintained included the book debts of the company, and these in turn related to the debt due to Eassda on foot of the building agreement between that company and the Corcorans.  He accepted that notice of his appointment was filed late in Companies House in Belfast.

182.          He denied that the filings in Northern Ireland constituted a deliberate attempt by him to establish a claim to benefit for the building agreement when he had no such entitlement.  Mr. Fennell was adamant that he was entitled to the proceeds of the building agreement.  He also gave evidence that he had not personally filed the documents in Belfast.

183.          With regard to the liquidator appointed to Eassda Ireland Limited in Northern Ireland, Mr. Fennell testified that that liquidator had never suggested that he had any entitlement in respect of the building agreement.  Equally, Mr. Fennell averred that it had never been suggested to him that it was inappropriate for him for to continue to act as a receiver notwithstanding the dissolving of the company in 2022. 

184.          With regard to his appointment as receiver over the Jackson lands, Mr. Fennell gave evidence about this.  He confirmed the evidence of Mr. Hanly that frequently Promontoria Eagle would sign appointment documents which would then be countersigned by the receiver.

185.          With regard to No. 6 Glenair Manor, Mr. Fennell gave evidence that Mr. Stapleton was not in possession of that property at the time of Mr. Fennell's appointment as a receiver in July 2015.  He said that during 2015 and 2016 he was hoping to dispose of the asset to the Corcorans, and therefore that he saw no commercial benefit in renting it or putting it up for sale.  He said that the property was rented from the middle of 2017 onwards.  At the time of his evidence, Mr. Fennell said that the property was not being rented but had "guardians" in situ. 

186.          Mr. Fennell then gave evidence about proceedings which he took against Mr. Corcoran in July 2017.  He said that works were done on the property in order to bring it into a condition which enabled Mr. Fennell to let it.  Sherry Fitzgerald had let the property for a short period of five months from January to June 2017.  Sherry Fitzgerald then sought to effect a second letting but this was disrupted by correspondence from Mr. Corcoran claiming that Mr. Fennell had no entitlement to let the property, and that Sherry Fitzgerald were acting in breach of the Order of March 2013.

187.          Sherry Fitzgerald did not want to get involved or, as Mr. Fennell put it  get "wrapped up in the allegations that were being made about me and about them in relation to entitlement to rent the property..." and that firm therefore resigned as letting agents.  A second letting agent, Chartered Assets Property Limited, were then engaged to rent out No. 6 Glenair Manor.  They succeeded in doing so, but did not communicate this to Mr. Fennell or his office.  After the letting, but before Mr. Fennell was aware of it, he authorised the issuing of proceedings against the Corcorans to restrain them from interfering in the letting of the property.  Short service of a motion was obtained from this court. Following this, Mr. Corcoran informed a trainee solicitor in A&L Goodbody (dealing with the matter) that the property had in fact been rented. On the 26th July A&L Goodbody informed the Corcorans that the matter would not proceed on the return date of the 27th July, and the proceedings were ultimately discontinued. 

188.          Mr. Fennell utterly disagreed with the assertion made by the Corcorans in their pleadings that the injunctive proceedings in July 2017 were not brought legitimately, and that instead Mr. Fennell had sought a declaration that he was validly appointed and did so on an urgent basis.  Mr. Fennell's response was: -

"I was and am at all time comfortable with my validity of appointment.  I just wouldn't have plotted something in that regard to try and prove that I was - what I thought I was already validly appointed over.  Why would I?  It just doesn't make sense to me."

189.          Mr. Fennell also denied that he had conspired with Promontoria Eagle Limited to make false claims about the Corcorans, and also gave evidence that the Corcorans had never engaged with him personally to make a payment in respect of acquiring No. 6.

190.          Mr. Fennell denied that he was acting in defiance of orders of the High Court in refusing to accept a set-off for the McHenry Judgment, or that he was seeking to undermine the authority of the High Court.

191.          Mr. Fennell denied that he would have been involved in the fabrication of deeds, or that he was carrying out threats to destroy Mr. Corcoran financially.  He concluded his direct evidence by saying that he had never threatened Mr. Corcoran, that he had never met Mr. or Mrs. Corcoran personally, and that he had never spoken to them.  Finally, he denied that in June 2020 there were 10 or 15 cars observed viewing No. 6 Glenair, and that his firm had told the neighbours that the property was "quietly being put on the market" at that time.  He had no knowledge whatsoever, he said, of these alleged events.

192.          Under cross-examination by Mr. Corcoran, Mr. Fennell was asked for evidence (which Mr. Corcoran felt should be documentary evidence) that show that the liquidator of Eassda "was not interested in the building contract...".  This is not what Mr. Fennell had said in his direct evidence.

193.          Mr. Corcoran then put it to Mr. Fennell that the let of No. 6 from January 2017 onwards was to neighbours of his who were unable to take showers in No. 6 because "certain things were not done." 

194.          Mr. Corcoran then put it to Mr. Fennell that tenants, the Prestages, had left No. 6 because the property was not finished, the heating was not working properly, and they had to bring in electric heaters.  Mr. Fennell had no details of the let to the Prestages or why they had left.

195.          Mr. Corcoran challenged Mr. Fennell to locate exactly where it was that he was accused of fabrication of documents.  Mr. Fennell was unable to do this.

196.          It was then put to Mr. Fennell that his pleadings suggested (in the reply to the defence and counter claim at (h)) that NAMA had sold the lands at Glenair Manor to Promontoria.  Mr. Fennell answered that he was not saying that the lands were sold.  It was the loan that had been sold by NAMA to Promontoria.

197.          With regard to a novation of the building contract to Mr. Fennell, Mr. Fennell indicated that he was not aware of any such contract.  Mr. Corcoran put to Mr. Fennell that because Peter Stapleton had been in possession of No. 6 Glenair Manor, Hogan Lovells had issues and declined to prepare the deed of assurance for Glenair, so A&L Goodbody prepared it.  I should note at this point that there was no evidence whatsoever for that proposition, other than the proposition that A&L Goodbody had prepared the deed.  The circumstances under which this was done were explained by Mr. Traynor in his evidence as I have already recorded.

198.          Mr. Fennell had no comment to make on this proposition.

199.          The validity of Mr. Fennell's appointment was then challenged by Mr. Corcoran with the following proposition (by reference to the mortgage debenture): -

"Can you please explain how you can claim to have been appointed over the lands at Ballyminion, and appointed the receiver, based on a mortgage debenture that you have now accepted that all of the properties related to it were sold, or sorry, sorry, I will use the correct word, that where - that didn't exist and never came under your control.  Therefore, I put it to you that the mortgage debenture in the schedule, you never gained authority and your deed of appointment is invalid?"

200.          Consistent with his earlier evidence, Mr. Fennell replied that he never took control of the Ballyminion assets but he did "de facto" take control of the building agreement as part of the floating assets of the company.  Mr. Corcoran then put it to Mr. Fennell that the building contract "was never novated to you from the previous receiver, Peter Stapleton?".  Mr. Fennell responded that he was unsure as to whether that had to happen but that he was nonetheless satisfied about the validity of his appointment over that asset.  With regard to Mr. Fennell's appointment over the assets of Mr. Jackson, he gave evidence that the only asset he took possession of was No. 6 in Delgany.  Despite the fact that the mortgage referred to other assets, this was the only asset over which Mr. Fennell took control.

201.          Mr. Corcoran then moved on to a meeting in February 2016 between Mr. Corcoran and two persons working with Mr. Fennell which was convened to see if matters could be resolved.  Mr. Fennell denied any knowledge of the details of the meeting. 

202.          Mr. Fennell was then asked about filings in Northern Ireland, and asked to explain why the date on which the Companies Office registered his appointment was different from his actual date of appointment.  Mr. Fennell said that his agents registered the documents.  Mr. Fennell maintained that he had signed the deed in respect of his appointment when he became receiver,  that it should have been lodged on time but that it was not. 

203.          Mr. Fennell was asked about the Deed of Assurance of Mortgage related to "Ballyminion under which you claimed to be appointed", and the Form 56 related to that.  Mr. Fennell replied that he had not seen the documents nor had they been shown to him.  He did, however, make the point that it was Promontoria that was relying upon this documentation to appoint him; Mr. Fennell was not relying upon it. 

204.          It was then put to Mr. Fennell by Mr. Corcoran that the proceedings which Mr. Fennell issued in 2016 - the main action in this case - were commenced on 6th July, 2016, and that his receivership was not registered in the Companies Office in Northern Ireland until the 24th July, 2016.  From these, Mr. Corcoran concluded: -

"I'm putting it to you that these proceedings are flawed because you are not the registered receiver on the official record of the company on the date these proceedings were issued."

205.          Mr. Fennell disagreed.  It was then put to Mr. Fennell that he had deferred his registration as receiver for a year in order to cover up the fact that he hadn't originally registered it within a specified time.  Mr. Fennell replied that he covered up no filing of documents nor did he purposely delay filing documents to cover up anything.  He stated that he had "no hand, act or part in filing ..." the document in Northern Ireland.  He speculated that the failure to file on time might have been a simple administrative error.

206.          Mr. Fennell was then asked about the €1,700,000 or thereabouts made available on foot of the facility letter in February 2007 by Bank of Ireland.  Mr. Fennell was asked whether or not these sums were paid in to the Eassda accounts, and he said that given the timing of the alleged payment (in that they were so long ago) it was very unlikely that records in respect of any such deposits would exist in the company. 

207.          With regard to the application on behalf of the Corcorans to appoint a receiver by way of equitable execution over both No. 6 Glenair Manor and what was described as the open space on the estate, Mr. Fennell indicated that he had no attitude to these motions. 

208.          Mr. Fennell was cross-examined about the separate receivership involving Whitfield Court.  He could recall no specifics about this case.  He pointed out that he was receiver over literally hundreds of assets around that time so it was very difficult to deal with this specific line of questioning.  Mr. Fennell was then cross-examined on another proposition on which he could not reasonably give evidence, which was Mr. Stapleton's status and his actions in respect of Glenair Manor after NAMA had made the sale of its interest to Promontoria.  Again, this line of questioning was not ultimately pursued.

209.          It was then put to Mr. Fennell that, as he was not disputing the fact that he was not appointed over all the assets of Eassda, he was therefore not appointed over the building contract as the building contract was included in all the assets.  Mr. Fennell disagreed with this interpretation of the evidence given on affidavit by his then solicitor.  Mr. Fennell maintained that the correct construction of that affidavit evidence and of the actual position was that he was appointed on foot of a Floating Charge over the building contract.  He was not appointed over all of the assets, but he was appointed over specific assets which included the building contract.  Mr. Fennell was cross-examined about whether or not the building contract was a property asset of the company.  Mr. Fennell was reluctant to categorise it as such, but stated that it was an asset of the company covered by the charge.

210.          Mr. Fennell was then asked about a notice of motion issued by the Corcorans in the 2016 proceedings - the main proceedings - on the 30th November, 2020.  The question, which was an unusual one, was: -

"Do you know where that motion disappeared to?"

211.          When Mr. Fennell stated, understandably, that he did not understand the question Mr. Corcoran continued: -

"The facts are that that motion was listed for hearing on 11th April and that motion disappeared from the list along with another motion for a discovery order against Lohan Solicitors in relation to Whitfield Court, and Judge Sanfey wanted to find out why and I'm sure Ms. Kelly can give the explanation rather than me saying what she said to Justice Sanfey."

Mr. Fennell stated that he had no knowledge of what happened to a motion brought by and on behalf of the Corcorans. 

212.          Mr. Fennell gave evidence that he had never seen the power of attorney under which Ms. White claimed she had executed the original Bank of Ireland mortgage.

213.          With regard to the Deed of Assurance of Mortgage, and an entry in that deed referring to the asset as being "6, 7, 8, 9 Glenair Manor, Delgany" Mr. Fennell confirmed that the only asset over which he was appointed was No. 6 Glenair Manor.

214.          Finally, in his cross-examination, Mr. Fennell was asked about the annotation to the effect that the document was approved for sealing, and whether that meant the document had not in fact been sealed.  Mr. Fennell, again understandably, indicated that he had no knowledge of the particular document and did not believe that he had ever looked at a Deed of Assurance of Mortgage.

215.          On re-examination, counsel for the Promontoria interests put to Mr. Fennell a pleading in the Corcorans' defence and counterclaim which reads: -

"So why has Ken Fennell and Promontoria Eagle Limited gone to such great lengths and fraudulently represented the facts in several High Court proceedings and fabricating Deeds as evidence."

216.          The reference is para. 18 of the Corcorans' defence and counterclaim.  The re-examination was a direct answer to Mr. Corcoran's challenge to Mr. Fennell as to where it was that the Corcorans had accused Mr. Fennell of fabricating documents.  This allegation clearly had been made.  Notwithstanding this pleading, it was never put to Mr. Fennell by Mr. Corcoran that the latter had engaged in the fabrication of documents.  On the contrary, and as the summary of the evidence makes clear, it was implied that no such allegation had been made.

217.          Two further witnesses gave evidence on behalf of the Promontoria interests.  The first of these, Mark Degnan, gave evidence about the meeting in 2016 at which Mr. Corcoran claims he was put under pressure to come to an arrangement with Mr. Fennell's office, and was threatened with dire consequences if he did not do so.

218.          Mr. Degnan identified Simon Morris as a fellow employee in Deloitte, then Mr. Fennell's firm.  On the 10th February, 2016 Mr. Morris emailed Mr. Corcoran, thanking him for taking a call earlier and indicating that "myself and my colleague will meet you on Tuesday 16th at 3pm in our office."

