Judgment Title: Whelan & ors -v- Allied Irish Bank Plc & ors
Neutral Citation:  IESC 3
Supreme Court Record Number: 51/12
High Court Record Number: 2010 6866 P
Date of Delivery: 30/01/2014
Court: Supreme Court
Composition of Court: Fennelly J., O'Donnell J., MacMenamin J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 051/2012
High Court Record No. 2010 6866P
Judith Whelan, Therese Lynch, Philip Lynch, Eileen Lynch,
Philipa Lynch and Paul Lynch
Allied Irish Banks p.l.c., Matheson Ormsby Prentice Solicitors,
And LK Shields Solicitors
Judgment of Mr Justice O’Donnell delivered the 30th day of January 2014
1 On the 8th of February 2007 in the offices of the firm of A & L Goodbody the solicitors to Allied Irish Banks (hereinafter “AIB” or “the bank” and the first named defendants herein), the first named plaintiff, Judith Whelan, on her own behalf and on behalf of her siblings (the second, fifth and sixth named plaintiffs), her mother (the fourth named plaintiff) and her father (the third named plaintiff, a well known and very successful businessman), entered into a deal together with another then successful businessman, Mr Gerard Conlan, for the joint purchase by them of 86 acres of land at Kilbarry, County Waterford. Crucially for the purposes of these proceedings, the transaction completed that day also involved the execution and acceptance of a facility letter providing for the advance to the plaintiffs and Mr Conlan of the purchase price of €25 million by AIB and the execution of a deed of charge securing the lands in respect of the same borrowings.
2 The transaction was one that appeared very advantageous, and if it had been known at the time, might perhaps only have excited the envy of any onlooker. The land in question was very likely to be rezoned, having been included in a draft development plan for County Waterford, and on rezoning and the securing of planning permission, it would almost inevitably have become worth a significant multiple of its purchase price. Indeed, even as the transaction was being negotiated, the value of the land was increasing. The transaction was estimated as likely to produce a profit to the Lynch side of up to 20 million euro in a relatively short period of time. It was anticipated that it would have been eminently possible to rapidly sell a portion of the lands, discharge the loan, and then consider whether it was more advantageous to sell the remaining lands in parcels, or to seek to develop the land and secure even more profits, or to do some combination of the two. The purchase itself was to be financed entirely by the loan, and there was no requirement on any member of the Lynch family or Mr Conlan to risk any of their own funds.
3 Those who contend that the free market system promotes efficiency and rewards enterprise might find it difficult to explain why such potential profits were being made available to members of the Lynch family who had contributed nothing to the sourcing of the land, to the proposals for its development, or the securing of rezoning or planning permission. They were involved in the transaction because of their family relationship to Philip Lynch, and he in turn was involved in the transaction because of his substantial net worth, and his association with Mr Conlan.
4 Indeed, it is contended by the Lynch family, including Mr Lynch himself, that this transaction was a particularly advantageous one because they argue that the loan itself was a non-recourse loan, meaning that they believed that in the unlikely event of default, the lender would look solely to the security of the land itself and would not seek to recover any shortfall from the individual borrowers. This is one of the central issues in this case. But even assuming for the moment that this was not so, this was still a very attractive transaction for the members of the Lynch family with, it appeared, little if any downside risk. Indeed, that is no doubt why Mr Philip Lynch sought to secure their involvement therein. Before there could be any risk to the individual family members (even on the assumption that the loan was not non-recourse) there would first have to be a dramatic fall in the value of the property bringing it below the price paid (and borrowed). Even if there was some shortfall in this regard, as a matter of practicality it was highly likely that either or both Mr Conlan and Mr Lynch, themselves enormously successful and apparently wealthy individuals, would be in a position to discharge any liability for any shortfall. Accordingly, before there could be a real risk to any of the individuals, there would have to be a total collapse in the property values in Ireland, and a dramatic and total destruction of the wealth of those two individuals. Looked at in 2006 and 2007, it would have been reasonable to assume that such an unlikely combination of events could not occur, could it? We now know better.
5 This transaction, which appeared to promise considerable profit, has become a disaster, not only for the individuals involved but also for the professional advisors whom they seek to blame. Following judgment against the plaintiffs on the 11th January 2012 Peart J. made an order in favour of the bank, against all the plaintiffs, for the sum of €26,194,554.90 with interest accruing at a rate of more than €2,262.59 per day. It appears to be common case that at that time at least, the land itself had a value of less than €5 million. The High Court also dismissed the plaintiffs’ claim in negligence against the two firms of solicitors and the plaintiffs therefore became jointly liable for the costs of the successful defendants in what had been a very hard fought and contentious 27 day hearing in the High Court. The plaintiffs now appeal to this Court.
6 The decision of the High Court is contained in the comprehensive and careful judgment delivered on the 8th December 2011. A very full account of the events giving rise to the execution of the loan and the transfer of the land on the 8th February 2007 is contained in that judgment which should be read together with this decision. In the circumstances, I will seek to limit this recital of the background facts to those incidents which appear critical or which are in controversy in this appeal. Even so, it is a necessarily lengthy account.
7 It should be said at the outset that of the dramatis personae involved in the process, Mr Conlan was not joined as a party to the proceedings and neither he nor his associates, Mr Conor Gunne and Mr Richard Godsil, were called as witnesses by the plaintiffs. While AIB was a defendant in the proceedings, a decision was taken in the course of the case not to call evidence and accordingly Mr Derek O’Shea, the official in the bank involved in the loan and responsible for a significant change to the facility letter on the 7th February 2007 (the day before the loan was executed), was not called, nor indeed did the court hear from Mr Alan Roberts, the solicitor in A & L Goodbody advising AIB and Mr O’Shea, and who had some contact with Matheson Ormsby Prentice, the firm then acting for the purchasers of the land. This account of the events should therefore be read in the light of the fact that although documentation referring to these individuals was admitted in evidence, they did not give evidence to the High Court, which accordingly did not hear from these persons who, it will become clear, were significant participants in the events the subject of these proceedings.
9 It now transpires that it appears Mr Conlan needed Mr Lynch, or someone like him, if he was going to be able to complete the deal. Although very wealthy, he was over extended with AIB and might not have been in a position to borrow the money for the transaction on his own and he was apparently anxious therefore, for his own reasons, to involve Mr Lynch. Much was sought to be made of this on behalf of Mr Lynch in the course of these proceedings but the trial judge, correctly in my view, was not prepared to draw any sinister inferences from the emergence of this information, particularly in the absence of Mr Conlan. The fact that Mr Conlan may have had his own undisclosed motives for seeking to involve Mr Lynch in the transaction is not inconsistent with a genuine belief on his part that this would be a beneficial deal for Mr Lynch. It is also difficult to believe that Mr Lynch would have been particularly surprised at the time to learn that the transaction was one in which Mr Conlan saw some benefit for himself. The fundamental issue for the Lynch interests was the assessment of the transaction on its merits, and at the time it must have looked very attractive. That fact, rather than any belief as to Mr Conlan’s financial position, is no doubt why Mr Lynch became involved for himself, and thought it would be a suitable vehicle for generating wealth for his family.
10 In mid 2006 matters had progressed to the point where Mr Conlan had executed the contract, a deposit had been paid to the vendors and Mr Lynch had himself contributed €2.5 million as his half of the deposit which was to be, and was, ultimately repaid from the loan. From the evidence he gave to the High Court it appears that Mr Lynch regarded his position at that stage as one which generated only benefits and no obligations. He appears to have considered that he was not obliged to complete the transaction but could do so if he wished. Furthermore, even if he withdrew, he appears to have considered he would still have been entitled to participate in any intervening uplift in the value of the property. It is not necessary to conclude if he was correct in this regard. The fact is that he did complete the transaction.
11 As the contract was executed by Mr Conlan in March 2006 “in trust”, the identity of Mr Conlan’s co-investors was not known to the vendors until shortly before closing on the 8th February 2007. The contract had provided for a closing date of the 31st December 2006. Although that nine month time period provided ample time to seek finance and to structure the deal, very little was in fact done by the Lynch side until almost the last moment. They appear to have been content to allow the Conlan side to make the arrangements. Mr Conlan had a longstanding relationship with Matheson Ormsby Prentice and had negotiated a reduced rate for conveyancing transactions. That firm had been instructed by him in relation to the conveyancing of the Waterford lands. Ultimately Mr Lynch and his family were named as co-owners and paid 50% of that firm’s fees. Mr Conlan also had a relationship with AIB and it was to that institution which he looked for finance. After some desultory consideration of whether a loan might be obtained from another source, the Lynch side accepted that the finance would be provided through AIB. In reality, it appears that Mr Conlan’s side made the running on the transaction in relation to the acquisition of the land and its financing and the Lynch side (originally Mr Lynch alone), was to take a half share of, and half the responsibility for, whatever was negotiated.