219.          Mr. Degnan said that Mr. Corcoran had not sought to bring a solicitor to the meeting, and that Mr. Degnan and Mr. Morris did not do so either.  Mr. Degnan described the meeting as a face to face one to discuss a possible commercial settlement.  There were a number of options, he said, set out at the meeting: firstly that both parties would walk away and effectively go back to back on costs, and No. 6 would be sold to another third party or go on the open market; secondly that Mr. Corcoran would complete the sale of the property in accordance with the existing contract; thirdly that an altered contract on "commercial terms" would be agreed; fourthly that the parties would continue with the litigation, which would mean more time and costs being expended over a protracted period.

220.          Mr. Degnan rejected a claim made by Mr. Corcoran in correspondence to the effect that he was requested not to bring any legal representation.  Instead, Mr. Degnan averred, Mr. Corcoran was told when he was invited to the meeting that Mr. Fennell's team would not be bringing legal representation.  If Mr. Corcoran had sought to bring legal advisers, then Mr. Degnan's side would have done so.  Mr. Degnan denied that Mr. Corcoran was "presented with a document at the meeting ..." and that Mr. Degnan "attempted to force him to sign it or he'd be financially destroyed."  Mr. Degnan also gave evidence that the meeting was initially "quite cordial and businesslike", but that Mr. Corcoran was "quite upset with the fact that a resolution wasn't reached when he had to travel up to Kerry at the time."

221.          Mr. Degnan was cross-examined by Mr. Corcoran as to whether or not there were proceedings "in play" at the time of the meeting.  Mr. Degnan was not sure about this; in his direct evidence he had said that there were already proceedings in existence at the time.

222.          On the proposals put at the meeting, Mr. Degnan confirmed that if both parties walked away it was unlikely that Mr. Corcoran would have received any funds from a sale to a third party.  However, Mr. Degnan did preface that response by saying: -

"I think the view at the time was that Mr. Corcoran wanted the house.  He'd invested a lot of time and money in the house, and had actually made alternative offers at the time.  I think for €200,000 or something to that degree, to try and acquire it.  So I disagree with that, Mr. Corcoran.  I believe at the time there was still a matter between the parties and you weren't willing to walk away to allow a sale proceed."

223.          It was then put to Mr. Degnan by Mr. Corcoran that the only email he had in respect of the meeting was the email received from Mr. Morris on the 10th February, 2016.   Mr. Corcoran contested Mr. Degnan's evidence that he had written a letter or an email "looking for a resolution". 

224.          Mr. Corcoran reiterated that the first occasion when there was any communication in relation to the meeting was the email of the 10th February.  Mr. Degnan repeated that he believed there had been an email in late January.  

225.          Mr. Corcoran suggested that the offer to walk away was based on "walk away, we'll take all the money and we won't financially destroy you."  Mr. Degnan rejected that characterisation of what was proposed at the meeting. 

226.          Mr. Corcoran then cross-examined Mr. Degnan about other matters, including the filing of documentation and Mr. Fennell's position as receiver over Eassda. 

227.          On a separate topic, Mr. Degnan confirmed that these proceedings had begun in July 2016, and he was then asked: -

"Did anything else happen at about the same time?"

The answer was: -

            "Not that I can recollect".

Mr. Degnan was then asked about another partner in Deloitte, Mr. Tom Kavanagh.   Mr. Corcoran claimed he was appointed as receiver over "my primary asset, which was my office in Dundrum..."  Mr. Degnan said he had no knowledge of this.

228.          Mr. Corcoran asked Mr. Degnan why the offers could not have been made by email. Mr. Degnan's response was that "face to face meetings are more productive." 

229.          Mr. Degnan accepted that, as far as he knew, he was unaware of any demand from Mr. Fennell or anybody in Deloitte's at the time made to Mr. Corcoran or the Corcorans that they "purchase the house in writing...".  Mr. Degnan resolutely maintained that there was an offer to reach terms of agreement in respect of completing the sale to Mr. Corcoran, notwithstanding Mr. Corcoran's suggestion to him that this was not the case. 

230.          Mr. Degnan's cross-examination concluded with the following answer: -

"To your initial point, Mr. Corcoran, I would categorically state that I did not state that we would financially ruin you through any litigation, Judge, and I wouldn't agree with your assertion that that's actually what happened."

231.          In re-examination, Mr. Degnan stated that the proceedings which he was referring to as predating the meeting of July 2016 were the proceedings in which the judgment of Mr. Justice Murphy had been delivered.  It was then put to him that in a letter from A&L Goodbody of the 7th April, 2017, the solicitors for Mr. Fennell and Promontoria stated: -

"Consequently, you are in breach of the terms of settlement and more importantly the court order.  We, as solicitors for the defendants hereby formally call upon you to complete the purchase of the property and to pay the outstanding purchase consideration in the amount of €1,305,000 to the defendants within 14 days of the date of this letter."

This was a letter sent by A&L Goodbody to the Corcorans.  Mr. Degnan agreed that this was a request in writing to close the sale. 

232.          Finally, on the question of prior communications which featured so heavily in the cross-examination of Mr. Degnan, Mr. Degnan identified an email from Joseph Corcoran on the 28th January, 2016.  The subject was "Eassda Ireland Limited", sent to Mr. Degnan.  The email begins: -

"Mark, referring to our conversation Tuesday..."

233.          Mr. Corcoran's email continues by referring to three documents, namely copies of offers made to Mr. Stapleton, copies of briefing on background provided to Mr. Cassidy, and copies of a complaint about the way in which the situation had been handled by the previous partners involved.  Included in the attachments was a letter addressed to Mr. Stapleton, at the end of which it is stated: -

"Please contact me should you wish to discuss the commercial settlement."

234.          Mr. Degnan gave evidence that it was his understanding that Mr. Corcoran was inviting him to discuss the commercial settlement before the meeting of February 2016, and that it was incorrect of Mr. Corcoran to suggest that no such communication ever took place.  In questioning by me, Mr. Degnan accepted that the letter preceding the 2016 case taken by Mr. Fennell expressly said that should the purchase of the property not be completed, Mr. Fennell would seek to make the Corcorans responsible for the costs of the proceedings.  Notwithstanding this, Mr. Degnan says that the question of the costs of any such proceedings was not raised by him at the meeting on the 16th February, 2016. 

235.          In addition, Mr. Degnan gave evidence that, prior to his testimony, he had never made a connection in his own mind between the appointment of Mr. Kavanagh as the receiver to Mr. Corcoran's Dundrum office and the meeting on the 16th February, 2016. 

236.          The final witness for the Promontoria interest was Mr. Conor Maher, a Chartered Accountant and a senior manager with BCM Global.   BCM Global is a European commercial loan servicer, with responsibility for dealing with the Alastair Jackson connection loans on behalf of Promontoria Eagle Limited. 

237.          Mr. Maher gave evidence about a document of the 10th February, 2015 prepared by Jarlath Murtagh, who was the most senior person in Mr. Maher's office at the time.  Mr. Maher was working on the Jackson connection in 2015 and assisted in the preparation of the proof of debt.  In early 2015 Mr. Maher's firm reviewed the personal liabilities of Alastair Jackson.  At that time, net of any expected realisations from the secured assets in his bankruptcy, Mr. Jackson's personal liability was in the region of €225,000,000.

238.          Mr. Maher gave evidence that the bankruptcy would relate to the unsecured element of the bankrupt's debt.  He would therefore look at the extent of the bankrupt's liabilities and ensure that the secured real estate value was deducted in order to come to the amount that was effectively approved in the bankruptcy.  There was a figure in the February 2015 document for estimated realisable value of a sum in excess of €5,000,000, which included the estimated realisable value of 6 Glenair Manor.  Mr. Maher went on to give evidence that while Mr. Jackson had exited bankruptcy personally, the administration of his estate continues.  He said: -

"I understand from some engagement with the trustee in bankruptcy that they are perhaps at the final stages of closing out that bankruptcy.  There is perhaps a very limited prospect of a small recovery in that bankruptcy, but again it would not be a material sum, specifically with reference to the level of Mr. Jackson's personal indebtedness."

The trustee was holding approximately £80,000 from which the trustee's own administration fees and other expenses would have to be paid.

239.          Mr. Maher was also able to identify from the data 153 associations with the Alastair Jackson connection.  This would include not only personal debt on the part of Alastair Jackson, but also the borrowings of associated corporate entities.  Mr. Maher confirmed that Mr. Jackson had one AIB facility, a number of Bank of Ireland facilities and a number of INBS facilities.  Mr. Maher then gave evidence of the position as of the 24th April, 2023, and in particular the accounts which remained open to be serviced on the part of his firm in respect of the Alastair Jackson connection on behalf of Promontoria Eagle.  Mr. Maher then gave evidence about a document generated for the purpose of summarising the extent of Alastair Jackson's personal Bank of Ireland facilities.  The extent of his indebtedness solely on the Bank of Ireland facilities was €16,200,000. 

240.          At the conclusion of Mr. Maher's direct evidence, Mr. Corcoran sought ten or fifteen minutes to consider the document and was given an hour to do so. 

241.          Mr. Corcoran began his cross-examination by asking Mr. Maher about a balance of in excess of €77,000,000 in respect of a specific account.  It was put to Mr. Maher that this relates to "Moyvalley".  Mr. Maher's response was that he did not know anything specifically in relation to the Moyvalley sale.  He did however state as a general proposition that where security was realised in respect of debts that were transferred, the debt was reduced but the balance of the debt was transferred to the purchaser.  He also stated that his evidence related to the loans, not the securities.

242.          Asked about a specific loan or facility related to Ballyminion in County Longford, Mr. Maher stated that on the face of the documents one could not identify such.  On the documents, Mr. Maher was able to identify an estimated realisable value of €900,000 in respect of 6 Glenair Manor as of the 10th February, 2015. 

243.          In re-examination, Mr. Maher identified references to demand letters in respect of two particular facilities.  The demands were made by NALM to Mr. Jackson. 

244.          Mr. Corcoran was then permitted to ask one further question of Mr. Maher which was whether he was presenting evidence that any of the mortgages were actually transferred to Promontoria.  Mr. Maher's position was that he was not giving any evidence that the underlying mortgage or the securities related to the loan balances transferred to Promontoria as part of Project Eagle; he was "speaking to the fact that these loans did transfer".  He clarified this as being transfer "in a practical technical sense."

245.          Three witnesses were called on behalf of the Corcorans.  One of these was Mr. Corcoran.  Mr. Jack Roundtree was also called.  In addition, a third witness, Mr. Robert Prestage, gave evidence on behalf of the Corcorans.  Mrs. Corcoran did not give evidence. 

246.          Because of issues with availability, Mr. Roundtree and Mr. Prestage were interposed during the course of Mr. Corcoran's direct evidence.  I will, however, describe the evidence of these two witnesses before moving on to Mr. Corcoran's evidence. 

247.          Mr. Jack Roundtree gave evidence that he had not agreed with Ms. White "to change the instructions to Dennis Handy and only give him an excerpt of the terms of settlement." He explained: -

"I would not have done such a thing.  I mean, what would be the point of that?  I mean, the objective of having an independent report and that it would be a report of the full facts."

248.          Mr. Roundtree went on to give evidence about a letter of the 22nd December, 2009 sent by him to Ms. White complaining about certain documentation not having been given to Mr. Handy, and in particular—as emphasised by Mr. Corcoran—that he had not been given a full copy of the settlement.  Mr. Roundtree then recalled a conversation she had had with Mr. Corcoran "in around September" about the power of attorney.  Mr. Roundtree said that he had been in practice for 45 years and he had never seen a mortgage executed under a power of attorney.  He then said that he had not written to Ms. White in September 2022, and did not get a reply from her to a letter that he had never written.

249.          Under cross-examination, Mr. Roundtree confirmed that he did not act for the Corcorans at the hearing before Mr. Justice Murphy.  He was not aware that Mr. Justice Murphy had decided that the report of Mr. Handy was to the effect that there had been practical completion of the contract and that this determined the issues between the parties.  He was also unaware of the findings of Mr. Justice Murphy about Mr. Corcoran having breached the terms of settlement, and neither Mr. Jackson nor Eassda having done so.

250.          Mr. Roundtree had no knowledge of the email from Grainne White of the 8th April, 2013, sent by Ms. White's secretary Sarah Cashin.  He was not retained by the Corcorans to take any steps to close the sale on foot of the judgment of Mr. Justice Murphy until October 2013.  Mr. Roundtree acknowledged that Mr. Corcoran was offering not money to close the sale, but a set-off of the McHenry Golf  judgment.  This was the proposal made by the Corcorans through Mr. Roundtree.  Mr. Rountree did not think that Mr. Corcoran at any point instructed him to offer payment of monies to close the sale.

251.          In his letter of the 26th February, 2014 to Ms. White, referring to an earlier letter of the 3rd inst., Mr. Roundtree said that this should have read "3rd ult.". 

252.          With regard to his letter to Ms. White of the 26th February, 2014, inviting her to write to him and "give me a laugh", Mr. Roundtree stated that what he meant was: -

"No, it was the attitude of the vendors to everything that we suggested that I considered ludicrous."

Mr. Roundtree then stated that he had experienced the sale of a property being paid for by setting-off of a judgment. 

253.          Finally, in his cross-examination, Mr. Roundtree stated that he had never seen any proof of funds from the Corcorans to close the purchase of 6 Glenair Manor.

254.          On re-examination, Mr. Rountree was asked about a letter sent by Mr. Stapleton on the 25th November, 2015, and Mr. Roundtree confirmed that this email to him suggested that Mr. Stapleton was still acting as receiver of the property. 

255.          In questions from the court, I asked Mr. Roundtree if the instances of which he was aware where a set-off had been used to pay for a property included a case where the property was incumbered by any security.  He said that he did not think so, unless the security was grounded on the judgment which was giving rise to the set-off.  He then accepted that if the property was incumbered by security, the secured creditor would have to be looked after and this was difficult to do when the money was being paid by set-off.

256.          Mr. Roundtree then stated that: -

"Well, when Mr. Corcoran took over his own litigation, I gave him my file ... I don't have any files anymore."