12 The central feature of this case is the Lynch family’s contention that they would not have entered the agreement on the 8th February 2007 if they had understood that the loan being advanced was not a non-recourse loan. Here, as elsewhere, Mr Lynch does not distinguish between his own position and that of the other family members. The main factual contention is Mr Lynch’s assertion that if he had understood that the loan was recourse to him, he personally would not have entered the agreement and the transaction would not have occurred. The key evidence relied upon in this respect relates to conversations which took place on the 7th February 2007 on the eve of the closing when Mr Lynch was in transit through Heathrow airport on his way home from a business trip. There is no evidence however, that either at this stage or later Mr Lynch or anyone on his behalf made it clear either to the Conlan side, or still less to AIB, that Mr Lynch wanted, indeed if his evidence is to be accepted, had an absolute requirement for, a non-recourse loan. This is only one of the features of the case which the learned trial judge found difficult to reconcile with Mr Lynch’s evidence that he would not have entered the transaction unless it was a non-recourse loan. Nevertheless Mr Lynch maintained, and the trial judge appears to have accepted, that at least by the eve of the closing of the transaction, he had made a firm decision that he would not complete the transaction if it involved the possibility of recourse to him or his family in the event of default. This finding is central to the plaintiffs’ case and was the focus of much attention on this appeal.
13 During 2006 Mr Lynch gave some consideration to utilising the Waterford transaction as a vehicle for family wealth management, that is, passing wealth on to, or in this case generating wealth for, the members of his immediate family. Accountancy advice was obtained and various investment structures considered. One, if not indeed the sole purpose of the advice was, it appears, to ensure that the transaction could be carried out in a tax efficient way. Although no detail of the advice has been provided, it seems apparent that the thrust of the advice was to seek to avoid either two layers of tax being incurred or an unnecessarily large liability being incurred by the family members in the event that the investment was successful. In very simple terms, if the family members were included as participants in the transaction at the outset, then that would assist in making them liable to pay tax only on the increased value of the investment. From the outset therefore, it was the advice given to the plaintiffs, and their clear objective, that all the Lynch family members were to be borrowers of the monies advanced. However, it is noteworthy that this tax strategy meant the family members would have to become participants in their own right in the transaction, and crucially, in the loans.
14 It is worth observing at this stage that what appeared initially to be a relatively straightforward transaction for the acquisition of land was becoming more complex. First, it was of course necessary to ensure that the land could be securely transferred to the acquiring parties. Furthermore, it was necessary that there should be an ownership agreement regulating the relationship between Mr Conlan and Mr Lynch (and later the Lynch family) to deal with the situations which might arise if there was disagreement as to the best method by which to exploit the acquisition. In addition, Mr Conlan was seeking a “carry”, that is that either the ownership of the investment, or the distribution of profits, should be apportioned more favourably to Mr Conlan than to the Lynch side because he had found the transaction and brought it to them. All of this was something that required some commercial negotiation and legal assistance in relation to the format of any agreements. In addition, Mr Lynch wanted the transaction to be a vehicle for wealth management within his family, an objective which understandably he wished to achieve while minimising the taxation payable. Furthermore, it is said that he wished that any finance for the transaction should be available on specific terms, and particularly, should not involve any potential liability for him or his family. Finally, there was the possibility that some or more of the participants might seek to structure their investment through some corporate vehicle.
15 While none of these matters may have posed particular difficulties on their own, the combination, particularly when required to be performed under pressure of time, made this quite a complex transaction, although that was not necessarily recognised at the time. The complexity was compounded somewhat because the structure most likely to minimise tax was not necessarily commercially desirable since it involved exposing the members of the family to a joint liability on a very substantial loan. Nevertheless, no step was taken by Mr Lynch or on his behalf to retain separate legal advice during 2006. The third defendants, LK Shields, a firm with which Mr Lynch had a long standing relationship, were retained in the middle of January 2007, two weeks after the original closing date and three weeks before the transaction in fact closed, and given the limited brief of dealing with the co-ownership agreement. Indeed, even at that stage it appears that Mr Lynch had not finally decided to proceed with the transaction.
16 On the 22nd December 2006 AIB issued a document referred to as “Heads of Terms” setting out details of the loans and containing special conditions including requirement of a net worth statement from Mr Lynch and “full joint and several personal recourse”. This, it should be said, is consistent with other internal AIB documentation around this time. The significance of the Heads of Terms document for these proceedings however, is that it was emailed to Mr Robert Burns, the assistant to Mr Lynch, by Richard Godsil who was acting in a similar capacity for Mr Conlan.
17 It appears that Mr Burns did not revert to Mr Godsil. Around that time he was in Spain with Mr Lynch and other members of Mr Lynch’s company, “One 51”. Mr Burns discussed the matter with Mr Lynch and it appears that this discussion generated a handwritten memorandum of the 4th January 2007 containing somewhat enigmatic terms:
→ What value Now to go? 50 million
→ Talk to Godsil now about going
→ Play to Godsil
→ Impact elsewhere.
→ Divert problem.”
On the handwritten note there is also an arrow joining the line “Not NR/Joint + Several: Fall Apart” to the line “Impact elsewhere”. The plaintiffs place reliance on this document as supporting their contention that they at all times understood the loan to be, or to be required to be, non-recourse. Whatever this discussion involved however, it did not result in Mr Burns or anyone else on behalf of the Lynch interest contacting anyone on the Conlan side, or in AIB, to seek a non-recourse loan and if one was not available through that source, then to seek such a loan elsewhere.
18 At this stage it was thought that the deal was due to close imminently since the closing date on the contract was the 31/12/2006. On the 8th January 2007 Mr Burns emailed Mr Lynch in the following terms:
Have you had any further thoughts on Waterford land? Godsil plans to close the contract on Wednesday. I am working with Marion on the equalisation among the family in case you want to proceed with it.”
20 AIB prepared a first version of the loan facility letter of the 9th January 2007 in which it named the borrowers as Mr Conlan and Mr Lynch alone and did not limit recourse in any way. However, the evidence was that this version of the facility letter was not seen by the plaintiffs until 2009.
21 On the 16th January 2007 the matter became more urgent. Matheson Ormsby Prentice received a completion notice from the vendors dated the 12th January 2007. That notice required that the sale be completed within 28 days from the date of service thereof, and accordingly, that the sale was to be completed on or before the 13th February 2010. However, Mr McLoughlin, in a letter of the 31st January 2007 to LK Shields (who were by now acting for the Lynch family in relation to the co-ownership agreement), stated that the completion notice had been received and that it was “incumbent upon us to complete this transaction no later than Thursday 8 February”. Mr McLoughlin has explained both in correspondence and in evidence that he gave this date as a precaution “in order to concentrate minds”. On the same day as Matheson Ormsby Prentice received the completion notice, AIB produced a second version of the facility letter in which the borrowers were now named as Gerry Conlan, Philip Lynch and the Lynch children. Again this version was not formally issued to the borrowers. The following day Mr Burns made contact with Mr Emmet Scully of LK Shields in relation to that firm acting for the Lynchs in respect of the co-ownership agreement then being drafted by Ronan McLoughlin of Matheson Ormsby Prentice. It was apparent that Matheson Ormsby Prentice could not act for both sides in the preparation of that agreement.
22 By the 17th January 2007 therefore, LK Shields had been retained to represent the Lynch family on the co-ownership aspect of the transaction. LK Shields had a long standing relationship with Mr Lynch. The initial point of contact within the firm was Emmet Scully who passed the matter to Mr Jim Gollogley, his partner. An internal memo from Mr Scully to Mr Gollogley of that date refers to the most sensitive issue being the “carry”. The memo informed Mr Gollogley that he would need to liaise with Robert Burns closely on that aspect. What is significant about this document, as the trial judge observed, is that there was nothing to indicate that LK Shields were informed by Robert Burns or anybody else on the Lynch side that issues surrounding recourse and joint liability to the AIB loan were yet to be addressed, or were important, or indeed that the transaction might not proceed at all, if that was the Lynch’s position.
23 There was a meeting of the Lynch family on the 26th January 2007. Robert Burns prepared a memorandum in which he said that the balance of the purchase price together with stamp duty and fees was being “financed through a loan with AIB secured on the land itself”. The trial judge found, with ample justification, that there was on the Lynch side, and indeed elsewhere in this transaction, very considerable confusion as to the distinction between the concept of security on the one hand, and the question whether there would be recourse to the individual borrowers on the other. Nevertheless the plaintiffs rely on this reference as reflecting their belief at all times that the loan was to be non-recourse.
24 By the 2nd February 2007 LK Shields had still not received the facility letter. On that date, Robert Burns sent an email to LK Shields clarifying certain matters. Of particular significance was the following aspect:
25 On the evening of the 2nd February LK Shields emailed Robert Burns to ask if he knew when the facility letter was issued as Matheson Ormsby Prentice (with whom LK Shields were now in contact) had not received it. The following day Robert Burns emailed LK Shields stating that he was under the impression that the bank had reissued the loan facility with the names of the Lynch children included in it. This was indeed the case, although at this time the facility letter did not appear to have made its way formally to the Lynch side. This exchange illustrates the fact that it is likely that a number of the participants were in direct phone contact with each other and may, by that process, have known more about the progress of the transaction than the documentary evidence now available would necessarily record.
26 As it happened, on the 3rd February 2007 Judith Whelan took up an employed position in relation to the family’s business and financial interests. One of the first things that she had to deal with was the Kilbarry land purchase. Robert Burns was due to go to Switzerland, on business with Mr Lynch, and was not due to return until the evening of Wednesday 7th February, the day before the closing date nominated by Mr McLoughlin. He sent an email to Judith Whelan updating her on the current position. It is necessary to set that email out in full since it records Mr Burns’ understanding of the transaction at a key point just before closing, and can be taken to represent Ms Whelan’s understanding at that time:
Only picked up your message, I’m tied up during Monday but if you want to go ahead with Jim [Gollogley of LK Shields] that’s great to move it along.