In fact, Mr. Roundtree did not even keep a copy of the files. 

257.          The second witness called on behalf of the Corcorans was a plumbing contractor named Robert Prestage who rented 6 Glenair Manor from Mr. Fennell in July 2017 on a 12 month lease.  His evidence solely concerned plumbing problems with the property and the lack of heat, and stated that the house was not ready to be rented by somebody.  This evidence has no relevance to the issues before me, given the view that I have formed about the meaning of the judgment of Mr. Justice Murphy delivered some four years before Mr. Prestage rented 6 Glenair Manor. 

258.          I will now turn to the evidence of Mr. Corcoran.  It must be difficult for a lay litigant to give evidence.  They do not have the advantage of being guided through their evidence by a lawyer.  They may also be unsure as to what is to be covered ( though in this case Mr. Corcoran had an enviable grasp of every detail relevant to this case).  With this in mind, Mr. Corcoran was facilitated in every way that occurred to me during the course of his evidence.  In particular, at an early stage in his evidence I ruled that objections as to hearsay and so on would be considered at the end of the hearing.  Mr. Corcoran was allowed to give evidence without rulings on any such objections and then, at a later stage, I would decide what evidence was admissible and what evidence would have been the subject of a successful objection. 

259.          Even taking all of these factors into account, the actual evidence given by Mr. Corcoran is surprising.  He did not touch on a number of issues which he ventilated in the cross-examination of witnesses.  Some of the claims made by him in the pleadings are not covered by him in his evidence at all.  That is something to which I will return when I go, point-by-point, through the various issues raised by Mr. and Mrs. Corcoran in their Defence and Counter claim. 

260.          Mr. Corcoran's evidence began with a description of the decision to sell their home in Blackrock and buy their house in Delgany.  He described difficulties that he had with the workmen.  He also gave evidence about issues in connection with the boundary fence.  He then described the commencement of the proceedings, the sensible encouragement from Ms. Justice Laffoy that the parties settle their differences, and the terms of settlement.  He then referred to a document giving the date of the winding up order of Eassda Ireland Limited, and the report of a Mr. Anthony McGinn who he described as "the official receiver in Northern Ireland".  From this, he emphasised the following: -

"[Alastair Jackson] states that by 2009 that all company assets were in the hands of receivers appointed by the banks and trading had ceased."

This, Mr. Corcoran emphasised, was the context of being "enticed" to enter into a settlement agreement in October 2009.

261.          He then refers to "a report into the disqualification of the directors in relation to Eassda.". The directors were disqualified for seven years.  The reasons why they were disqualified was: -

"Causing and permitting the company to trade at a time when they knew, or ought to have known, that it was insolvent."

By reference to that company, trading was "to the detriment of creditors from 31st March, 2008 to the cessation of trade on 10th of November 2009."

262.          Mr. Corcoran maintained that only €35,000 had been raised from Bank of Ireland on foot of the terms of settlement, while the evidence presented by his quantity surveyor was that "even the compliance issues, without the additional works, was €140,000 and therefore including the additional works would have been close to €200,000".  No evidence was given by the quantity surveyor of these matters.

263.          Mr. Corcoran then referred to the engagement of Mr. Handy, the appointment of Mr. Stapleton as statutory receiver, the bankruptcy of Alastair Jackson, and the hearing before Mr. Justice Murphy on the 12th to 14th December 2012. 

264.          He contended, as is now not in dispute, that the judgment of Mr. Justice Murphy and the subsequent order were mutual in the sense that these were a direction to both parties.

265.          Mr. Corcoran went on to give evidence that the builder Willow Court Homes had gone into liquidation with effect from the 8th August, 2012. 

266.          Mr. Corcoran went on to identify four questions which he wanted to tease out in his evidence.  The first was whether or not the certificate issued in May 2012 certified that the terms of settlement were completed; he said it did not.  I should note at this point that the status of Mr. Handy's certificate has been determined by Mr. Justice Murphy.

267.          Mr. Corcoran's second point was that it has been maintained in affidavits that the order was against the Corcorans.  Again, I would pause here to note that Mr. Corcoran accepts that it is directed to them, but it is also directed to the vendors.  This point is now accepted by the vendors.

268.          The third point is whether Mr. Stapleton was appointed as receiver, as opposed to statutory receiver.  Again, I pause to note that Mr. Corcoran ignores the fact that a statutory receiver is still a receiver. 

269.          The fourth point identified by Mr. Corcoran is whether or not Mr. Stapleton took possession of No. 6 Glenair Manor. 

270.          It is worth noting at this stage in the judgment that this portion of Mr. Corcoran's testimony resembled a submission rather than evidence on relevant facts.  It is difficult, for example, to understand what direct evidence Mr. Corcoran was able to give about whether or not Mr. Stapleton took possession of the house. 

271.          In any event, Mr. Corcoran was permitted to refer to a range of documents in respect of each of these points.  Mr. Corcoran, in the context of this evidence, stated that Mr. Justice Murphy's finding that there had been no breach of the settlement agreement by the defendants was a finding made "on the basis of a missing affidavit...".

272.          Mr. Corcoran then at some length referred to court documents and a judgment of Costello J. (as she then was) in the Court of Appeal.  He concluded in this fashion: -

"I have just provided two instances where official court records and the judgment of the Court of Appeal have been directly interfered with.  And there are others."

273.          Mr. Corcoran then became somewhat upset, asked for a few minutes, and was given until after the lunch break to compose himself.

274.          The alleged interference with official court records and a judgment of the Court of Appeal is simply not part of this case.  I am therefore not going to make any findings on Mr. Corcoran's complaints in this regard.  I should also say that it would be undesirable to do so, given that there is a lack of clarity about exactly what is alleged by the Corcorans and at least one element of the complaint relates to a completely separate action involving the appointment of Mr. Kavanagh as receiver over Mr. Corcoran's offices in Dundrum. 

275.          After the interposing of Mr. Roundtree and Mr. Prestage, Mr. Corcoran resumed his direct evidence referring to the proceedings involving the Dundrum premises.  Mr. Corcoran then referred to the 2016 proceedings taken by Mr. Fennell, which I have referred to as the main proceedings in the hearing before me.  He then stated: -

"And at the same time, the receiver was appointed in relation to my office, in my view executing their threat to financially destroy me by grabbing hold of my primary source of income."

Despite the fact that this was a reference clearly to the meeting with Mr. Morris and Mr. Degnan on the 16th February, 2016, Mr. Corcoran gave no evidence about that meeting.  The only evidence which I have on this very important issue is therefore the oblique reference back which I have just quoted.  That is quite different from giving the sort of detailed evidence which one would expect if the court is being asked to reject the evidence of Mr. Degnan on this point.  This is just one example of how the evidence placed before me by the Corcorans is profoundly unsatisfactory.

276.          Mr. Corcoran then gave evidence about retaining James V Tighe & Company Solicitors, who in turn instructed Ciaran Lawlor BL in early 2020.  Mr. Corcoran referred to the motions taken, on the advice of these lawyers, to appoint a Mr. Gerard Murray as receiver by way of an equitable execution over Site No. 6 Glenair Manor and what Mr. Corcoran described as "the open space".  I will obviously come back to those motion papers when considering these applications. 

277.          Towards the end of his first day of evidence on the sixth day of the hearing Mr. Corcoran gave evidence which, as he put it, was "unusual".  In the event that Mr. Murray was appointed as receiver by way of equitable execution over the land (initially the property of Mr. Jackson) Mr. Corcoran would pay Mr. Murray €350,000, but that would then be paid back to Mr. Corcoran by Mr. Murray after the latter took his agreed fee.  As the company is dissolved, there was no party to pay in respect of the building contract.

278.          In other words, Mr. Corcoran sees the outcome of this litigation as a circular movement of money which leaves Mr. Corcoran out of pocket to the tune of a few thousand euro - the fees and expenses payable to Mr. Murray - but other than that the Corcorans pay nothing further for a detached dwelling house in Delgany. 

279.          Mr. Corcoran then gave evidence about the two motions which (as he had earlier put to one of the witnesses) had "disappeared".  He gave evidence about the order of Mr. Justice Sanfey that the 2016 case be heard in full.  He then further gave evidence about the hearing before Mr. Justice Stack referred to in the course of the cross-examination of Mr. Traynor.

280.          Finally, in his direct evidence, Mr. Corcoran expressed surprise at the witnesses presented by the Promontoria interests . Their identity suggested to him that what "the other side wished to do was to re-fight or re-hear the original case and to emphasise, in particular, the claim in Mr. Justice Murphy's judgment that there was no breach by the defendants in that case, which was not based on evidence presented to him, but it was based on an uncontroverted witness statement that was in the Book of Pleadings or the Book of Motions or whatever but my replying affidavit it was not in that.  And that can be verified from the Transcript of the Court of Appeal where I made the application to lodge that affidavit with the Court of Appeal and they accepted that on the first right at the start of the hearing."

281.          Counsel for the Promontoria interests began her cross-examination by putting to Mr. Corcoran para. 18 of the Defence and Counterclaim, which accused Promontoria and Mr. Fennell of fraud and fabrication of documents.  Mr. Corcoran pulled away from this allegation against Mr. Fennell and instead stated: -

"No, I am suggesting that A&L Goodbody, on his behalf, fabricated those deeds."

In subsequent questioning, Mr. Corcoran stated on oath: -

            "Mr. Fennell wouldn't know how to fabricate a deed; only a solicitor would."

282.          On the 2017 proceedings in respect of the renting out of 6 Glenair Manor which were discontinued by Mr. Fennell, Mr. Corcoran acknowledged that he had written to Sherry Fitzgerald on the 16th May, 2017 in terms which included the following: -

"Mr. Fennell has no right to let the property as he only has possession of the site after a breach of the High Court Order... for specific performance."

And –

"Should you proceed and continue to take instructions from Mr. Fennell I require that you inform any and all parties that you are interested in renting the property that no valid tenancy agreement may be entered into with Mr. Fennell and that when the Order of the High Court is enforced against Mr. Fennell any person in occupancy of the property will be required to vacate the property immediately."

283.          Mr. Corcoran maintained that, in his pleadings, he was looking for the Murphy Order to be enforced against Mr. Fennell.  He was, however, unable to identify what portion of these pleadings sought such relief. 

284.          On his second day of evidence, Mr. Corcoran was asked about a letter from A&L Goodbody dated the 1st June, 2017.  This correspondence stated: -

"We are instructed you have sought to interfere with the receiver in the lawful discharge of his duties.  Our instructions are that you have on more than one occasion contacted the receiver's letting agents Sherry Fitzgerald, alleging the receiver is not validly appointed, making various threats (including threatening to bring proceedings against them if they continue to act for our client in respect of the Property) and calling into question the receiver's entitlement to let the property.  Our client considers your interference, and clear breach of the receiver's rights and entitlements as lawfully appointed receiver of and over the property, to be a particularly serious matter.

We hereby request that you please confirm the following by immediate return:

(1)        that you will provide an undertaking that you (or any of your representatives) shall refrain from making any further contact Sherry Fitzgerald (sic) or any organisation engaged by the receiver to let or otherwise deal with the property;

(2)        That all correspondence relating to this matter going forward shall be directed to this firm;

(3)        That you will desist from further interfering with or otherwise contacting the letting agents, service providers or occupants of the property and/or attending at the property."

285.          Mr. Corcoran was asked to respond by 5pm on the 14th June, 2017.  In fact, Mr. Corcoran responded on the 12th June, 2017.  His letter stated, among other things:

"Since [Mr. Fennell] has an obvious conflict of interest in relation to the performance of his duties under both of these instruments, you must specify in which capacity you are claiming to act and on behalf of which Receiver."

The two instruments were Mr. Fennell's appointment as receiver "for the site" and as receiver in respect of Eassda Ireland Limited.

286.          The letter went on that if Mr. Fennell should "... proceed to rent out my property '6 Glenair Manor' without first addressing these fundamental issues and clearly establishing in which capacity he is acting and at what legal basis, I will use this letter in the next round of High Court proceedings to secure all the rental generated from my property along with compensation against Mr. Fennell personally for his illegal actions in total disregard for the order for specific performance in the judgment registered against the site."

287.          On the 6th July, 2017 A&L Goodbody responded, referring to the alleged conflict of interest and referring to the judgment of Mr. Justice Murphy.  They then stated that: -

"Our instructions are now to apply to court for an order seeking injunctive relief..."

288.          In a letter of the 10th July, 2017, Mr. Corcoran states: -

"I can accept that Mr. Fennell has been appointed as receiver for the site under the instrument of appointment of 21st August, 2015 and has taken possession of the site at 6 Glenair Manor."

289.          Mr. Corcoran responded immediately to having this passage put to him by stating that his position had changed in the light of subsequently discovered documents.

290.          Mr. Corcoran continued in his letter of the 10th July, 2017 that he was willing to consent to not interfering with Mr. Fennell's right to let out the property but only subject to certain conditions. These conditions included the undertaking of work on the drainage system from the main sink in the kitchen, that any tenant be put on formal notice that their tenancy is subject to an order for specific performance, and that an arrangement be negotiated in relation to the splitting of any rental on the property.

291.          On the 17th July, 2017 (as Mr. Corcoran accepted in his evidence)  he wrote to Chartered Assets (the letting agents which had replaced Sherry Fitzgerald) requiring that firm to agree to comply with the first two conditions contained in the letter to A&L Goodbody of the 10th July "or accept full liability for all future losses and any damages resulting from the failure to comply with these two conditions..."

292.          Mr. Corcoran then acknowledged that on the 26th July, 2017 he informed the trainee solicitor in A&L Goodbody that the property was already rented to Mr. Prestage, and that there was therefore no purpose in any injunction. 

293.          The same day, A&L Goodbody notified Mr. Corcoran by email that they were investigating the assertions and they were putting the matter back on consent to a date in October.  The proceedings were discontinued on the 26th September, 2017.

294.          Mr. Corcoran was then asked about the DAR Transcript of a hearing on the 28th June, 2019 in which he said: -

"There was no demand whatsoever to close the order for specific performance until my solicitor contacted their solicitor, telling them that we wished to close." 

295.          Mr. Corcoran was then asked if we recalled the email from Ms. White sent by Ms. Cashin on the 12th April, 2013 seeking to close the sale.  Asked about the reference in the letter to a voicemail left for Mr. Corcoran by Ms. White on the 19th March, 2013, he said that he has never accepted voicemail on his phone because of the amount of spam calls that he gets (an average of two or three a week). 

296.          Mr. Corcoran was then asked about a telephone conversation which Ms. White stated she had with Mr. Corcoran and which is referred to in the letter of the 12th April.  The alleged telephone conversation took place on the 21st March, 2013.  Mr. Corcoran said he had no recollection of that, he then said that he did not accept that he had any such telephone conversation.  He then reverted to saying: -

"So I do not accept that she actually made a call to me.   And if she did, and if she's swearing it, I certainly don't have any memory of it whatsoever."

297.          Mr. Corcoran then denied that there was a conversation in which Ms. White was told that there was a solicitor in Dublin who would be representing him in the conveyance.  Having denied it, he said that: -

"No, I'm saying that I have no recollection of that.  Mr. Jack Roundtree had always acted as my conveyancing solicitor. She was fully aware of that."

298.          Mr. Corcoran then denied that there had been any telephone call of the 8th April, 2013 made by Ms. White to him to receive the name of his solicitor, at the end of which he hung up on her.  He said that this "absolutely" did not happen.  He then said that Ms. White had been very difficult to deal with and that the best way to describe her was "slippery". 

299.          Mr. Corcoran accepted that he received the email.

300.          Counsel then put a further email which began: -

"Dear Joe, see attached.  Can you please contact me urgently to confirm the name of your solicitor?"

There is then a further reference to "our telephone call on the 21st March".

The email also asks as a matter of urgency to "complete the sale within the time limits as ordered by the High Court."

301.          Mr. Corcoran presumed that he had received the email.  He did not reply to it.  He suggested that the onus was on Ms. White to produce the certificate required under the judgment of Mr. Justice Murphy.  He thought that Ms. White was simply "bluffing" and concluded his answer: -

"So I was not going to engage with Ms. White until I had the certificate, which was their completion of the order of Mr. Justice Murphy, in compliance with the terms of settlement."

I hardly need to repeat that Mr. Justice Murphy had not ordered that any certificate be produced.

302.          Mr. Corcoran acknowledged that in a letter to A&L Goodbody of the 31st May, 2016 he had offered €200,000 for the land and nothing for the buildings.  On the 19th September, 2016 in a letter to Promontoria Eagle Limited Mr. Corcoran offered the sum of €350,000 in respect of the property.

303.          Counsel then put to Mr. Corcoran that the McHenry Golf judgment had in fact been released by Bank of Ireland.

304.          The basis for the proposition that the McHenry judgment was released was an averment by Mr. Corcoran in an affidavit that he swore in the McHenry proceedings (the 2008 claim) on the 11th March, 2020 to this effect: -

"3.       The defendants in the said proceedings have to date discharged the sum of approximately €50,000 in respect of the said judgment and the balance remains outstanding including costs.  This amount was discharged in 2011 in respect of the release of the judgment mortgage registered against the Glenair Manor property to enable the closing of the sale of No. 5 Glenair Manor, Delgany, County Wicklow."

305.          On the face of it, this would certainly suggest that the judgment mortgage had been released in its entirety.  Mr. Corcoran denied that this was the case, and stated that this was "for the release of the charge or the judgment from that actual site." By "actual site" he means No. 5.  That is not, of course, what the affidavit says.

306.          It was then put to Mr. Corcoran that he had written to a Mr. Jim Hackett in the Bank of Ireland on the 26th October, 2010 in these terms: -

"I am prompted to write to you as James Tighe has briefed me on your bank's involvement in enforcing the issue of a settlement in relation to the registered judgment mortgage of McHenry Golf to facilitate the closing of the sale to Mr. Gary Kane of house number 5, Glenair Manor."  

Mr. Tighe is, as mentioned earlier in this judgment, the solicitor who originally acted for McHenry Golf in the 2008 proceedings and who was retained by Mr. Corcoran during the course of some of the current proceedings. 

307.          It was accepted by Mr. Corcoran that Bank of Ireland did not need to get involved in the forcing of a settlement to close the sale, but that this was done in this case for reasons which Mr. Corcoran was unable to explain. 

308.          My conclusion on this evidence is that it does not establish that the mortgage on 6 Glenair Manor has been released. The letter to Bank of Ireland is equivocal. The wording in Mr. Corcoran's affidavit is more likely to be an unfortunate use of language on his part rather than a clear concession that the security has been released.

309.          The letter of the 26th October, 2010 is significant for another reason.  At the end of the letter, Mr. Corcoran stated the following: -

"I am also making you aware of another ongoing issue in relation to the conditions attached to the planning and the transfer of the common areas to the residents of Glenair Manor.  I have attached a letter to Ms. White, which details this issue dated the 22nd of October."

310.          Counsel then moved on to consider the issue of the common areas and the open space.  In response to questions about this part of Mr. Corcoran's letter to Mr. Hackett, Mr. Corcoran said: -

"And if memory serves, I mean, the result of all that is that nothing happened.  [Ms. White] never transferred the actual common areas to the residents in the actual - in Glenair Manor. It was to be done under, I understand, not a legal transfer, it was referred to as a - is it a license? I can't remember the exact ..."

311.          Mr. Corcoran was then asked about a DAR Transcript of an appearance before Mr. Justice Jordan on the 28th June, 2019.  In this, Mr. Corcoran appeared to assert that NAMA acted as mortgagee in possession to close the sale of 8 and 9 Glenair Manor.  He then went on: -

"I have exhibited the map attached to that mortgage deed, because I had that as a result of the proceedings taken by Promontoria Eagle.  And that map shows that it only relates to the individual sites, not the common areas which were handed over under a licence to the Wicklow County Council in October 2010."

312.          Mr. Corcoran continued: -

"As you will see, the only shaded areas there are the sites themselves, not the common areas which have already been handed over under licence to Wicklow County Council." 

313.          Asked about the common area, Mr. Corcoran referred to that as being "a piece of land beside house no. 9...". The open space, over which he wants a receiver appointed, was different.  Mr. Corcoran accepted, however, that he had not made any distinction at the hearing before Mr. Justice Jordan between common area and open space.  In addition, Mr. Corcoran's description of what constituted the open space lacked the requisite precision, at least on the papers opened to me.

314.          It should be noted that at this point in time Mr. Corcoran offered evidence as to what Wicklow County Council had told him about what parts of the estate had been taken in charge.  However, for that evidence to be meaningful it would really need to be given by Wicklow County Council and would have to be considerably more detailed than what Mr. Corcoran offered. 

315.          Counsel then put to Mr. Corcoran a document from his own book of papers which was a memo from the planning section of Wicklow County Council.  That memo recorded: -

"The estate was taken in charge on 3rd March, 2014."

316.          The memo also recorded that there were "minor matters to be resolved". 

317.          With regard to the open space over which Mr. Corcoran wished to appoint a receiver by way of equitable execution Mr. Corcoran confirmed that McGovern Estates had advised him that the parcel of land only had amenity value with a market worth of €50,000.  However, Mr. Corcoran then made the following concession: -

"The intention is that in some way I would acquire that site, because it is technically a site that has been refused planning permission, in the hope and expectation that maybe five/ten years from now that I might be able to get planning permission on that site.  It's not possible at the moment, but things change."

318.          Mr. Corcoran then suggested that Mr. Murray might decide to sell the open space on the open market "or directly to me on the basis of an offer...", Mr. Corcoran would then pay Mr. Murray "cash", and then the cash would be returned to Mr. Corcoran as the judgment holder having deducted his own fees and expenses from the amount offered by Mr. Corcoran.  Mr. Corcoran would bid "up to five, six hundred thousand, whatever's left on the judgment mortgage" which would suggest that potentially very little cash would actually change hands. 

319.          Mr. Corcoran was then questioned about a hearing before the Court of Appeal, in which he sought an order overturning a decision of Mr. Justice Jordan in the High Court refusing leave to join NAMA to the 2008 proceedings.  Mr. Justice Murray had asked Mr. Corcoran whether he was joining NAMA to a set of proceedings that were defunct with a view to seeking entirely different relief against them.  Mr. Corcoran replied, to which Mr. Justice Murray responded: -

"Why don't you just sue NAMA?"

Mr. Corcoran eventually responded a few seconds later: -   

            "But I needed to get the evidence from them to do that and that's what I've got now."

320.          It was suggested to Mr. Corcoran that this was the evidence which he had used to institute proceedings in 2020 against NAMA, Robert Fay, Peter Stapleton and Grainne White.  Mr. Corcoran replied: -

"No.  that was part of the evidence.  I had most of it at the time already."

321.          Mr. Corcoran did concede that he obtained certain evidence in an affidavit of Robert Fay "that allowed me to actually take the proceedings in 2020." 

322.          The final line of cross-examination of Mr. Corcoran related to his contact with Ciaran Lawlor, the barrister who had been instructed by Mr. Tighe in the context of the 2008 McHenry Golf judgment and its utilisation by Mr. Corcoran.  During the course of the seventh day of hearing, Mr. Corcoran indicated that he had talked to Mr. Lawlor the previous evening and that Mr. Lawlor had suggested that closing submissions be made in writing as opposed to orally. The reason for this was that Mr. Corcoran would be handicapped by being forced to make oral submissions against experienced counsel.  I declined this application, as oral submissions are a critical part of the hearing of every case and in particular this one.  However, I put back the making of any submissions by Mr. Corcoran so that he would have a weekend to consider his response to the submissions of counsel for the Promontoria interests.

323.          Against that background, Mr. Corcoran was cross-examined in essence about whether or not he had discussed his evidence with Mr. Lawlor.  I am satisfied from the account given by Mr. Corcoran, and in particular the very small period of time that his phone records the call took, that he did not discuss this evidence with Mr. Lawlor. Instead, he merely obtained advice about how to approach the oral submissions at the end of the hearing.

324.          I asked Mr. Corcoran a limited number of questions in connection with the paragraph of his letter to Mr. Hackett of October 2010, which reads as follows: -

"As I am now looking for an order for specific performance of the sale of property number 6 Glenair Manor 'as is'.  It should be a relatively simple process to identify the costs of finishing the house, I have, for your convenience, summarised the process below."

325.          As this communication post-dated the settlement of October 2009, Mr. Corcoran accepted that he was looking for an order that he should be sold the house as it currently stood and not on the basis of any enhancements or further works.  However, he then said that he changed his mind and looked for a different form of specific performance.  When asked what made him change his mind, he said: -

"I'll be honest with you, Judge, I don't remember writing this letter and actually stating that, so I cannot suggest to you how I changed my mind from 'as is' to the terms of performance."

326.          One final issue arose from Mr. Corcoran's evidence.  It was the service of the motion in respect of the open space on Wicklow County Council.  Wicklow County Council was, on the face of the motion, one of the notice parties which should have been properly served with the papers.  The return date of the motion was the 18th June, 2020. (a Thursday). After his evidence was completed, Mr. Corcoran found an affidavit of service from a Margaret Roebotham, a legal secretary of James V. Tighe & Company.  She says that she served the notice of motion by registered prepaid post at Celbridge Post Office on the 12th June, 2020 together with an accompanying letter of the 11th June, 2020 from Mr. Tighe's firm.  The letter of the 11th June, 2020 was not made available to me.  There was no averment from Ms. Roebotham that the letter had not been returned undelivered.  I raised with Mr. Corcoran the question as to whether or not, under the rules, sufficient notice had been given of the return date for the motion.  In addition, no correspondence was put before the court (if it existed) to the effect that Wicklow County Council was notified of the eventual hearing of the motion before me.  Mr. Corcoran, on the afternoon of the seventh day of the hearing, asked for permission "to bring Mr. Tighe".  However, Mr. Corcoran was unable to tell me what Mr. Tighe would say and, having been given a short while to search for it, he was unable to find any relevant letter.  For those reasons, and given that counsel for the Promontoria interests was about to start her submission and objected to any further deferral for the giving of unspecified evidence, I declined to allow Mr. Corcoran to call Mr. Tighe.  I did, however, state that if I was dissatisfied "at the end of the day in respect of service of these motions on the relevant parties, ... I would build into any judgment I give the facility on the part of Mr. Corcoran to serve them afresh with regard to the motions."

327.          Having set out, in some detail, what I believed to be the most relevant portions of the evidence I now intend to set out my findings on the disputed evidence, and then to proceed to analyse the claims made by the Corcorans in these proceedings.