The key is that Richard Godsill (Jerry Conlons manager) wants to take the 20% profit carry on a per acre basis. This needs to be redrafted with effect that bank debt is cleared first, then expenses, then remaining equity due to investors and finally the carry to be paid.
Richard has approached it this way as he sees a 3 year timeframe to dispose of the land and wants to take profit as he goes. However as the debt is joint and several to everybody it is critical that it gets taken out as quickly as possible.
Marion [Ernst and Young] is upto speed on events to date with the exception that the profit share has now been altered on the Lynch side. The deal was signed in trust by jerry conlon last March so there are no issues as to who goes on the final contract on Thursday.
The bank (AIB) should issue the loan letter with all your names on it as borrowers. If needs be Philip will need to guarantee the Children’s borrowings but to date the bank have not yet requested it.
Give me a call anytime Monday to run through anything on it.”
28 There was considerable work to be done by the respective firms of lawyers to be in a position to close the transaction, both in finalising the arrangements and putting them into legal form. While the focus of this case has been on the issue of the extent to which the agreement provided for recourse to the individual borrowers and what was said in relation thereto, that was only one of the issues which arose over this period and by no means the most important at the time. In particular, the parties spent a lot of time on the terms of the “carry” to be allowed to the Conlan side, which was now to be arranged through the vehicle of a limited company, Quinby Limited. That issue had a number of facets because it also involved the question of agreement with the bank as to proportionate repayment of the loan on sale of a portion of the lands.
29 By the 5th February, the Lynch side had not seen any form of the facility letter. No anxiety had been expressed by any of the Lynchs or Mr Burns as to its contents. LK Shields did want to see it in order that the co-ownership agreement could be completed, which was that firm’s focus. Matheson Ormsby Prentice had also emailed A & L Goodbody who were the solicitors advising AIB, seeking copies of the letter and the security documents. None of the firms involved at this stage had any reason to think that the terms of the letter would be anything other than routine. The transaction had been in gestation for more than a year and was now approaching completion without any suggestion that the terms of the letter would be controversial, still less that it could result in the transaction not being completed at all.
30 On the afternoon of the 5th February A & L Goodbody emailed Matheson Ormsby Prentice attaching a copy of the mortgage which appeared to provide that each mortgagor would be jointly and separately liable for the obligations of the other. These terms did not provoke any comment precisely because no one had at that stage any idea that the Lynchs had any desire for non-recourse lending, let alone an absolute requirement for that form of loan. On the same day, Mr Imdaad Sulaiman of LK Shields prepared a memo of a conference call between Mr Gollogley and Mr Burns. Mr Sulaiman was to become the main participant on the part of LK Shields in the events which followed.
31 On the 6th February Mr Sulaiman made a memo of a conference call between Jim Gollogley of LK Shields and Judith Whelan in which he recorded that Jim had confirmed to Judith Whelan that LK Shields’s involvement was just in relation to the co-ownership agreement and that Mr Gollogley, would not be getting “too involved” in what was described as the purchase transaction, and that Judith agreed with this. It should be said that Ms Whelan disputed this in her evidence at the trial. At 18:58 that day AIB emailed A & L Goodbody a version of the facility letter which contained all the Lynchs as parties and as borrowers but provided for “Full Joint and Several Recourse of Gerard Conlan and Philip Lynch for all EUR 25,000,000 debt”. This draft was only exchanged between the bank and its own solicitors and once again was not seen by the borrowers. It is however a troubling feature of this case that at all times it appears that the bank did not have any requirement that the Lynch children and Mrs Lynch be liable for the loan. This of course is consistent with the original structure of the transaction, its commercial underpinning and the development under which the Lynch family became participants in it. If the bank was willing to lend to Mr Conlan and Mr Lynch alone (and understandably so given their net worth), then the addition of the Lynch family for reasons internal to the Lynch side did not in any way increase the risk from the bank’s perspective or create a commercial necessity to make them jointly and severally liable for the loan. It also seems likely that while it may have taken some more time and attention, it would have been possible to draft both the facility and the mortgage letter to reflect the bank’s desire to be able to recover the land in full if there was default on the loan, together with the possibility of further recourse against Mr Lynch and Mr Conlan but without recourse against the other members of the Lynch family. That course was never attempted, no doubt because it was never raised.
32 On the 7th February, Mr Lynch and Mr Burns were on their way back from Zurich and had a number of crucial conversations with other participants in the transaction while at Heathrow Airport and subsequent to landing at Dublin Airport. In the early part of the day the main issue was the arrangement of the Quinby carry and the related issue of securing the bank’s agreement to partial repayment of the loan as parts of the land were sold. At 15:05 A & L Goodbody emailed the bank with a redraft of the facility letter which provided amongst other things for “full joint and several recourse to all the borrowers”. The reason given for this change was that A & L Goodbody took the view that the limited recourse provision in the AIB draft of the previous evening could cause difficulties of enforcement. The relevant witnesses did not give evidence, but I infer, I hope correctly, that this advice took the view that the version then in circulation could pose a difficulty for the enforcement of the mortgage security if the Lynch family members were owners of the land and parties to the mortgage but had no obligation in relation to the debt. This, it should be observed, was a technical and legal issue rather than a commercial one.
33 At 15:10 Mr Sulaiman emailed Mr Ronan McLoughlin of Matheson Ormsby Prentice requesting sight of the AIB facility letter when received by that firm. At 15:40, Mr Sulaiman had a direct conversation with Derek O’Shea in AIB. His note records that the purpose of the call was to ascertain that the bank agreed to proportionate repayment. The note also recorded that the latest draft of the facility letter was then literally in the process of being printed. Again, the memorandum of this conversation is notable for the absence of any reference to the recourse or non-recourse nature of the facility letter and is consistent with the view that that issue did not loom large, or at all, at that time.
34 Mr Sulaiman was also in conversation with Mr Burns at Heathrow and it appears that conversation prompted his communication with Mr O’Shea. Mr Sulaiman then had a further conversation with Mr Burns in which he confirmed the Lynchs’ agreement to the question of proportionate repayment of the Quinby carry.
35 At 15:59 Mr O’Shea sent an email containing a facility letter to A & L Goodbody, Matheson Ormsby Prentice, to Mr Gunne directly (representing Mr Conlan) and attempted to include Mr Sulaiman, but it appears an incorrect email address was used. However, that error was corrected when Mr Ronan McLoughlin of Matheson Ormsby Prentice forwarded the email at 16:12 to Mr Sulaiman who in turn forwarded it to both Judith Whelan and Robert Burns at 16:32. This was the first time that the facility letter was seen by the Lynch side or by LK Shields or Matheson Ormsby Prentice.
36 There were a number of changes to the draft consistent with the discussion between the bank and A & L Goodbody. However in respect of what is now the crucial issue of the contents of the clause dealing with recourse, it contained a formula similar to that contained in the AIB draft of the previous day i.e. it provided for “Full Joint and Several Recourse of Gerard Conlan and Philip Lynch for all of the EUR 25,000,000 loan plus interest, costs and charges”. Thus, by this stage, at 4pm on the eve of the closing date, it was clear that the Lynchs had been apprised of these terms, particularly the possibility of full recourse against Mr Lynch. Matheson Ormsby Prentice for their part were aware that all the Lynchs were now parties to the transaction and that the draft, on its face at least, did not provide for recourse to those family members other than Philip Lynch. LK Shields for their part were also now aware of the fact that the terms proposed required full recovery against Mr Lynch and did not, at least specifically, address the position of the other family members.
37 On the plaintiffs’ evidence, by this stage Mr Lynch, while at Heathrow Airport, had coincidentally just made it clear to Robert Burns, to Judith Whelan and, the High Court judge found, possibly to Mr Conlan, that he, Philip Lynch, would not complete the transaction unless the loan was non-recourse to all the borrowers. It is not clear, even on the plaintiffs’ case as I understand it, what gave rise to this declaration, but Ms Whelan in her evidence said that she was aware of her father’s position when she received the 16:32 email. If this is the case, one might have thought that this would have meant that she would both be alert to the terms as to recourse, and, would also have reacted immediately when it became apparent that it provided for recourse albeit against Mr Lynch himself. However, she accepted in her evidence that she saw the clause but did not react to it.