Findings on the Evidence

328.          A trial judge must resolve any material conflicts of fact.  It will be clear from the summary of the evidence that, despite the time it took, the evidence only threw up a very limited number of clashes on factual matters.  A number of the issues that were ventilated in the evidence were not to be found anywhere in the pleadings.  This is despite the clear direction of Sanfey J that the parties were to replead the 2016 action, thereby giving both sides an ideal opportunity to make sure that every point they wished to raise was properly before the court.  As already noted, and as will be seen in some detail later in the present judgment, the Corcorans took advantage of this opportunity.  The Promontoria interests did not amend their pleadings. It is therefore not acceptable that Mr. Corcoran challenged the evidence of some witnesses, and the validity of some transactions, on the basis of unpleaded issues.  To give one example, much was made of the alleged absence of the stamp of NAMA on a deed.  As it happens, I am not persuaded that the absence of the stamp (if it was absent) is of any legal or factual significance.  The relevant section of the NAMA Act (section 108) states that the stamp "may" be affixed to documents in order to achieve a level of legal certainty in respect of a specific transaction; there is no statutory requirement brought to my attention to the effect that NAMA deeds were automatically invalid unless so stamped.  Notwithstanding this, the question of the application of the NAMA stamp was put to a number of witnesses.  This line of questioning, though pointless, was permitted at the trial.  However, as it was an unpleaded matter it will not be the subject of any finding of fact.  That is also the case for all arguments raised by the Corcorans which they did not plead.  While it was suggested by Mr. Corcoran that documents and information came to him late, and therefore certain matters could not have been included in the amended Defence and Counterclaim, the correct course of action was to seek to amend the pleadings even at trial.  That process would have facilitated a proper consideration of whether the Corcorans should be allowed to raise any of these issues.  No such application was made.

329.          There are, however, a number of conflicts in the evidence that I should resolve in fairness to the relevant witnesses.  On the power of attorney held by Ms. White, I accept her evidence.  She struck me as a conscientious witness, trying her best to give evidence about a very difficult transaction from some considerable time ago.  I do not accept Mr. Corcoran's contention that, on the scope of the power of attorney, Ms. White changed her evidence.  On the contrary, any clarification of her original evidence was caused by the shifting nature of Mr. Corcoran's questions.  While Ms. White's evidence differed from that of Mr. Roundtree on the question of whether he had written to her about the power of attorney, it would be very difficult to decide that Ms. White was wrong on this point.  It is quite impossible to do so when Mr. Roundtree's evidence was not put to her.  While it is noteworthy that the power of attorney has not been found with the security documents (as the evidence was that it should have travelled with them), I accept Ms. White's evidence that the mortgage would not have been accepted by Bank of Ireland (and, by inference, the monies not made available) unless a suitable power of attorney was presented to it at the time.  Finally, Ms. White presented herself as a very capable solicitor who would not have put herself in a very vulnerable position by executing such an important security document without proper authority.

330.          On the instructions given to Mr. Handy, it is not necessary to decide the clash of evidence between Mr. Roundtree and Ms. White.  That dispute is overtaken by the judgment of Murphy J.  I should say, however, that given the confidentiality of the settlement terms, there was no reason to provide Mr. Handy with the full terms of settlement.  In addition, Mr. Handy was never to certify compliance with the full terms of settlement; the repeated assertion that he was to do so is simply at odds with the plain meaning of the settlement document.

331.          Finally, I accept the evidence of Ms. White that she contacted Mr. Corcoran by phone in an attempt to close the sale in the aftermath of the Murphy Order.  I do so as (i) these efforts are referred to in contemporaneous emails which Mr. Corcoran accepts he received; (ii) Mr. Corcoran did not respond to these emails at any relevant time to dispute these phone contacts; and (iii) the attempts to contact Mr. Corcoran by phone are consistent with the fact that Mr. Roundtree was no longer acting in the sale at the time and refer to an anonymous solicitor in Dublin about whom Ms. White could have known nothing without talking to Mr. Corcoran - such a detail is unlikely to have been invented by her and, again, was not disputed by Mr. Corcoran at the time.

332.          I accept the evidence proffered by the Promontoria interests as to the indebtedness of the borrowers, the security instruments and their scope, the acquisition of these debts and related securities by NALM, the sale on to Promontoria, the demands for repayment by NALM, the appointments respectively of Mr. Stapleton and Mr. Fennell, the readiness of NALM and Mr. Stapleton to close the sale on foot of the Murphy order, the failure of the Corcorans at any time to offer money to close the sale (or to put Mr. Roundtree in funds to do so), the demands made of the Corcorans over a long period of time to close the sale after the judgment and order of Murphy J, and the failure or refusal of the Corcorans to do so in any meaningful way.  This is just a summary of the evidence which is set out more fully earlier in this judgment.  Before I move on to the pleaded case of the Corcorans, I should address the relevant legal issues raised at the trial.

The Core Legal Issues

333.           In their written and oral submissions, counsel for the Promontoria interests addressed three basic legal propositions.  The Corcorans hardly referred to any legal authorities in their written or oral submissions to the court.

334.          The first of these related to the status of the Corcorans, and their ability to advance arguments as to the rights of Promontoria or Mr. Fennell.  As will be clear from the account of the evidence, much of the challenges agitated by the Corcorans were matters more properly raised by Mr. Jackson, Eassda Ireland Ltd, the liquidator of that company, or the Northern Irish bankruptcy officials.  However, there was no evidence before me that at any time did any of these entities raise any issue about (for example) the execution of the mortgage deed by Ms. White, the signature page on the debenture in favour of INBS, the transfer of securities to Promontoria, the appointment of either receiver (statutory or otherwise) or the legal capacity of Mr. Fennell to complete the sale to the Corcorans.  In submissions, counsel referred to the judgment of Ms. Justice Deirdre Murphy in English v Promontoria [2017] IEHC 322 where she held:

"60. There may well be frailties, defects or deficiencies in the arrangements between Promontoria in its various guises and the various Ulster Bank entities but that is not a matter of concern to the plaintiff.  If any such issues exist, they lie between the parties to the deeds.  The Court wishes to make it clear that it is not suggesting that such frailties exist.  As submitted by the plaintiff, there may well be other parties involved in the wider transaction but again, that is not a matter of concern to the plaintiff.  His only entitlement, as stated in the Court's earlier judgment, is to have it established that Promontoria (Aran) Limited have acquired Ulster Bank Ireland Limited's interest in his loans and mortgage and it appears to the Court that that has been established on the balance of probabilities by the uncontroverted evidence of Jonathan Hanly and Karen McCrave and the deeds exhibited which the Court repeats are all valid on their face."

Mr. English was the borrower in that action.  Here, the Corcorans have no involvement in the contracts which they now seek to impugn either by denying that they were entered into in a legally effective way or by asserting deficiencies in the documentation giving effect to the agreements between the relevant parties.  In my view, the Corcorans simply do not have the standing to make these arguments or to seek to deny contractual arrangements to which they are not a party.  As it happens, I have found that the evidence called on behalf of the Promontoria interests has established that the relevant securities and associated debts were sold to Promontoria and that Mr. Fennell had at the relevant times the required entitlement to close the sale to the Corcorans.  Had I not so found, I would nonetheless have decided that the Corcorans did not have the necessary standing to raise these issues.

335.          The second issue is whether the Corcorans were or are entitled to seek to close the sale by setting off the McHenry judgment against the purchase price of the land or the sums due in respect of the building contract.  As far as the plot of Number 6 is concerned, this is secured by a first charge in favour of Promontoria.  That charge would be set at nought if the Corcorans were legally entitled to close the sale by way of the proposed set off.  Unsurprisingly, the law does not permit such a manoeuvre - see N W Robbie & Co v Witney Warehouse Ltd [1963] 3 All ER 613 as applied by Budd J. in Lynch v Ardmore Studios (Ireland) Ltd [1966] I.R. 133.  The suggestion that the Corcorans could ever have acquired the land, and satisfied their obligations under the building contract, by way of set off was just unstatable.

336.          The third legal issue is the entitlement of Mr. Fennell to orders that the two contracts are at an end.  His counsel rely upon the judgment of Lord Wilberforce in Johnson v Agnew [1980] 1 AC 367, where it is observed that a party with the benefit of an order for specific performance may seek to "put an end to the contract" in certain circumstances.  More fully, Clarke J. (as he then was) approved the following passage in The Principles of Equitable Remedies in Mount Kennett Investment Company v O'Meara [2011] IEHC 210:

"Secondly, if the plaintiff has elected not to rescind in the light of the Defendant's breach, but has instead obtained an order of specific performance, a new or continued failure by the Defendant to carry out his obligations in an essential respect enables the Plaintiff to rescind the contract and to obtain a dissolution by the Court of its order."

It will be remembered that Murphy J found that the vendors had (unlike Mr. Corcoran) not breached the Terms of Settlement of 2009, and that the sales were to be closed within 28 days (by his order of the 11th of April 2013).  I have accepted the evidence of Ms. White that her clients were ready to close on foot of this order.  At no time since that order was made have the Corcorans stated, let alone proven, that they were ready to close the sale by paying the outstanding sums owed.  The letter before action from A&L Goodbody (on behalf of Mr. Fennell) called upon the Corcorans to complete the sale, but they did not do so.  In all of these circumstances, Mr. Fennell is entitled to orders to the effect that the two contracts are at an end.

337.          Finally, I should note that the Corcorans have put forward no authorities on which they rely in disputing these three basic propositions. This does not, of course necessarily mean that the submissions are well founded. However, on considering these fundamental arguments (and the authorities supporting them) I have decided in favour of the Promontoria interests.

The Defence and Counterclaim

338.          In order to deal comprehensively with the issues raised by the Corcorans, I intend to go through the Defence and Counterclaim on a point-by-point basis, giving my decision on each of the issues raised by them.  It will be remembered that the case management order of Sanfey J. on the 11th February, 2022 directed that the Corcorans have liberty to deliver an Amended Defence and Counterclaim, that this was done, and that no further application to amend was made notwithstanding complaints made on behalf of the Promontoria interests that the Corcorans were advancing claims that had not been pleaded.

339.          The Defence denies that Mr. Fennell was validly appointed receiver in respect of certain assets of Mr. Jackson on foot of the mortgage in charge dated the 23rd February, 2007.  I will set out each individual plea, and then give my decision on that plea. 

1A       "By the Plaintiff's own admission in the 3rd line of paragraph 5 of the Statement of Claim, Promontoria Eagle Limited acquired 'all right, title, interest, benefit and obligation' in respect of Site number 6, Glenair Manor from National Loan Asset Management Limited (NAMA).  Therefore Promontoria Eagle Limited could not validly appoint a Receiver to a site that it already owned, as it had acquired 'title' to Site number, along with the purchase of the corresponding Mortgage secured on the property."

This plea involves a misunderstanding of the relevant plea in the Statement of Claim.  Paragraph 5 of the Statement of Claim states: -

"By loan said agreement dated 20th June 2014 made between the Bank, NALM and Promontoria Eagle Limited (PEL), the Bank and NALM agreed to sell and PEL agreed to buy, inter alia, all right, title, interest, benefit and obligation (both present and future) of the Bank and NALM in and under the security documents."

Promontoria did not buy the property.  It bought the entitlements and obligations of Bank of Ireland and NALM under the security documents.  To put it in layman's terms, they bought the security but not the property.  This plea therefore fails.

1B       "The Mortgage granted in February 2004 was for the purpose of realising funds from the value of the contracts for the sale of six of the nine sites in the Glenair Manor Development.  The maximum contract value of each of these sites was €500,000 and the repayment terms were that the full amount realised from the closing of each contract from the sale of each of the six sites would be used to repay the Mortgage to Bank of Ireland.  There has therefore not been any breach of the repayment terms attached to the Mortgage and therefore Promontoria Eagle Limited is not entitled to exercise any rights under the Mortgage to appoint a Receiver.  Five of the six sites were already sold prior to the sale to Promontoria Eagle Limited in June 2014, of the site and the Bank of Ireland Mortgage.  This left just outstanding the contract for sale is (sic) site number 6, which Promontoria Eagle Limited has refused to close, in defiance of an Order for Specific Performance applied for by the Defendant in September 2010 and granted in March 2013."

As is clear from the findings of fact, there has been no refusal to close the sale of 6 Glenair Manor.  It is the Corcorans who have refused to close the sale, by at no time from the judgment of Mr. Justice Murphy in March 2013 onwards actually putting up money to pay for the property.  

This plea also misrepresents what is in the facility letter, and what is in the mortgage.  Recital (c) of the mortgage provides that "It has been agreed between the parties hereto that all monies now owing or which shall hereafter become owing on a general balance of account or otherwise from the Mortgagor to the Bank with interest, costs and charges shall be secured in the manner and upon the terms hereinafter appearing." The facility letter, which predated the deed of mortgage in charge, requires security "... for all the liabilities present and future howsoever arising, of the borrowers to the bank."  The borrower is Mr. Jackson, the bank is Bank of Ireland. 

Contrary to what is pleaded at 1B, both the facility letter and the mortgage contemplated and all sums due security to be provided in the favour of the bank.  On the evidence of Mr. Maher, there are still considerable sums due from Mr. Jackson to the bank.   

1C       "In the Supreme Court decision given by Ms. Justice Laffoy in the case of Tom Kavanagh and Bank of Scotland Plc v Patrick McLaughlin and Roseann McLaughlin delivered on the 19th March 2015.  Justice Laffoy stated that if Bank of Scotland wished to enforce the charge, it must firstly comply with the requirement that it be registered as the owner of the charge.  It is more important that the principal (sic) established by this Supreme Court precedent should also be applied in this case because the land is not registered in the Land Registry but recorded in the Registry of Deeds.  Therefore Promontoria Eagle Limited should be required to register its interest in the mortgage against the site, before it is entitled to exercise the right to appoint a Receiver."

No submissions whatsoever were made to me, either written or orally, by Mr. or Mrs. Corcoran about this authority or its application to the case.  For this basic reason, the plea is not made out.

1D       "Promontoria Eagle Limited did not fulfil the conditions precedent stipulated in the Mortgage Deed that were required prior to being able to validly appoint a Receiver in that they did not issue a demand to the Mortgagor under clause 2 of the Mortgage Deed before purporting to appoint a "Receiver for rents" under clause 6 (c) of the Mortgage Deed.  One of the reasons why Promontoria Eagle Limited was incapable of fulfilling the requirements of clause 2 is that Mr. Jackson the Mortgagor was declared bankrupt in the Belfast High Court in May 2012 and was a discharged bankrupt at the time of the purported appointment of Mr. Fennell as Receiver in August 2015."