38 At 16:40 Mr Roberts of A & L Goodbody replied to Mr O’Shea’s email and once again addressed the format of the recourse clause. He had recently advised his client on the format of the facility letter, and some of that advice was reflected in this draft. However, although Mr Roberts had drafted a clause providing expressly for the recourse against all the borrowers, a different provision had been included in the draft letter which issued, providing for the recourse against Mr Conlan and Mr Lynch. It is unsurprising therefore that he returned to the issue again and repeated his advice. He stated:
39 It is important at this stage to recall that neither Mr Roberts nor Mr O’Shea gave evidence at the trial. There is no doubt however, that Mr O’Shea did effect a further crucial change to this clause. Mr O’Shea had prepared a witness statement for the trial. The plaintiffs sought and obtained permission from the trial judge to introduce this into evidence. It stated that he had received a phone call from Mr Godsil who observed light heartedly that since the draft in circulation had made express provision for full recourse against Mr Conlan it must follow that all previous loans, which had no such express provision, were non-recourse loans. Mr O’Shea’s statement then records that this prompted him to make what transpired to be a fateful alteration by removing all reference to recourse against Mr Conlan and Mr Lynch, and with the consequence that there was full recourse against all the borrowers. It is important to say that at this point that while the plaintiffs introduced Mr O’Shea’s statement into evidence, this did not mean that they accepted this account of the reason for the change made by Mr O’ Shea. On the contrary they introduced the statement in evidence with a view to inviting the court to disbelieve it and to infer that there was some other undisclosed reason for the change.
40 It appears that Mr Sulaiman prepared a further memorandum for his file which notes that he spoke to Robert Burns at 18:05. That appears to be shortly after Mr Burns had landed in Dublin Airport, although the memorandum itself stated that Mr Burns was in transit between connecting flights. The trial judge considered that this must have been an error since Mr Burns had landed at the time recorded on the memorandum. The memorandum suggests that the call lasted for just over nine minutes. Mr Burns for his part stated that he had no recollection of the telephone conversation, but he did say that a conversation could have taken place, although he disputes the account given by Mr Sulaiman of the contents of the call. The memorandum sets out a number of matters which were discussed and agreed, and then concluded “re possibility of Goodbody’s/bank wanting the joint/several clause to apply to both Gerry, Philip and all the Lynchs, Rob felt this wouldn’t be a problem”. It is noteworthy at this point that a new facility letter had not issued. However, it is true that at this point A & L Goodbody’s advice was (and had been) that the simplest course was to have full recourse against all the borrowers. Given the degree of interaction between the parties and their respective lawyers, it is not at all implausible that Mr Sulaiman should have become aware that it was A & L Goodbody’s advice that the joint and several liability should extend to all borrowers and therefore that such a requirement might be made by the bank. However, as the trial judge noted, the precise manner in which that important information reached Mr Sulaiman is not clear.
41 Mr Burns stated in evidence that he could not have said what he was recorded in the memorandum to have said about full recourse not being a problem, since that itself was inconsistent with everything else. “Everything else”, in this regard, for Mr Burns, appears to mean the conversations held at Heathrow Airport in which it was said Mr Lynch made clear his position that unless the loans were full recourse, the transaction would not proceed. On the other hand, it might be observed that the statement that Rob felt that full recourse “wouldn’t be a problem” is itself consistent with his email of the 2nd February 2007 to LK Shields suggesting that Mr Lynch was prepared to provide a guarantee for his children’s liabilities and his email to Judith Whelan of the 3rd February 2007 recording that the debt was joint and several and that if need be, Philip Lynch would be prepared to guarantee the children’s borrowings. There was however a sharp conflict about this issue at the trial.
42 At 18.56 Mr Sulaiman emailed Mr Jim Gollogley stating that:
Mr Gollogley who was at that stage at a wedding in the country was in contact with Mr Sulaiman. He replied;
44 Shortly afterwards, at 19:17, Mr Gollogley emailed Robert Burns in the following terms:
8th February 2007
46 At 10:36 Mr O‘Shea emailed a final version of the facility letter to Mr McLoughlin of Matheson Ormsby Prentice. This was not however copied to LK Shields or the Lynchs. Mr O’Shea asked Mr McLoughlin to confirm when he heard from “the Lynch’s solr that the Letter of Sanction is ok”. Mr McLoughlin emailed Mr Godsil and Mr Gunne in the following terms: “Richard/Conor, See below. The reference to Gerry and Philip only as being joint and several has been deleted as it may have caused issues on enforcement for AIB.” This email is important because it seems to show that at this stage, Mr McLoughlin for his part did not consider that the loan had been changed to one with non-recourse as far as his clients were concerned. At 12:03 Mr McLoughlin sent an email to Mr Sulaiman attaching without comment the amended facility letter. At 12:16 Mr Sulaiman forwarded it to Robert Burns and Gillian Burdon stating “you will note that the special condition regarding any recourse as against Philip and Gerry has been now been removed”. This email was also copied to Ms Whelan, who was at that stage travelling around Dublin collecting powers of attorney from her siblings. In her direct evidence she said that she had met Mr Burns in his office at Thomas Street earlier that morning and that he had informed her of the 9:33 email. She also stated that she had gone back to Thomas Street and had reread her emails and so saw the 12:16 email. However in cross-examination she accepted that she had no recollection of being told by Mr Burns about the 9:33 email, and accepted that there was no mention in her witness statement of returning to Thomas Street. In the event the evidence of personal knowledge on the part of Ms Whelan of the critical emails, still less reliance on them, was as limited as the evidence of Mr Lynch imposing a requirement of non-recourse the previous day. The heart of the plaintiffs’ case against LK Shields was therefore the fact that the trio of emails recorded above were sent by LK Shields to Mr Burns and Ms Burdon.
47 The closing of the transaction had now been put back to 3 o’clock. Mr McLoughlin had still not heard whether the Lynchs were happy with the final facility letter. At 14:05 Mr McLoughlin emailed Mr O’Shea to find out if he for his part had heard anything in this regard and at 15:46 Mr O’Shea replied stating that he had heard nothing except that a drawn down request from the Lynchs had been received. At 3 o’clock the transaction was completed at the offices of A & L Goodbody, the solicitors for AIB. Mr McLoughlin was there as the purchaser’s solicitor. Judith Whelan attended and executed all relevant documents on her own behalf and on behalf of the other Lynch family members including the final facility letter. Mr Conlan for his part was not there but had executed all necessary documents in advance. There was no discussion about the nature of the loan.
48 Two years later the loan was due for renewal. By that stage the market had of course deteriorated. It is perhaps of some significance that AIB re-issued the facility letter but in the format originally favoured by Mr O’Shea, i.e. providing for full recourse against Gerry Conlan and Philip Lynch only. It is not clear if an advertent decision was made to resile from the terms of the facility letter actually executed, although that appears unlikely. Nevertheless, this was perhaps indicative of a continuing attitude of the bank to the commercial reality of the loan. Had that facility letter been accepted, it seems likely that the other members of the Lynch family would have no liability, or at a minimum would certainly have been in a stronger position than they were when proceedings were commenced by the bank. However, the family took a very firm stance that they had been advised that the facility letter was non-recourse against everybody and would not execute an agreement on any other terms. Accordingly, the loan became due, and AIB commenced summary proceedings against all the members of the Lynch family and Mr Conlan. These proceedings were commenced and the summary proceedings stayed pending the determination of these proceedings in which the Lynch family sought, as against AIB, a declaration that the loan was not due. The proceedings also claimed that the loan had been procured by a misrepresentation that it was a non-recourse loan. In the event that the loan was however found due, the plaintiffs claimed an indemnity from both firms of solicitors.
The Judgment of the High Court
50 The trial judge also had to deal with the central claim made by the Lynch family that in a series of phone calls to Mr Conor Gunne and Ms Judith Whelan, and in personal conversations with Mr Burns, all while at Heathrow Airport on the 7th February 2007, Mr Philip Lynch had made it clear that he would not complete the agreement unless the loan advanced was non-recourse, not just to his family members but also to him (and consequently, presumably, Mr Conlon). This position was asserted to have been expressed on the 7th February, but was said to represent Mr Lynch’s firm view in general, and the common understanding of the family members, including Mr Lynch (shared by Mr Burns) in relation to the loan at all times.
51 The findings of the trial judge in relation to Mr Lynch’s assertion are important and accordingly worth quoting in full. At pp. 14-15 of the judgment ( IEHC 544) he said:
53 In relation to Ms Whelan, the trial judge observed that if her evidence was correct and she was aware of her father’s view that the entire deal could not proceed unless the loan was non-recourse to everybody, it was remarkable that she took no step to alert anybody that there was a problem about recourse. He continued:
56 In relation to the claim against Matheson Ormsby Prentice, the judge’s decision followed largely from his conclusion of fact that Mr Sulaiman had misunderstood what Mr McLoughlin had told him on the 7th February in relation to the changes being made to the facility letter in respect of the non-recourse clause. The trial judge accepted that Matheson Ormsby Prentice could have a duty of care extending beyond the strict terms of their retainer and which might arise by virtue of the nature of the transaction and the way in which it developed. He observed:
57 Finally, the trial judge considered the case against LK Shields. This was in many ways the most difficult of the cases, particularly in relation to the findings made by the trial judge in respect of the conversation between Mr McLoughlin and Mr Sulaiman, and Mr Sulaiman’s and Mr Gollogley’s communications with the Lynchs. He concluded that the involvement of LK Shields had moved into matters beyond simply the co-ownership agreement and that a relationship of proximity undoubtedly existed between the parties. However, referring to and relying on the judgment of Keane C.J. in Glencar Exploration p.l.c. v. Mayo County Council (No.2)  1 IR 84 (hereinafter “Glencar”) and adopting the observations of Brennan J. of the High Court of Australia in Council of the Shire of Sutherland v. Heyman  157 C.L.R. 424 (hereinafter “Shire of Sutherland”), and those of Lord Bridge in Caparo Industries p.l.c. v. Dickman  2 AC 605 (hereinafter “Caparo”), the trial judge considered that notwithstanding the existence of proximity and foreseeability, there remained a question as to whether it was just and reasonable that the duty of care owed by LK Shields to the plaintiffs on foot of their retainer should extend as far as the information and advice given in relation to the nature of the facility letter. He concluded that it was not just and reasonable to impose a duty of care upon LK Shields in the particular circumstances in this case. It was not reasonable to expect that Mr Sulaiman ought to have known that the advice which he gave was critical to make a decision to proceed or not and that in particular if the loan was a recourse loan the Lynchs would not proceed. Furthermore, he held that for the very same reason, it was not reasonably foreseeable that by acting upon the answer given, the plaintiffs would sign up to a facility the nature of which they were unwilling to accept, since LK Shields were kept in ignorance in that regard. Accordingly, the judge also dismissed the claim against LK Shields.
59 The conviction of a trial judge who has had the opportunity of hearing and assessing the witnesses involved and the consequent argument over a 27 day period that in some general way it is not fair and reasonable that the firm of solicitors in this case should incur a liability potentially in the region €25 million and continuing interest, is something which is by no means irrelevant to the fair resolution of this case. The circumstances which appear to have influenced him were that the solicitors were introduced very late in the day on one small and specific aspect of the transaction (and their fees agreed on that limited basis) and that the particular question arose on the eve of the closing in circumstances where the clients’ instructions gave no possible hint that the answer was critical to the family’s involvement in the transaction. However, the trial judge’s conclusion here that as a matter of law, a solicitor acting for a client in relation to a transaction owes no duty of care in giving advice about the legal nature of a document then in draft form and intended to be part of the transaction, is more challenging.
60 In my opinion the trial judge was quite right to conclude that even though the relevant advice had been given on an occasion, and in relation to a matter outside the original retainer, there was sufficient proximity between the Lynchs and LK Shields to give rise to a duty of care, if all other requirements were satisfied. Similarly, it cannot seriously be doubted that if a duty of care arose, then the firm was in breach of that duty and negligent in advising that the alterations effected on the 7th February meant that the loan was non-recourse to all the borrowers. It is clear, therefore, that the plaintiffs’ claim against LK Shields failed because the trial judge considered that it was necessary to take at least one further step and establish that in addition to proximity and the lack of care, it would also be fair and reasonable to impose liability on the defendants. The finding that the damage was not foreseeable was based on essentially the same considerations.
61 I regret that I cannot agree with the trial judge’s approach to the issue of the existence of a duty of care in this case. The cases of Ward v. McMaster  I.R. 337 and Glencar, particularly when set against the background, in other common law jurisdictions, of cases such as Donoghue v. Stevenson  A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.  AC 465 (hereinafter “Hedley Byrne”), Home Office v. Dorset Yacht Co. Ltd.  AC 1004, Anns v. Merton London Borough Council  AC 728, the decision of the High Court of Australia in Shire of Sutherland and the later decision of the House of Lords in Caparo, are probably by now well known to every student of tort, indeed law students more generally, since the emergence of the neighbour principle in Donoghue v. Stevenson and its subsequent development and application is a favourite topic in introductory classes on legal systems and methods. Lord Atkin’s elegant and memorable speech in Donoghue v. Stevenson had the effect of suggesting that there was a single unifying principle which explained why liability arose not just in that famous case, but in other individual cases in which liability had been established in negligence. Thereafter, the question increasingly became whether those areas, where it had hitherto been thought no liability and no duty of care arose or which had not yet been the subject of any decided case, would also succumb to Lord Atkin’s unifying principle. Those were areas such as liability for statements rather than actions (Hedley Byrne), liability for public law actions of public authorities (East Suffolk Rivers Catchment Board v. Kent  AC 74 and Anns v. Merton London Borough Council), liability for auditors of companies to third party investors (Caparo), pure economic loss cases (Caparo and Glencar), liability for nervous shock, and liability of builders and/or subcontractors to subsequent purchasers of buildings with whom they had no contractual relationship (Junior Books Ltd. v. Veitchi Co. Ltd.  1 AC 520), together with other favourite classroom examples such as the potential liability of rescuers.
62 In Anns v. Merton London Borough Council in the United Kingdom and Ward v. McMaster in this jurisdiction, the position appeared to have been reached where it was said that liability in negligence in such novel areas could be determined by the application of a two stage test. First, whether, if there was foreseeability of damage owing to the careless act there was sufficient proximity to the parties to establish a duty of care, and second, whether there were any possible policy considerations which should limit or negative the existence of the duty of care, albeit, as McCarthy J. observed in Ward v. McMaster, it would require powerful considerations of policy to deprive a plaintiff, who had suffered foreseeable damage as a result of the careless act of a sufficiently proximate wrongdoer, of the damages to which he or she would otherwise be entitled.
63 In later cases however, and put again perhaps too simply, there emerged a concern that this approach would give rise to a considerable extension of liability, and consequently cost, and make the tort of negligence the dominant vehicle for recovery in any civil action, which would threaten, if not obliterate, the other torts and even recovery in contract and quasi contract. The High Court of Australia in Shire of Sutherland pointed out that this approach gave rise to a significant risk of an approach which would result in a massive extension of a prima facie duty of care restrained only by some indefinable considerations of policy. This was important because a decision that a duty of care arose in any novel situation controlled not only the instant case, and all similar cases, but also influenced all those cases in which such a situation or some plausible analogy could be advanced, giving rise to a risk of liability which might have to be settled. Parties would have to seek insurance against such potential liability, and furthermore seek to recover that additional cost from their clients and customers, or risk claims and additional costs. In Shire of Sutherland, an alternative approach was mooted which was subsequently adopted both in the United Kingdom in Caparo and in this jurisdiction in the judgments in Glencar. That was where injury or damage was reasonably foreseeable, and there was sufficient proximity between the parties, a duty of care would nevertheless not arise in any such novel area unless the court considered that in all the circumstances it was just and reasonable that the law should impose a duty of care on the defendant.
64 In the landmark case of Glencar this court, through the medium of two comprehensive judgments by Keane C.J. and Fennelly J., with which the other members of the court agreed, reviewed and provided clear guidance in relation to some of the most troublesome areas of the modern law of torts. Thus, the judgments considered the law on the existence of a duty of care, the negligence liability of local authorities for failure to use discretionary powers, the tort of misfeasance of public office, the limits of the tort of breach of statutory duty, and the doctrine of legitimate expectations. In his judgment, Keane C.J. reviewed the development of the law on the existence of a duty of care starting with the famous speech of Lord Atkin in Donoghue v. Stevenson and that judgment’s treatment of the earlier decision of Lord Esher in Le Lievre v. Gould  1 Q.B. 491. The judgment then traces the development of the law of negligence in England and Ireland and concludes that the oft cited portion of the judgment of McCarthy J. in Ward v. McMaster, which appeared to endorse the approach taken by Lord Wilberforce in Anns v. Merton London Borough Council, could not be taken to be part of the ratio of the decision in Glencar and accordingly, could not be considered to foreclose further consideration of the underlying jurisprudence. Thereafter, in what has become the foundation stone of modern jurisprudence on the tort of negligence, Keane C.J. stated:
66 Viewed in this way it is, I think, apparent that the judge’s conclusion that the firm of LK Shields owed no duty of care to Mr Lynch when advising as to the nature of the facility agreement because to impose a duty of care in such circumstances would not be just and reasonable cannot be maintained. First, this was not a novel area where liability was being asserted for the first time. The essential components of the plaintiffs’ claim were well established. It has been beyond controversy for more than half a century that an advisor may owe a duty of care when making statements which may be relied upon even if there is no contract or retainer covering the advice. It is also well established that a solicitor may owe a duty of care independent of contract, and indeed, owe a duty of care in respect of areas outside the original retainer. None of this is or was in controversy. Second, the just and reasonable test in Glencar is also essentially a policy consideration and it has been determined long ago that it is just and reasonable that a solicitor, or indeed any other professional advisor, should owe a duty of care in such circumstances. It is also important that the question must be approached at that level of abstraction. As Lord Browne-Wilkinson observed in Barrett v. Enfield London Borough Council  2 AC 550 (pp. 559-560);
67 If indeed it is necessary to consider afresh the question of policy then at the appropriate level of abstraction at which that issue must be addressed, it seems clear that the law has consistently and correctly held that an advisor such as a solicitor will owe a duty of care when giving advice to a client on an area within his or her expertise and where the request for the advice, and provision of it, is neither in casual circumstances nor entirely separate from the business then being transacted. It is not necessary that a client make very clear that the advice is critical to any decision which he or she might make, or that it be the sole or decisive factor. The obligation of a professional person is to give advice some of which may be unwelcome. Clients may be slow to appreciate advice, which they are paying for, but which warns them against a course of action which they wish to follow. The practice of law and other professions have developed considerably, and in many cases for the better, but there can be strong pressures on lawyers and other advisors to take a “commercial” view of matters, and to bring only the good news to a client. It remains very important that advisors give independent advice which, in an appropriate case, may counsel caution. The obligation to give independent and professional advice which is important not just to clients but to society more generally, is reinforced if solicitors and other advisors understand that they have a duty to be careful in the content of the advice which they give to clients. Looked at in reverse, it would be a strange and surely undesirable outcome if it were to be determined that when in the course of a transaction a bank, having been itself advised by its own solicitor, makes changes to a facility letter which may expose individual members of a family to a liability of €25 million, those clients who are paying two firms of solicitors to represent them in the transaction, are not owed any duty of care by either firm in respect of that change. Furthermore if owed no duty of care it would follow that even if advice is given to them by their own solicitors, they cannot complain when it transpires that such advice is clearly incorrect, even if they rely on that advice to their detriment and suffer substantial, even ruinous, loss.