Four letters of demand were sent by NALM, all dated the 2nd February, 2012.  The first of these relates to the facility letter dated the 9th February, 2007.  The second is concerned with the facility letter dated the 6th June, 2007.  The third is in connection with the facility letter dated the 28th December, 2007. The fourth is in connection with the facility letter dated the 26th January, 2010, renewed by a facility letter dated the 3rd March, 2010 and a facility letter dated the 9th April, 2010. 

Clause 11 in the mortgage provides that a receiver may be appointed on the occurrence of a number of events.  The first of these is default in payment on demand.  The second is "in case the Mortgagor shall during the continuance of this security become a bankrupt or if compelled to with creditors...".   At the time of the appointment of Mr. Fennell, both eventualities had occurred.  The entitlement to appoint a receiver had therefore been triggered, both by the bankruptcy of Mr. Jackson and by the unsatisfied demands made by NALM.  Both of these meet the requirements of the mortgage deed.  No authority or grounded legal proposition has been advanced by the Corcorans as to why Promontoria was unable to rely upon the demands made by NALM.

No legal authority has been put forward, or coherent argument advanced, by the Corcorans as to why Promontoria were unable to appoint Mr. Fennell as a receiver as he was a discharged bankrupt at the time. 

1E       "When Promontoria Eagle Limited acquired the Bank of Ireland Mortgage and the title to site number 6 Glenair Manor in June 2014, they were fully aware that a formal request in writing for Set-Off of the Judgement Registered against the site in December 2008 by McHenry Golf and the Order for Specific Performance granted in March 2013 had been made to the Statutory Receiver Mr. Stapleton, in January and again in February 2014.  Therefore they only paid a nominal amount in consideration for the Mortgage and title to the site.  This case is just an attempt by the Plaintiff to ignore and defy the two High Court Orders and thereby make an unjust profit."

Again, there is no legal reason why any notification to Mr. Stapleton affects the interests acquired by Promontoria.  In addition, Promontoria has not sought to defy any High Court order.  The order made in favour of McHenry Golf is, as we have seen, not one that enables Mr. Corcoran to override the security transfer to Promontoria.  Equally, both Mr. Stapleton and Mr. Fennell have called upon the Corcorans to comply with the order of Mr. Justice Murphy.  They have failed to do so.

1F        "In September 2009 prior to the hearing of the 2009 / 2759P proceedings, I met with two senior Bank of Ireland managers Jim Hackett and Jim Davidson, in order to make sure that they understood what was involved financially in completing the house.  A term was then included in the 'Terms of Settlement' requiring the Defendant to produce a letter from Bank of Ireland agreeing to fund the completion of the house.  During this meeting I was informed of the purpose and some of the details of the mortgage and from this discussion I have been able to calculate the maximum amount secured under the mortgage.  The funds generated from the sale of property in Glenair Manor by Peter Stapleton as Statutory Receiver is a matter of public record.  It is clear that the Mortgage was fully repaid prior to purported sale in June 2014.  Once the mortgage was fully repaid my Judgment took priority as the first valid charge over Site 6 Glenair Manor.  It is also clearly not possible to sell a mortgage that has been fully repaid and therefore not possible for Promontoria Eagle Limited to have appointed Ken Fennell as Receiver in August 2015."

No evidence was given by Mr. Corcoran about the meeting with Mr. Hackett and Mr. Davidson with the level of detail included in this pleading.  No evidence was given, as opposed to submissions made, about the full repayment of the mortgage.  In any event, given that the mortgage was an all sums due security and given that the debt to Bank of Ireland (assigned to NALM and subsequently to Promontoria) remains to be paid according to the evidence of Mr. Maher, this plea cannot succeed given the testimony before me.

1G       "In 2021 the Deed of Appointment for Peter Stapleton was provided to me by A&L Goodbody in the Enforcement Application in the 2008 / 547S proceedings.  It clarified for the first time that Peter Stapleton was appointed as a Statutory Receiver to immediately take possession of the sites in Glenair Manor, under the NAMA ACT 2009 Schedule 1 (Powers of Statutory Receiver) point 1, which states that a Statutory Receiver takes immediate possession of any secured asset.  This is directly contrary to what has been maintained by NAMA, Promontoria Eagle Limited and Ken Fennell in these and other proceedings.  The NAMA Substitution Motion in the High Court (2019) and the Court of Appeal (2020) was defended mainly based on the claim by counsel for NAMA (Kelley Smith) that Peter Stapleton never took possession of Site 6.  I also have the letter of resignation for Peter Stapleton as Statutory Receiver, which is dated the 15th January 2021.  Therefore Ken Fennell could not have been validly appointed as a Receiver in August 2015 as Peter Stapleton was still the Statutory Receiver in possession of Site 6 Glenair Manor."

There are a number of things about this.  In the first place, Mr. Stapleton gave evidence that it was his understanding that his position as statutory receiver lapsed when the assets were sold by NAMA to Promontoria in June 2014. This is correct. Precisely because Mr. Stapleton was a statutory receiver, his position cannot have survived the sale of the relevant security by NAMA I accept Mr. Stapleton's construction of his letter of the 15th January, 2021, which is that it refers back to a previous resignation.  The fact that Mr. Stapleton continued to seek to complete the contract which he had signed with the Corcorans does not mean that his position as statutory receiver, as a matter of law, persisted.  Mr. Fennell's appointment as receiver in August 2015 was effective.  With regard to the claim that the statutory scheme stipulates that Mr. Stapleton had taken possession of Site 6, however, as submitted by counsel for the Promontoria interests in her closing address (Day 7) Mr. Corcoran has never put forward any legal basis to support the proposition that the taking of possession by a receiver (statutory or otherwise) means that the security can not subsequently be sold. 

1H       "Because Peter Stapleton was the Statutory Receiver in possession of Site 6 Glenair Manor on the purported date of the appointment of Ken Fennell as receiver in August 2015, the only way he possibly could be validly appointed under the Mortgage terms was to replace Peter Stapleton, but this is not what is claimed by Ken Fennell and neither does the Deed of Appointment for Ken Fennell make the claim that he was replacing Peter Stapleton.  It is also clear that Peter Stapleton was not replaced as he only resigned in January 2021.  Therefore Ken Fennell was not appointed under the terms of the Mortgage."

This simply confuses the status of Mr. Stapleton and Mr. Fennell.  Mr. Stapleton was appointed as statutory receiver by NAMA.  NAMA sold the security.  Mr. Stapleton then ceased to act.  As Mr. Stapleton was a statutory receiver appointed by NAMA, he was not appointed as a contractual receiver by any entity under the mortgage.  There was therefore no need for him to be removed under the mortgage and, indeed, it would have been strange if Promontoria had purported to do so. 

1I         "Further to the Order of Justice Jordan for Discovery against Ken Fennell perfected on the 22nd February 2019, Ken Fennell was required under Category 1 to provide the demand letter served on Alastair Jackson, based on which Promontoria Eagle Limited claimed to have acquired the power under the mortgage to appointed (sic) Ken Fennell as receiver in August 2015.  The Affidavit of Discovery was eventually delivered on the 15th November 2019 and it verified that no letter of demand had been issued by Promontoria Eagle Limited to Alastair Jackson, therefore Promontoria Eagle Limited did not acquire the power to appointed (sic) Ken Fennell as Receiver in August 2015."

This is a repeat of the plea at 1D.  Just as with that plea, this aspect of the claim is bound to fail. 

1J        "Throughout these and other related proceedings, numerous claims have been made that Promontoria Eagle Limited acquired the Bank of Ireland Mortgage from NAMA as part of the Project Eagle Sale.  It has been established in the statement by John Collision, Head of Residential Delivery for NAMA at his appearance to give testimony before the Public Accounts Committee on the 25th October 2016, that NAMA retained the services of Hogan Lovells to provide all legal services and prepare all documents in relation to the Project Eagle sale.  It has also been established that Hogan Lovells prepared the two relevant documents being the 'Global Assignment Agreement' dated the 20th June 2014 and the 'Deed of Assurance of Mortgage' dated the 23rd June 2014 used by NALM to transfer the Mortgages that were secured on Irish property registered in the Registry of Deeds.  I have a copy of the Global Assignment Agreement and this document does not show that the said mortgage was sold as part of Project Eagle.  The Deed of Assurance of Mortgage prepared by Hogan Lovells has never been produced and therefore there is no evidence whatsoever that the mortgage was sold to Promontoria Eagle Limited."

This is inconsistent with the evidence of Mr. Hanly, which satisfies me that the Bank of Ireland mortgage was in fact included in the Project Eagle sale by NALM to Promontoria.  The statement by Mr. Collision is of no evidential value whatsoever.  The evidence of Mr. Traynor was persuasive and complete with regard to the role played by A&L Goodbody.  That evidence explains why it was that A&L Goodbody, rather than Hogan Lovells, prepared the deed of assurance. 

1K       "What has been produced by A&L Goodbody on behalf of Ken Fennell as evidence for the purported sale, is two different documents that they claim were 'Deeds of Assurance of Mortgage' but these were prepared by A&L Goodbody with different dates.  Neither of these purported Deeds were used to transfer the Mortgage in the Registry of Deeds as the relevant Form 1 used in the transfer by A&L Goodbody is recorded as being a 'Conveyance of a Mortgage'.  The excuse provided by A&L Goodbody for the different dates was that both Deeds were photocopies of the original and by accident different dates had been put on the documents.  This excuse was contradicted by Cathal de Barra the solicitor in NAMA whose signature appears on the two purported Deeds produced by A&L Goodbody.  He stated that he signed the same Document in duplicate and this is evidenced by the fact that the NAMA signature pages on the two documents are different and not a photocopy of the same Deed.  Therefore not only is there no evidence to show that Promontoria Eagle Limited acquired the Bank of Ireland Mortgage from NAMA as part of the Project Eagle Sale, in fact all the evidence available shows that the Mortgage was not sold as part of the Project Eagle Sale."

Again, Mr. Traynor's evidence has explained the rather pedestrian facts which had given rise to the two documents.  I have no doubt that the deed of assurance and the Form 1 which was the focus of the evidence were properly and responsibly authored.  Given the evidence of Mr. Traynor, I have no doubt that the mortgage was sold as part of the Project Eagle sale.

1L       "The Auditor for Promontoria Eagle Limited, PricewaterhouseCooper [PwC], has certified in the Audited Accounts for the year to December 2017 that '100% of the value of financial assets of the Company derives its value from properties that are secured on assets outside of the Republic of Ireland as at 31 December 2017.'  This statement is categorical and independent evidence that Promontoria Eagle Limited did not acquire the said MORTGAGE."

The evidence of Mr. O'Sullivan, as the person who signed the relevant accounts, was not disputed in any effective way and I accept it. It is absolutely clear why, on the basis of the valuation approach he described, the accounts for the calendar year 2017 are not in any way inconsistent with the acquisition of the relevant mortgage by Promontoria. 

1M      "In summary it is not possible for Ken Fennell to have been appointed as Receiver in August 2015 unless he can prove and provide the evidence to this honourable court to show that the Mortgage was not fully repaid.  Ken Fennell would also have to prove that Promontoria Eagle Limited acquired the mortgage as part of the Project Eagle sale and exhibit the relevant Hogan Lovells Deeds to evidence this claim.  He would also have to show how he could be appointed as a receiver, while Peter Stapleton was already the Statutory Receiver in possession of Site 6.  Ken Fennell would then need to show how Promontoria Eagle Limited acquired the power to appoint him, when he has already admitted in Discovery that they failed to comply with the requirements of the mortgage terms in this regard.  Lastly Ken Fennell has to overcome the Auditor for Promontoria Eagle Limited, who has certified that the company did not own the mortgage in December 2017."

All of this is a repeat of earlier points, none of which hold water. 

340.      Paragraph 2 of the defence denies that Mr. Fennell was validly appointed receiver in respect of certain assets of Eassda Ireland Limited.  The reasons for this are as follows: -

2A       "The Mortgage with Irish Nationwide Building Society is secured against lands in Ballyminion Co. Longford and not on site number 6 Glenair Manor.  On the 6th March 2012, Mr. Peter Stapleton was appointed by NAMA as a Statutory Receiver under the NAMA Act 2009 over Eassda Ireland Limited.  Mr Stapleton notified the Northern Ireland Company Register of his resignation as Statutory Receiver on the 2nd June 2016, stating that he had resigned on the 1st December 2015.  The Company Act 2014 provides for the removal and appointment of Receivers by Mortgage Debenture holders but does not provide for the appointment of a Receiver while a Statutory Receiver appointed under the NAMA Act 2009 is already in place.  Therefore the purported appointment by Promontoria Eagle Limited of Mr. Fennel (sic) is invalid because they did not first remove Mr. Stapleton as the Statutory Receiver.  These circumstances are not related to situations where two or more Receivers are jointly appointed as in this case, the Receivers in this situation had different powers and a conflict of interests in the performance of their duties."

This plea ignores entirely the fact that when NAMA disposed of the security, Mr. Stapleton was no longer able to exercise the power of a statutory receiver.  Whatever about his activities in relation to closing the transaction on 6 Glenair Manor, he was not occupying a legal position which would have obstructed the appointment of an alternative receiver such as Mr. Fennell on a contractual basis.  Again, no legal authority has been put up by the Corcorans to support the argument they make in this regard.  The first point in this plea ignores the fact, as was done for much of the hearing, that the instrument entered into by INBS and Keygo Properties Limited created a charge over the Ballyminion property and created a first floating charge over all the book debts, undertakings, and the property and assets of the company whatsoever and wheresoever both present and future.   The building agreement with the Corcorans was clearly caught by that charge.