68 As the trial judge recognised, his analysis of foreseeability relies entirely on the same factors which led to his conclusion on the question of the fairness and reasonableness of the existence of a duty of care. It is, in my view, subject to the same frailties. The question of foreseeability must be addressed at a general level. Is it foreseeable that when advice is given in the context of a transaction and is incorrect, a person to whom that advice is given will suffer damage? Put in this way the question answers itself. The purpose of legal advice when it is sought and given is so that a client can factor that advice into decisions which he or she may take. If that advice is incorrect, it is plainly foreseeable that the client may suffer damage. The trial judge was clearly influenced by the limited retainer which the firm had, and the fact that they were involved late in the day, and perhaps most particularly, the fact that the Lynch family gave no hint as to the overwhelming significance which they now claim to have attached to the question of the recourse of the loans. These are important factors in the case more generally, but they are not decisive on the question of foreseeability. If, for example, there were no issue of the scope of the retainer, and LK Shields had plainly been retained to negotiate and advise upon the facility letter and had given incorrect advice that the loan was now non-recourse, it could scarcely be argued that damage was not foreseeable. Accordingly, the conclusion that the firm owed no duty of care to the Lynch family and Mr Lynch when giving advice as to the nature of the facility letter cannot stand and must be set aside.
69 The setting aside of the finding that the firm owed no duty of care to the plaintiffs in respect of the advice does not mean that the trial judge’s strong conviction that it would be unfair to impose liability in full or in part upon the firm in the context of this transaction is by any means irrelevant to the proper resolution of the case. On the contrary, the conclusion of an experienced trial judge who had the merit of observing the parties over an extended period of time in the setting of a trial, are of considerable value. But they may be more relevant to the question of reliance in fact, and therefore causation, and contributory negligence, as indeed the judge himself observed, than the legal issue of the duty of care.
The Cross Appeal by LK Shields
71 In this regard LK Shields submit that the court’s determination is inconsistent with the primary fact as found by the courts. In so contending, it is emphasised that in this regard the court is not being asked to revisit, in the words of Henchy J. in Northern Bank Finance v. Charlton  I.R. 149 (hereinafter “Northern Bank”) a “choice of alternatives arising out of divergent oral testimony” (p. 192). Instead it is suggested that the conclusion is one of secondary fact arrived at by consideration of the primary facts found. In the alternative, LK Shields also submit that if the finding was treated as one of primary fact there was no credible evidence to support it.
72 At the outset it should be observed that the relevant conclusion was arrived at in a context in which the court had held that LK Shields owed no duty of care in this regard to the plaintiffs, and accordingly the finding as to Mr Lynch’s decision had no direct legal consequences. Now however, it becomes particularly important to scrutinise this conclusion with considerable care.
73 By every known standard for the testing of oral evidence, the assertion that Philip Lynch made this last minute decision at Heathrow must rank as highly implausible and therefore one which would require careful analysis and justification before it should be accepted by this Court. The only people to whom this decision appears to have been communicated, and who gave evidence supporting its existence, were Mr Lynch’s daughter, Judith Whelan (herself a plaintiff in these proceedings) and his close associate, Mr Robert Burns. It is suggested that the decision was communicated by Mr Lynch to Mr Conor Gunne, Mr Conlan’s associate, but neither he nor anyone on the Conlon side was called to give evidence. Even on this account it is not asserted that there is a single document recording the existence of this decision. Indeed, documentary support for the suggestion that the Lynch family always believed the loan to be non-recourse is itself extremely sparse.
74 Even if there was no contradictory evidence, the assertion in oral testimony of the existence of this last minute decision would have to be tested against the known factual background and context. It should be remembered that what it is argued Mr Lynch decided was not merely to reject a loan advanced to him upon terms he found unacceptable. Instead, the decision alleged to have been made was not to proceed with the entire transaction including the purchase of the lands which was something that could have had very significant legal and commercial consequences. As far as Mr Lynch, Ms Whelan and Mr Burns knew, Mr Lynch not only agreed to buy the lands, but had advanced €2.5 million as his share of the deposit. The transaction was one in which the vendors had served a notice to complete which the Lynch party believed would expire on the following day. Much argument has been addressed, both in the High Court and this Court, to the question of whether, as a matter of law, Mr Lynch was legally bound to complete the transaction. But this is perhaps beside the point. What is relevant is what the Lynch party knew and understood on the 7th February and the central feature of this case is that they did not seek or obtain elaborate legal advice on any aspect of this transaction. They had no advice that they were free to withdraw from the transaction. Thus as far as the three relevant actors, Mr Lynch, Ms Whelan and Mr Burns were concerned, Mr Lynch’s last minute decision put him, and his family, at risk not only of failing to secure a transaction which they considered highly advantageous, but also, of the loss of the deposit of €2.5 million and the possible exposure to further litigation. Even if the legal consequences were not considered by Mr Lynch, the decision could have had significant commercial and personal consequences since it threatened to scupper a transaction into which Mr Lynch had entered with Mr Conlan, a businessman held in high regard by Mr Lynch and with whom he had a good relationship. As we now know, and indeed as the Lynch plaintiffs emphasise, Mr Conlan was overextended with AIB and therefore unlikely to be able to finance the transaction on his own. It is particularly unlikely therefore that the Conlan side would have received news of Mr Lynch’s last minute decision with equanimity if communicated, as alleged. LK Shields argue that it is very unlikely in the context that Mr Lynch would have made the decision which he alleges, but that if he did, and it was communicated, it is difficult to accept that such a decision would not have created shockwaves reverberating through the different offices engaged in the transaction and leaving clear evidence of its existence.
75 It is also argued that the action, and relative inaction, of the relevant parties is incompatible with the alleged decision. Given the background just discussed, it seems inconceivable that Mr Lynch’s last minute decision, if it was made and communicated, would not have provoked a flurry of activity on all sides. Not only did this not occur, but when Ms Whelan actually received a copy of the penultimate draft of the facility letter providing for full recourse against Philip Lynch, she did nothing. The trial judge observed that he found it “extraordinary that she did nothing, if, as she and Mr Lynch say, a decision had been taken that day that if the loan was to be recourse they would not be proceeding.” In addition to this eloquent lack of activity there is of course the conversation recorded by Mr Sulaiman with Mr Burns at 18:05 on the 7th February after the flight from Heathrow. The trial judge accepted the accuracy of Mr Sulaiman’s note which contained the passage: “re possibility of Goodbody’s/bank wanting the joint/several clause to apply to both Gerry, Philip and all the Lynchs, Rob felt this wouldn't be a problem”. It might also be observed that this note was broadly consistent with the prior correspondence from Mr Burns, itself inconsistent with any fixed position or indeed belief on the part of the Lynch side that the loans were to be non-recourse. Mr Burns’s position in the transaction is particularly important because whatever might be said about a very successful businessman who did not trouble himself with detail (which the judge considered Mr Lynch to be), or a family member only recently taking up a position (in the case of Ms Whelan), Mr Burns’s function was precisely to attend to all those details with which Mr Lynch did not concern himself. It was the essence of his position to be aware of the nature and detail of the transaction and the position of the Lynchs in relation to it.
76 By the same token it is difficult to accept that if the last minute decision had been made and communicated by Mr Lynch, the apparent compliance with that condition communicated by LK Shields on the 7th and 8th would not have received greater notice and attention than it did. On the Lynchs’ case, the entire deal was in jeopardy once Mr Lynch made his decision at Heathrow. But there is no evidence of the type of reaction which might be expected. Instead everything proceeded as normal towards closing. Draw down of the loan was requested and Ms Whelan spent the morning on a lengthy circuit of Dublin and surrounding counties picking up powers of attorney from her mother and siblings to allow the transaction to be closed. When Mr Sulaiman sent his email, it was not greeted with relief and celebration. Indeed as already observed there is scant evidence that it was communicated to Ms Whelan, or Mr Lynch, and none that it was discussed with the other members of the family.
77 LK Shields are entitled to point to all of these matters as very significant and indeed powerful. But the most obvious and telling feature militating against the conclusion that Mr Lynch did in fact make a last minute decision on the 7th February is the trial judge’s conclusion at p. 32, itself amply justified by the evidence, that Mr Lynch’s own recollection of exactly what he said on that afternoon was “hopelessly unreliable”. Again, in relation to the alleged phone call with Mr Gunne to tell him that he would not proceed unless the loan was non-recourse, the judge considered that Mr Lynch’s recollection was “hopelessly confused and unreliable”. The finding on p. 59 that, on balance, a decision was made on the 7th February is accordingly unsupported by any independent evidence, contrary to all the objective evidence and the factual context, and relies upon the evidence of a witness which in that specific context is regarded as hopelessly unreliable. In the circumstances of this case, it would be an injustice if LK Shields were bound by the finding made at p. 59.
78 This unusual case falls therefore within that category of case contemplated by Henchy J. in Northern Bank, pp. 191-192, as follows:
79 For completeness I should say that I do not lose sight of the point made in argument on this appeal that there are a number of alternative theories and scenarios under which LK Shields might be liable to the Lynchs even if it were not accepted that a decision had been made on the 7th February or communicated through the relevant parties. For example, it might have been suggested that the concern of Mr Lynch, and of the Lynch family generally, was that the loan should be non-recourse only to those family members who were being introduced simply for the purposes of benefiting from the investment. Furthermore, it was suggested that even if the Lynchs did not rely in any serious way upon Mr Sulaiman’s characterisation of the loan when they entered it, they may have done so thereafter and in particular when in 2009 they decided not to accept a renewal of the loan on terms that there would be recourse to Mr Lynch. However, the issue of the conviction of Mr Lynch (and by extension Ms Whelan and the other members of his family) that they would not enter any loan agreement which provided for any recourse against anyone and furthermore only entered this agreement on the faith of Mr Sulaiman’s assurance that the loan was non-recourse, is central to this case, and not least, to the credibility of the relevant parties. This was in fact the only case pleaded. It was the case made with considerable force and skill in the hearing in the High Court. The observations of this Court in Vesey v. Bus Éireann  4 I.R. 192 and Shelley-Morris v. Bus Átha Cliath  IESC 74 and  IESC 2 to the effect that it is not for the court to disentangle a case made by a party or to hypothesise the best case the plaintiffs might have made, and furthermore, that a loss of credibility on one issue may make it difficult or impossible to accept the parties account on other issues, are as relevant in this context as in the field of less complex personal injuries actions. The outcome of this case is that LK Shields did owe a duty of care to the plaintiffs when interpreting the facility letter, and were in breach of that duty when Mr Sulaiman was wrong in informing Ms Burdon that the bank no longer required recourse against the Lynch family, Mr Lynch or Mr Conlan, but no reliance was placed on that error in entering the agreement and accordingly it was not the cause of damage to the Lynchs. Their loss was caused if anything by a combination of the collapse in the property market and by the fact that while it was their constant advice for almost a year that to minimise tax the individual members of the Lynch family should be borrowers, little or no attention was paid to the terms on which that borrowing was to be provided.
The Case Against Matheson Ormsby Prentice
81 The complaint made by the plaintiffs that Matheson Ormsby Prentice are liable to them by virtue of the fact that Mr McLoughlin misrepresented the closing date can also be disposed reasonably easily. It is perhaps understandable why Mr McLoughlin might take this course. This was a multi-party transaction which involved the agreement of Mr Conlan, Mr Lynch, the extended Lynch family, and also the securing and agreement of finance. There was an absolute deadline created by the service of the notice to complete. Deadlines such as one created by a notice phrased in terms of a number of days from the date of the notice are notoriously difficult and create a real possibility of either a miscalculation, or worse, terminal procrastination on the part of one party to the transaction leading to collapse of the transaction for everyone, and recrimination if not litigation. There are perhaps circumstances therefore in which a competent solicitor might seek to protect the clients and parties from themselves by setting an earlier deadline. That is not to say that in doing so he may not take a risk. In this case however the trial judge found that there was no suggestion in the evidence that given more time any greater attention would have been paid to the question of the facility letter or to Mr Lynch’s decision. The problem was not the closing date, but rather the brinkmanship involved in a last minute decision.
82 Of rather greater substance is the plaintiffs’ contention that since they were clients of Matheson Ormsby Prentice (and ultimately paid half of Matheson Ormsby Prentice’s bill) that firm owed to them a duty of care, so that when the terms of the facility letter changed late on the 7th February, and that change communicated to Matheson Ormsby Prentice, that firm should have apprised its clients of the fact of that change and its legal consequences. This argument, it should be said, can only truly apply in the case of the members of the extended Lynch family. As far as Matheson Ormsby Prentice were concerned the terms of the facility letter always provided for recourse to Mr Lynch (and Mr Conlan). In the case of the extended Lynch family however, they had become parties to the transaction (and therefore clients of Matheson Ormsby Prentice at least as far as the conveyancing was concerned) and shortly thereafter the terms of the facility letter were changed for reasons explained to Mr McLoughlin, and in circumstances where the new facility letter was sent to him for onward transmission to his clients. In those circumstances it is said that he had a duty to alert the Lynchs either directly or through their agent, LK Shields, to the change of the facility letter and its consequences.
83 The trial judge dealt with this issue at pp. 48-49 of the judgment as follows:
I have no difficulty in accepting that a solicitor's duty of care to his/her client may in some circumstances extend beyond the specific terms of the initial retainer in certain circumstances. If, for example, it was established in the present case that Mr O'Shea had informed Mr McLoughlin that this recourse clause was being removed in order to change the facility from a non-recourse loan to a full recourse loan, and if Mr McLoughlin was aware, or ought to have known, that this was a matter of importance to the Lynch side, he would be negligent if he failed to communicate that information to the Lynchs, either through LKS or to the Lynchs directly, or at least at latest at the closing of the transaction itself, even though MOP’s specific retainer did not extend that far.
It might be negligent also if Mr McLoughlin had known or believed that until this change was made the facility was a non-recourse loan, and even in the absence of being specifically told by Mr O'Shea of the purpose of the change to the facility letter, he nevertheless believed that as a matter of law the change was altering the nature of the loan to recourse, and he failed to communicate that view to his clients even where he had not been retained in relation to giving advices in relation to financing aspects of the transaction, since it would be reasonable for him to appreciate that his clients needed to know.
But in the present case the facility was at all times a recourse loan. The change effected to the facility letter did not alter this as a matter of law, and nobody on the Lynch side had told MOP that only a non-recourse loan would suffice.”
85 However, the circumstances here are somewhat different. While two firms of solicitors were involved and acting on the Lynchs’ behalf, the fact is that there was nobody who had overall responsibility to advise the Lynchs as to the nature of the transaction. That was as a result of the deliberate decision of Mr Lynch (and through him, his extended family) to share the cost of retaining Matheson Ormsby Prentice for conveyancing and to retain LK Shields for the limited purpose (and cost) of advising on the co-ownership agreement. Even so there is no doubt that as a transaction proceeds and develops, a solicitor may incur a duty of care that extends beyond the strict terms of his or her retainer. It has already been held that this is what happened here in the case of LK Shields but it becomes important, and indeed critical, to consider whether Matheson Ormsby Prentice incurred a duty of care to the Lynchs in this specific respect.
86 A duty of care arises because of the proximity to the parties. That proximity is created in part by the existing legal and factual relationship of the parties. Here, when the facility letter was introduced into the transaction, and with it the possible extension of the duty of care, there were however two firms of solicitors involved. LK Shields were understood by the Lynchs, and indeed referred to by the other parties, as representing the Lynchs’ interests in the transaction. The possibility of involvement of the Lynch family members had only arisen as far as Matheson Ormsby Prentice were concerned, at a very late stage in the transaction. It seems to me that when changes arose in relation to those individuals, Matheson Ormsby Prentice were entitled as a matter of law to do what they, and everyone else, did as a matter of fact, which was to treat LK Shields as acting for the Lynchs in respect of those additional matters. Thus, by passing on the information to LK Shields, Matheson Ormsby Prentice satisfied any duty which lay upon them. I do not think it can be plausibly said that they had a duty to bring the change to the attention of the Lynchs either directly or indirectly through LK Shields, so long as the basic information was provided which would allow LK Shields to give information and advice. That was done, and the problem here arises because the advice then given was wrong. Of course, it is quite possible that Mr McLoughlin, in informing Mr Sulaiman of the changes being made and the reasons for them, might have observed that this would make the extended Lynch family liable for the loan. If he had done so, it is possible that Mr Sulaiman or Mr Gollogley might have scrutinised the matter more carefully and therefore not have given the fateful assurance to the Lynch family. The fact that this could have happened is however only one of the regrettable twists and turns of this unfortunate case, but does not mean that Matheson Ormsby Prentice were under a duty to make it happen.
The Case Against Allied Irish Bank
88 At the close of the plaintiffs’ case, counsel for AIB announced that the bank would not be going into evidence, but would seek to rely on other evidence adduced on behalf of the other defendants in their defence. This had the consequence that Mr O’Shea who had made the critical alterations to the facility letter, and in doing so had not followed the format proposed by the solicitors to AIB, would not give evidence. He could not be cross-examined by the plaintiffs either to seek to explore matters which might give rise to some defence against the AIB claim, or perhaps simply to strengthen the plaintiffs’ claim against the other defendants.