2B       "Immediately after the notification by Mr Stapleton of his resignation as Statutory Receiver a Liquidator was appointed to Eassda Ireland Limited by the Belfast High Court on the 23rd June 2016.  This appointment of the Liquidator took place before the notification by Mr Fennell of his purported appointment.  Mr. Fennell delivered the notification of his appointment on the 6th October 2016 (over 14 months late) in breach of his legal obligation to notify the Northern Ireland Company Register within 7 days as contained within section 436 (1) of the Company Act."

There is nothing inconsistent with the appointment of a receiver to a company in liquidation.  I am unhappy about the proof provided to me of Northern Irish law.  That should have been done by a suitably qualified expert who was able to give evidence of the applicable law at the time of the appointment of Mr. Fennell.  Producing a printout from the internet is fraught with danger and, in any event, is not the way that foreign law is to be proved.  The flaws inherent in such an approach are on full display in this case.  Even if I was to accept at face value the printouts produced by Mr. Corcoran and put to the court, I am completely in the dark as to the consequences of any failure on the part of Mr. Fennell or his agents to "notify" his appointment within the specified time.  In particular, I do not know whether or not the appointment is invalidated as a result of such failure.  In any event, nothing in this plea sustains any of the case made on behalf of the Corcorans. 

2C       "The Notice of Appointment delivered to the Northern Ireland Company Register on the 6th October is invalid in that it falsely claims in section 4 subsection 2 that Mr. Fennell was appointed over 'the whole of the property undertaking of the company'  this is not true as the Debenture relates only to the Ballyminion property in Co Longford.  This is a deliberate attempt by Mr. Fennell to establish a claim to benefit from the Building Agreement for the construction of the House on Site number 6 in Glenair Manor, when it is clear that the Debenture does not grant any such claim.  The notification to the Northern Ireland Company Register of the appointment of Mr. Stapleton as Statutory Receiver on the 7th March 2012 correctly claimed that he was appointed over 'part of the property of the company' under the same Debenture."

The construction put by the Corcorans on the scope of the debenture is mistaken.  It does not relate solely to the Ballyminion property.  No legal authority was presented to me to establish that if the notice of appointment was misleading, then the appointment of Mr. Fennell was therefore invalid.

2D       "The appointment of the Liquidator to Eassda Ireland Limited by the High Court in Belfast on the 23rd June 2016, takes precedence in all respects in relation to Eassda Ireland Limited a company registered in Northern Ireland.  The Liquidator has jurisdiction and therefore authority over all matters related to Eassda Ireland Limited.  The only possible exception to this relates specifically to the Ballyminion Property that was secured against the Debenture under which Promontoria Eagle Limited claimed (which is denied) to have appointed Mr. Fennell as Receiver."

The debenture is not limited to the Ballyminion property.  No Northern Irish law has been proved before me in the proper way.  It is therefore impossible to conclude that the appointment of a liquidator takes precedence over the appointment of a receiver to the same company.  As a matter of the law of this State, the appointment of a liquidator would not take precedence of the appointment of a receiver on foot of a debenture such as the relevant one here.  In a way, that appears to be recognised by the Corcorans in that they acknowledge that a liquidator appointed to a company does not have precedence over a receiver where that receiver is appointed in respect of property secured under a debenture.  In any event, this plea is unstatable.

2D1     "On the 1st February 2022 the Liquidator (Mr. David Bell) for Eassda Ireland Limited officially informed me as a creditor, that he was applying to be released as Liquidator and there would be no dividend paid to creditors.  The company would be dissolved on the release of the Liquidator.  Ken Fennell cannot claim to be appointed Receiver over a dissolved company."

No witness gave any evidence of the pleaded communication from Mr. Bell to Mr. Corcoran.  It was, however, common case that the company is now dissolved.  Counsel for the Promontoria interests rely in this regard on the Powers of Attorney Act, 1996.  In doing so, she relied upon para. 12(a) of the INBS mortgage which reads: -

"The company by way of security hereby irrevocably appoints the Society and the persons deriving title under it and separately any receiver appointed hereunder severally to be its attorney in its name and on its behalf or otherwise and as its act and deed to do any act or thing and to execute, seal or deliver or otherwise perfect any Deed, Assurance, Agreement, Instrument..."

Section 20 of the 1996 Act provides: -

"Where a power of attorney is expressed to be irrevocable and is given to secure - a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest or the obligation remains undischarged, the power shall not be revoked... (ii) by the death, incapacity or bankruptcy of the donor or, if the donor is a body corporate, by its winding up or dissolution."

This meets the specific plea at 2D1.  The dissolution of Eassda Ireland Limited does not prevent the exercise by Mr. Fennell of the irrevocable power of attorney granted under the INBS Deed. 

2E       "Promontoria Eagle Limited did not fulfil the obligations required under the Debenture before purporting to appoint Mr. Fennell as Receiver.  Therefore the purported appointment is void."

This has not been elaborated upon in any way, and therefore the plea is not made out. 

2F        "Mr. Fennell as an experienced and professional Receiver for many years is fully aware of his legal responsibilities under the respective Company Acts both in the Republic or (sic) Ireland and Northern Ireland.  It is therefore astonishing to discover that Mr. Fennell is in breach of the obligations imposed on him under these Acts in relation to his purported appointment as Receiver in this case and no other.  Firstly he is required to notify the Company Registry within 7 days of his appointment.  He only notified the Company Registry on the 6th October 2016, over 14 months late.  He has also failed to fulfil his reporting obligation under the Company Act, whereby he must provide a report in the appropriate format ever (sic) 6 months.  It is reasonable to deduct from his actions and the failure by him to perform his duties in a professional and legal manner that he also did not consider himself legally appointed and therefore did not take his responsibilities seriously or at all."

This conclusion is completely at odds with the evidence given by Mr. Fennell.  I do not believe that it was put to him that he did not consider himself legally appointed and that, as a result of this view, he did not take his responsibilities seriously.  In the absence of putting this in some shape or form to Mr. Fennell, the plea cannot succeed.  In any event, the evidence given by Mr. Fennell was that he was comfortable with the validity of his appointment.  This is evidence which I accept. 

In the third paragraph of the Defence, there is a repetition of the plea at para. 1A in respect of para. 5 of the Statement of Claim.  I have already dealt with that.  However, the plea at para. 3 of the Defence goes on: -

"There is also no valid commercial reason for a Vulture Fund such as Cerberus to appoint a Receiver, through its Section 110 subsidiary Promontoria Eagle Limited, used by them to avoid paying Irish tax, over lands that they already owned other that (sic) to attempt to subvert the authority of the Irish High Court and the two granted Orders of the High Court being the Order for Specific Performance and the Judgment granted to McHenry Golf and now owned by the Corcoran's (sic) and which is registered against the site in Glenair Manor."

I have, more than once, found that it is the Corcorans who have failed to comply with the order of Mr. Justice Murphy.  They have never put up the money to pay for 6 Glenair Manor.  They have had plenty of opportunity to do so.  However I emphasise this portion of para. 3 of the defence because of the toxic suggestion that Promontoria and Mr. Fennell are being used by Cerberus (not a party to the proceedings) to avoid paying tax.  There is absolutely no evidence to that effect.  I find that there is no basis whatsoever for this plea, which should simply never have been made.

341.      Paragraph 4 of the Defence is effectively a denial.  Paragraph 5 of the Defence also denies a portion of the Statement of Claim and makes a plea with regard to the reason why the Corcorans alleged No. 6 was not built out.  Paragraph 6 of the Defence denies that para. 12 of the Statement of Claim gives a true representation of the facts.  (Paragraph 12 of the Statement of Claim recites the terms of settlement, inasmuch as they are thought to be material by the Promontoria interests.)  Paragraph 6A of the Defence accuses the legal representatives of Eassda Ireland Limited and Alastair Jackson of making "several gross misrepresentations to Justice Laffoy...". There is no evidence establishing this.  Paragraph 6B of the defence refers to the disqualification of directors of Eassda Limited (a different company, but including Mr. Alastair Jackson) and then makes a very serious allegation against Ms. White at 6C.  This is the plea: -

"... in a further perversion of the Terms of Settlement the Solicitor for the Defendants, Ms. Grainne White, in direct breach of the Terms of Settlement, unilaterally and without consent verbally directed the Independent Architect to ignore the agreed written instructions he had received in relation to his engagement as Independent Architect and instead instructed him only to prepare a snag list and certify when the snag list had been completed."

There is no evidence that this happened.  I therefore find that this plea on the part of the Corcorans has no basis.

342.          Paragraph 7 of the Defence traverses para. 13 of the Statement of Claim, which in turn asserts that Mr. Hanly confirmed that the relevant works had been completed by certificate of completion dated the 19th May, 2012.  Much of para. 7 of the Defence seeks to go beyond the judgment of Mr. Justice Murphy, which this court will not do.  It includes what, at this stage of the Corcorans' pleadings, is a sadly familiar phenomenon: the making of scurrilous and unfounded allegations against individuals.  For example, it is asserted at 7C that "no notice or opportunity was provided to inspect the premises prior to the issue of [Mr. Handy's document]".  In fact, Ms. White gave unchallenged evidence that the Corcorans were repeatedly asked whether they wished to have an opportunity to carry out an inspection.  Mr. Corcoran gave no evidence about this complaint.  Notwithstanding this, it was not suggested that this plea was now abandoned by the Corcorans. 

343.          Paragraph 7D of the Defence begins: -

"The real reason why Mr. Handy was retained by Mr Stapleton the Receiver and his solicitor Ms. White was an attempt to undermine the legal process."

In fact, as I understand it Mr. Handy was an independent architect agreed between the parties for the purpose of the terms of settlement.  On this basis, the allegation is simply baseless and should not have been made. The balance at para. 7D of the Defence sets out the complaint on the part of the Corcorans that Ms. White had reneged on an agreement to adjourn a hearing in May 2012.  This section of the Corcorans' pleading concludes by referring to Mr. Stapleton and Ms. White attempting to pull "a fast one".  As already noted, the account put to Ms. White makes little sense and was firmly denied by her.

344.          Paragraph 8 of the Defence responds to para. 14 of the Statement of Claim.  Paragraph 14 of the Statement of Claim recites the re-entry of the 2008 proceedings and the finding of Mr. Justice Murphy to the effect that specific performance of the settlement terms would be ordered and that the terms of the settlement were not breached, either by Mr. Jackson or by Eassda Ireland Limited.  Paragraph 8 of the Defence is essentially a collateral attack on that judgment, which is not permitted. 

345.          Paragraph 9 of the Defence denies that the Corcorans refused or neglected to close the purchase in accordance with the order of Mr. Justice Murphy, and asserts that a plea to that effect "is a blatant lie".  This use of language is completely unjustified.  As it happens, I have found that the Corcorans clearly refused to close the sale within the time stipulated by Mr. Justice Murphy, or within any reasonable extension of that time.  They were given every opportunity to do so.  They originally refused to engage, and then subsequently came up with a facile proposal that the sums due to be paid by them for the acquisition of No. 6 would be provided by means of a set-off.  Much of the balance of the details set out in para. 9 were either not the subject of evidence or are simply incorrect.  Of particular note is the plea at 9A to the effect that after the judgment of Mr. Justice Murphy (which is itself mischaracterised in this section of the pleading) "We heard nothing from the Statutory Receiver, Mr. Stapleton for several months..."; this is simply untruthful. Ms. White gave evidence, and Mr. Corcoran accepted it under cross-examination, that she had communicated with him seeking to close the sale and asking him to nominate a solicitor for that purpose.

346.          At paragraph 10 of the Defence it is pleaded that paragraph 17 of the statement of claim is "a gross misrepresentation of the facts." Paragraph 17 of the Statement of Claim reads: -

"17.     The receivers solicitors have called upon the Corcorans to complete the purchase of the Property and to pay the outstanding purchase consideration in the sum of €1,305,000 within a specified period.  Despite said amount, the Corcorans have failed, refused or  neglected to complete the said purchase."

347.          This plea is entirely accurate.  In response, a number of incorrect particulars are asserted at para. 10 of the Defence.  Other particulars in that paragraph of the Defence were simply not the subject of evidence.  For example, the meeting of February 2016 attended by Mr. Corcoran with two individuals from Deloitte was not the subject of any evidence by Mr. Corcoran. 

348.          Paragraph 11 is both the traverse of para. 18 of the Statement of Claim,  and also constitutes a plea that "false and misleading claims made in the Statement of Claim, should on their own give cause to this Court to reject all the reliefs sought."  Wisely, this last proposition was not advanced in any meaningful way by the Corcorans at the hearing. 

349.          Paragraph 12 of the Defence rejects Mr. Fennell's claim for damages for breach of the terms of settlement.  Tellingly, the Corcorans once again allege that both Mr. Fennell and Promontoria "are in breach of two High Court Orders."  There is no breach of the McHenry Golf order, for the reasons already described in this judgment.  However, and it is of some significance, Promontoria and Mr. Fennell could only be in breach of the Murphy order if it were the case that they were in a position to complete the sale of No. 6 to the Corcorans.  This would appear to acknowledge—not just here but on numerous occasions where this allegation is made—that the Corcorans accept that Mr. Fennell has the capacity to complete the sale of No. 6 Glenair Manor, and the entitlement to do so.

350.          As against that, at para. 13 of the Defence it is asserted that Mr. Fennell was not validly appointed as a receiver for the reasons set out in para. 1.  I have already gone through all of those. 

351.          Paragraph 14 is the last substantive paragraph of the Defence.  It says that Mr. Fennell is not entitled to have the building agreement between Eassda and the Corcorans set aside for the following five reasons: -

(a)        It is asserted that this order cannot be made because of a delay on the part of Mr. Fennell in notifying his appointment by over 14 months; there is no legal basis for this assertion.  Secondly, it is stated that the liquidator has priority in relation to the affairs of the company.  As a matter of law this is wrong.  As a matter of evidence, Mr. Fennell made it plain to me that the liquidator has never sought to assert any interest in monies due in respect of the building contract. 