89 There are obviously consequences when a decision is made not to call any witnesses. In the first place it was open to the plaintiffs to introduce the witness statement and/or any affidavit sworn on behalf of AIB and comment upon the matters contained therein. Second, it was open to the plaintiffs to invite the court to draw inferences from the absence of the particular witness. However, the plaintiff understandably preferred to have the opportunity of cross-examining a witness and their counter-move was impressive, at least at the practical level at which the forensic struggle was taking place. Counsel for the plaintiffs responded to the AIB move by then contending that since the bank was not going to go into evidence it was not in a position to prove its counter-claim for €25 million together with interest, which accordingly should be dismissed. There was some debate then as to whether the plaintiffs had acknowledged the amount due in their evidence and the trial judge, correctly in my view, held that the relevant exchanges did not amount to any sufficient acknowledgement. However he also ruled that the structure of the case was one which had commenced by way of summary proceedings brought by AIB in respect of the debt, which proceedings had been stayed pending the outcome of the claim which represented the plaintiffs’ only defence, such as it was, to the AIB claim. Accordingly, if the plaintiffs’ claim against the bank failed then the bank would be entitled to adduce formal proof of the debt.
90 On this appeal the plaintiffs made two points. First, it was said that a party’s failure to call an available witness could in an appropriate circumstance permit the court to draw inferences from that failure against the party so deciding. This at least in general terms was common case, and had been established relatively recently and authoritatively in the High Court judgment of Laffoy J. in Fyffes p.l.c. v. DCC p.l.c.  2 IR 417 (p. 507) (hereinafter “Fyffes”).
91 At the outset I should say that I deprecate the fashion of referring to the “drawing of an inference” in the abstract as if it was an end in itself, akin to the deduction or addition of points which might or might not alter the result of a game. The drawing of an inference in this context, as indeed in any other, is an exercise in logic: when one party asserts a given set of affairs, which the identified witnesses available to the other party could be expected to rebut if untrue, then, if the second party does not call those witnesses to give evidence, the court may draw the inference in support of the case made by the first party, that those witnesses were not called to give such evidence because they would not in fact rebut the case made by the first party. Each case therefore, involves a consideration of the specific inference which the court is invited to draw. The position is well put in two authorities relied on by the bank in this regard. In McQueen v. Great Western Railway Company (1874 - 75) L.R. 10 Q.B. 569 Cockburn L.J. said:
(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to drawn the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reasons for the witness’s absence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.” (p. 340)
93 There are a number of difficulties with this conspiracy theory. The first, and perhaps most fundamental, is that it amounts to an allegation of deliberate misconduct amounting to fraud which was not pleaded. For well over a century these courts have been astute to require that when any such allegation of deliberate misconduct is made it must be specifically pleaded and fully particularised, and that evidence led should not stray outside that case. To permit a rolling inquiry which changes as a case develops is in itself a form of injustice. While it may be difficult, even with the tools available to the modern litigant, to prove deliberate misconduct, and while cases can change when witnesses give evidence, the requirement that deliberate wrongdoing be properly pleaded and particularised should be adhered to, even if that necessitates applications to amend pleadings in the course of the trial. That is itself an important and fundamental aspect of the just resolution of disputes.
94 Here, that course was not followed and for good reason. No case of such deliberate wrongdoing was pleaded or made. Therefore, applying the test set out in the dicta above, there certainly was no prima facie evidence of the deliberate misconduct which the plaintiffs invited the court to infer from the absence of Mr O’Shea. The only inference that could be properly drawn from the decision not to call Mr O’Shea (or any other evidence) was that the advisors to AIB considered (correctly as it transpired) that the plaintiffs had not established any case, prima facie or otherwise, against it. Accordingly the High Court was correct not to draw the inference suggested on behalf the plaintiffs
95 The second point made by the plaintiffs relates to the fact that the bank was not required to call a witness, and in particular Mr O’Shea, to prove the counter-claim. I would have a little more sympathy with this point if it was directed to ensuring that Mr O’Shea gave evidence in the trial, and was cross-examined as to the plaintiffs’ claims. However, the plaintiffs asserted, and now maintain, that the consequence of the decisions made at the close of the plaintiffs’ case was that no evidence could be adduced on the defendants’ counter-claim which accordingly should be dismissed, that the bank should be at the loss of €25 million plus interest advanced to the Lynchs, and which was, in the absence of some substantive defence, clearly due by them. This would be to bring the school yard, game playing aspect of litigation to new heights. In my view it might perhaps have been helpful if the skirmishing about evidence had the result that Mr O’Shea did indeed give evidence and was cross-examined. The bank was entitled to pursue its own practical best advantage, but from the point of view of the litigation as a whole it might have been preferable, and have avoided the more exotic conspiracy theorising, if as much of the evidence as was available was adduced. But this was a practical rather than a legal issue, and not something which can give rise to any criticism of the trial still less a ground of appeal.
96 In relation to the argument now advanced on behalf of the plaintiffs that the counterclaim should have been dismissed, it is in my view without any substance. The only question was the manner in which the bank should seek to formally prove its debt. As it happened, we are informed that no witness addressed this issue in any witness statement, presumably because the whole posture of the case was one in which the plaintiffs’ case was the substance of any defence or claim to indemnity it may have had in respect of the bank’s claim. It was well within the discretion of the trial judge to direct that the trial would proceed, and that if at the conclusion thereof it was established that the plaintiffs failed, the bank would be permitted to prove its loss. The bank was clearly entitled to choose whatever witness it wished to prove that formal debt and the plaintiffs could not demand that it be proved by Mr O’Shea.
97 One of the many difficulties for the plaintiffs in this regard was that they only raised this point for indirect advantage. They never had any capacity to deny or challenge the quantum of the debt and they only raised the point as a way of attempting to force the bank to call a particular witness. That ploy might have succeeded and they are not to be faulted for trying. Once it failed however there is in my view no substance to the contention that it was wrong to permit the bank to prove its loss. Indeed if the court had dismissed the bank’s claim and notwithstanding the bank’s willingness to call evidence, it would have been plainly wrong. Once it is accepted that the court was right to permit evidence to be given, nothing turns on the format of that evidence. As the bank points out, the plaintiffs had not filed a defence to the counterclaim and technically the bank was entitled to proceed for judgment in default. Furthermore, the plaintiffs did not seek to cross-examine in relation to the evidence of debt, as it would have been entitled, no doubt for the reason that there was never a dispute about the amount. Therefore the fact that the evidence was given by affidavit is of no significance. I would accordingly dismiss this ground of appeal.
98 In my view it follows that Mr Philip Lynch in particular had no basis for seeking to resist the bank’s claim for judgment, and consequently no basis for succeeding against the bank on this appeal. Accordingly I would dismiss his appeal in this regard and affirm the judgment of the High Court against him. I have been troubled however by an aspect of the case which was not to the forefront of the argument either in the High Court, or in this Court, largely because of the fact that the Lynch plaintiffs did not distinguish in any way between the position of Mr Lynch and the broader Lynch family. All of them, it was said, required non-recourse borrowing, and none of them would have entered the transaction otherwise. Apart from the credibility issues that this gives rise to, there is also the fact that there is, and was, a significant difference between the position of Mr Philip Lynch and the position of his wife and children. Mr Lynch was always a party to this transaction and he was the person to whom it was brought. It would not have been possible without his significant wealth and the bank, it appears, was at all times happy to provide funding for the transaction on the basis of Mr Lynch’s substantial net worth. When Mrs Lynch and the Lynch children were introduced into the transaction it was for Mr Lynch’s own, understandable, private wealth management purposes. The bank had no interest in those parties, and their addition to the transaction neither created additional risk for the bank, nor provided any additional security in terms of repayment. Indeed for that reason, all the drafts until the final draft on the 7th February provided for recourse to Mr Conlan and Mr Lynch only, and Mr Roberts’s correspondence with Mr O’Shea establishes that from a commercial point of view, the bank was focussed only on the possibility of recovery from them. There is also the fact that when in 2009 AIB offered further facilities it was once again formulated in terms in which there would be recourse to Mr Lynch alone. The position is that the extended members of the family were introduced into the transaction and indeed the loan, at a very late stage. At the last minute a change was made by the bank which was capable of causing confusion, and did, and which had the effect of exposing these individuals whose net worth may have been, in relative terms, limited, to the possibility which transpired in the High Court, of a potential individual liability in excess of €25 million.
99 It might not be unduly harsh to conclude that persons who stood to gain very significant amounts of wealth for little risk, skill or indeed involvement, do not deserve particular sympathy if the transaction turns unexpectedly sour and the undeserved profit turns into an undeserved liability. Harsher things have been suffered by many individuals in recent years. It must also be recognised that the key feature which gave rise to the potential liability of the Lynch family members was the tax driven requirement that not only should they be parties to the land transaction, but should also be treated as borrowers. It was the failure to address or appreciate the legal consequence of this step in the transaction which exposed the Lynch family members to liability on the loan in the first place. Nevertheless the fact is that these individuals whose net worth may be limited now face a potentially ruinous personal liability of which they were not advised, and which the bank never sought or relied upon at least from a commercial perspective and only obtained in order to facilitate the enforcement against the principal borrowers. In those circumstances there may be a residual question whether in all the very particular circumstances of this case, it would be equitable to permit the bank to enforce its legal claim against the wider members of the Lynch family, or at least to do so without having first pursued execution against the principal borrowers including Mr Lynch. I would accordingly, and to this limited extent, set aside the judgment obtained by the bank against the first, second, fourth, fifth and sixth named plaintiffs. It will be a matter for the parties if there is any merit on either side in pursuing the issue further.
100 In the circumstances I would dismiss the appeals of the appellants save that I would allow the appeal of the first, second, fourth, fifth and sixth plaintiff against the Bank to the extent indicated above.