(b)        Surprisingly, it is now asserted that this court has no jurisdiction to make any order in relation to the building agreement, as Eassda Ireland Limited is a Northern Irish company and the liquidator to that company was appointed by the "Belfast High Court".  A jurisdictional challenge of that nature should properly be made by the company, and not by the Corcorans.  In any event, no legal basis for this plea was ever advanced. 

(c)        It is again asserted that Mr. Fennell was invalidly appointed, for reasons already considered and rejected in this judgment. 

(d)       The Company's (sic) Act, it is asserted, does not grant a receiver the right to disclaim a contract.  However, Mr. Fennell is seeking a court order (which any party to a contract or their representative could seek) to the effect that the contract is at an end because of a failure by the counterparty to complete the contract. 

(e)        Confusingly, in returning to the assertion that Mr. Fennell is in breach of two High Court orders, he is described as "the party in breach of the two High Court Orders."  This seems, by implication, to accept Mr. Fennell's status as the agent of Eassda Ireland Limited and Mr. Jackson in respect of the completion of the sale of No. 6.  This plea is wrong, and it is quite inconsistent with the other plea made on numerous occasions to the effect that Mr. Fennell is not validly appointed as receiver either to the relevant assets of the company or of Mr. Jackson. 

352.          The Defence is accompanied by a three-page Counterclaim.  This Counterclaim seeks damages.  As is submitted by counsel for the Promontoria interest, Mrs. Corcoran gave no evidence whatsoever of any damage suffered by her.  While Mr. Corcoran gave evidence of monies expended on No. 6 Glenair Manor, there was no real attempt to link that expenditure with the damages claimed under the various headings in the counterclaim.  These would be fundamental difficulties in the ordinary case, but are not the greatest difficulties faced by the Corcorans in advancing their counterclaim. 

353.          Paragraph 16 of the Counterclaim seeks an order for set-off of the judgment granted to McHenry Golf against the order for specific performance of the contract for sale of No. 6.  For the reasons already given, no such set-off is appropriate and therefore no such order will be made. 

354.          Paragraph 17 of the Counterclaim seeks damages under a number of headings. 

17.1     The Corcorans seek damages for the delay on the part of Mr. Fennell and Promontoria "in refusing to deal with this matter and in particular the refusal to deal with the request for set-off...".  Again, this claim is based on the premise that Promontoria and Mr. Fennell have acquired the rights that they claimed they have in respect of the property.  In any event, I am not satisfied on the evidence that Mr. Fennell and Promontoria refused to act appropriately in respect of the sale of No. 6.  After the judgment of Mr. Justice Murphy, the Corcorans were called upon to complete the sale and they never did so.  Mr. Fennell, through his solicitors, asked the Corcorans to complete the sale and again this was not done.  On a related issue, there is no obligation on the part of Mr. Fennell or Promontoria to acknowledge as valid the request for set-off.

17.2     The Corcorans seek damages "for the fact that the Defendants have been prevented from enjoying their home..."  That is entirely their own fault.  Had the Corcorans closed the sale as directed by Mr. Justice Murphy they would have been in 6 Glenair Manor for the last 11 years. 

17.3     Extraordinarily, the Corcorans seek damages arising from the meeting in February 2016.  It is pleaded that, at this meeting, Mr. Corcoran was "subjected to threats and attempts were made to pressure me in foregoing any and all rights to the property and allow the Receiver Mr. Fennell to effectively steal the property...".  As noted on several occasions, Mr. Corcoran gave no oral evidence about this meeting.  There was no evidence whatsoever before me that Mr. Fennell was attempting to steal anything.  Yet again, this is a scandalous and unjustified pleading which should never have been made and which should have been withdrawn long before now.

17.4     The Corcorans seek damages at €40 per week for the costs of storage of furniture "specifically purchased for the house in 2006/7 and which has been in commercial storage".  Given that it was the Corcorans' own fault that the sale did not close, this is a logically and legally a claim that cannot succeed. In any event, no evidence of any sort, let alone the sort of documentary evidence one would expect, was given in connection with it. 

17.5     Paragraph 17.5 seeks damages in relation to the undermining of the authority of the High Court and the alleged circumvention of two orders of the High Court.  As repeatedly set out in this judgment, there is no basis for any such finding.  Even if such a finding were to be made, no legal basis for the award of damages has been advanced by the Corcorans. 

17.6     Paragraph 17.6 of the Counterclaim seeks damages against Mr. Fennell "personally" for rents collected from two different tenants "while he was trespassing on the property and unjustly enriched himself and Promontoria Eagle Limited." .  Of course, the property was not owned by the Corcorans at the time.  If anyone was to make a claim of trespass against Mr. Fennell it would be Mr. Jackson.  As already noted, one fact which dominates the landscape of this litigation—but which is easy to forget in considering points of detail—is that Eassda Ireland Limited, the liquidator of that company, Mr. Jackson, and the relevant bankruptcy official in Northern Ireland have never complained about the activities of Promontoria or Mr. Fennell, or, indeed, the activities of Mr. Stapleton and NALM.  It simply does not lie in the mouth of the Corcorans to assert property rights which they never acquired, as they never offered to pay for the relevant property notwithstanding the order made by the High Court.

355.          Paragraph 18 of the Counterclaim reads: -

"18.  So why has Ken Fennell and Promontoria Eagle Limited gone to such great lengths and fraudulently misrepresented the facts in several High Court proceedings and fabricating Deeds as evidence.  The reason is that Promontoria Eagle Limited could not admit that they purchased the Land as part of Project Eagle and therefore they fraudulently claimed that they purchased the mortgage.  If they admit that they purchased the Land or this Honourable Court finds that they did in fact purchase the Land, they would not be eligible to claim Section 110 tax benefits and pay no tax, costing them over €100 million in taxes on their profits.  This is why A&L Goodbody on behalf of Promontoria Eagle Limited has gone to such great lengths to both hide the truth and cover up the evidence of this tax fraud."

356.          It is necessary to be very clear about this plea.  In his cross-examination on Mr. Fennell, Mr. Corcoran tried to avoid the fact that this plea was made at all.  Towards the end of the hearing, he resiled from the accusation that Mr. Fennell had fabricated documentation—stating that he would not know how to do so—and instead alleged that A&L Goodbody had fabricated documentation on behalf of Mr. Fennell.  There is not an iota of evidence to support any of these contentions.  They are absolutely wrongheaded.  They should never have been made without proof.  However, when it became clear during the course of the trial that any proof that the Corcorans may have sought to adduce in respect of them was not forthcoming, the allegations should have been unequivocally withdrawn and apology tendered to Mr. Fennell, Promontoria, and A&L Goodbody.  The fact that this was not done reflects very badly on the Corcorans. 

357.          It should also be said that para. 18 does not even set up a counterclaim.  It is a plea made for the apparent purpose of abusing the persons mentioned in it.  The Corcorans do not seek damages against anyone on foot of this plea.  The making of the plea constitutes an abuse of process of the court in that it involves the advancing of scurrilous and unfounded allegations on an occasion of absolute privilege.  A similar observation might be made about para. 19 of the Counterclaim, which, like para. 18, was inserted after the order of Mr. Justice Sanfey of February 2022.  It again makes allegations about the reason for the appointment of Mr. Fennell as receiver, the motivation of Promontoria, and the alleged covering up of tax fraud.  There is not a whit of evidence for any of this.  Notably, the allegation of tax fraud was not put to Mr. Fennell or to any of the Promontoria witnesses. 

358.          Paragraph 20 relates to Whitfield Court.  The conclusion of this plea was to this effect: -

"I now want this Honourable Court to grant me leave to Appoint a Receiver by way of Equitable Execution over this property due to the fraudulent misrepresentation of the legal position in relation to Glenair Manor and Whitfield Court."

In the alternative, the Corcorans seek damages of €1,375,000 "as compensation personally from Ken Fennell for the direct loss I have suffered as a result of this fraud."

359.          Fraud must be pleaded specifically. There has been no coherent description in the pleadings of any fraud in respect of Whitfield Court.  There has been no evidence given about the alleged damages suffered by the Corcorans or either of them in respect of that alleged fraud, nor is there any evidence of the fraud itself.  The plea at para. 20 (to the effect that Mr. Corcoran "was prevented from enforcing my equitable rights to appoint a Receiver by means of Equitable Execution over the Whitfield Court site ..." ) was not subject to any evidence.

360.          Paragraph 21 of the Counterclaim refers to the issuing of proceedings in July 2017 by Mr. Fennell seeking to prevent Mr. Corcoran from interfering with the renting of 6 Glenair Manor.  No damages are expressly sought for the issuing of these proceedings.  Instead, this paragraph concludes: -

"This is just another example of the lies that have been misrepresented as facts to the High Court in the series of proceedings."

Paragraph 22 of the counterclaim complains that these proceedings were discontinued "to make sure that their underhanded tactics and lies to Justice Gilligan would be buried."  However the discontinuance of the 2017 proceedings arose, on the basis of the facts presented to me, simply because Mr. Fennell and his solicitors became aware of the letting of the premises to Mr. Prestage.  As I have already indicated, there is no doubt that these proceedings should never have been commenced.  Mr. Fennell should certainly have displayed some level of regret for the fact that the court's time was wasted by the bringing of an application which was pointless and unnecessary.  However, I accept the evidence of Mr. Fennell that he was unaware of the letting.  I also accepted the evidence that Mr. Corcoran sought for no good reason to interfere with the letting of the premises, even going to the extent of threatening ( in an entirely inappropriate way) the letting agents involved.  Even if any relief was sought on foot of paras. 21 and 22 of the counterclaim, this would appear to be a claim under the rubric of malicious prosecution.  In Dorene Limited v Suedes Ireland Limited [1981] IR 312 Costello J. set out (at p. 316) the essential ingredients of the tort of malicious prosecution as follows: -         

"The authorities, it seems to me, establish that a claim for damages at common law will lie for the institution or maintenance of a civil action if it can be shown that the action was instituted or maintained (a) without reasonable or probable cause (b) maliciously and (c) that the impugned action was one which the law presumes will  have caused the claimant damage."

361.          Here, there is no evidence to suggest that the 2017 proceedings were instated maliciously.  They were instituted, rather, as a result of a breakdown in communication between the new letting agent and Mr. Fennell's office.  With regard to the requirement at (c), within hours of Mr. Corcoran notifying A&L Goodbody of the letting to Mr. Prestage he was informed not only that the motion would be adjourned but also that counsel for Mr. Fennell would look after the adjournment, thereby negating any need for Mr. Corcoran to travel for the court hearing.  The motion had been adjourned from late July into October and the proceedings were discontinued over the Summer.  Mr. Corcoran has not given any evidence that the proceedings caused him any damage, nor has he seriously contradicted the account given by Mr. Fennell as to why they were initiated in the first place.  The pleas at paras. 21 and 22 of the Counterclaim, therefore, do not give rise to any relief against Mr. Fennell.

362.          For the reasons set out by reference to each of the paragraphs of the Corcoran's Defence and Counterclaim, I have decided that they are not entitled to any relief on the Counterclaim and that nothing pleaded in the Defence constitutes any reason why Mr. Fennell is not entitled to the primary relief sought by him in the main proceedings, namely an order that the contract for sale made between Alastair Jackson and the Corcorans dated the 4th August, 2005 is at an end and an order that the building agreement made between Eassda Ireland Limited, Alastair Jackson, and the Corcorans dated the 4th August, 2005 is at an end. 

The Motions

363.          The motion with regard to the appointment of a receiver to the plot at number 6 can be dealt with briefly.  There are two simple reasons why this application will be rejected.  In the first place, it would be pointless.  Mr. Fennell is validly appointed as receiver.  Appointing a second receiver over the land would simply result in a hopelessly confused situation.  Mr. Corcoran has not suggested how, in the event I find that Mr. Fennell's appointment is valid, there would be any advantage to the Corcorans in appointing another receiver.  In the second place, the stated position of the proposed receiver is that he proposes to close the sale to the Corcorans by applying the set off.  This cannot legally or properly be done.

364.          As to the second motion (to appoint a receiver over the open space on the estate), I have reluctantly come to the conclusion that this cannot be decided without knowing the position of Wicklow County Council.  There was some evidence about the local authority having taken the estate (or part of it) in charge, but whether that includes the open space is uncertain.  Mr. Corcoran was careful to draw a distinction between common areas and the open space.  It is only the latter of these that is relevant to the current motion.  I did raise with the Corcorans the question of service of this motion on Wicklow County Council.  While an affidavit of service was provided, I have concerns (i) about its contents (it does not state that the registered letter to Wicklow County Council was not returned); (ii) the notice given to the local authority (Mr. Corcoran did not address me as to whether the notice given, which was a matter of days over a weekend, complied with the Rules of the Superior Courts despite the fact that I raised the issue) and (iii) whether the county council was informed of any adjourned dates.  In particular, it would be expected that Wicklow County Council would have been told of the date when the motion was listed for hearing.  It would have been open to me to dismiss this motion because of the lack of these basic proofs.  However, to do so may be unfair on the Corcorans and, when the question of the notice to Wicklow County Council arose at the trial, my initial position was that this should not be fatal as far as the Corcorans were concerned.  When this matter is next before me I will hear what the Corcorans suggest about the notification of this motion to Wicklow County Council.

Conclusion

365.          I will make orders in terms of reliefs 20 and 21 of the Statement of Claim in the 2016 proceedings. As the claim for damages by Mr. Fennell was not pressed at the hearing, and more especially as no relevant evidence was put forward on his behalf, I will dismiss the receiver's claims for damages. I will dismiss all elements of the counterclaim of the Corcorans. I will dismiss the motion for the appointment of a receiver to the land at number 6 Glenair Manor. I will consider further at the hearing on the 13th of December the service on Wicklow County Council of the motion in respect of the open space. Costs of all these applications will be considered at that hearing.

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