High Court of Ireland Decisions

1. Mrs. Amanda Forshall, the first named Plaintiff in this case, is a married woman and the beneficial owner of Fine Arts and Collections Limited. She resides at 26 Paultons Square, Chelsea, London SW3. Fine Arts and Collections Limited, the second named Plaintiff, is a private limited company incorporated in the British Virgin Islands and having a registered place of business in the United Kingdom at Crown House, 37-41 Princes Street, Bristol. Between April and November 1990, the Plaintiffs say that they advanced some Stg.£677,000.00 to certain of the Defendants towards the purchase of 9 Lamborghini Diablo motor cars which were in the course of manufacture by the Lamborghini Motor Company in Italy. The Plaintiffs never got the cars and never received back their monies. In consequence, they bring these proceedings against the Defendants. The first named Defendant, Gerard Walsh is a Quantity Surveyor and resides in Cork. The second named Defendant, Timothy McSweeney, also lives in Cork and is a Director of the sixth named Defendant Lambo Motors of Ireland Limited (hereinafter referred to as "Lambo"). The third named Defendant, Michael McSweeney is employed by the fifth named Defendant bank, The Bank of Ireland, at its branch in Bandon in the County of Cork. The fourth named Defendant, William Hoogenbrugghen did not take any part in these proceedings and did not enter an appearance to the proceedings. The fifth named Defendant, Bank of Ireland Plc., has its registered offices at Baggot Street in the City of Dublin and at all material times had one of its branches at Bandon in the County of Cork. The sixth named Defendant, Lambo has its registered office at 7 Castle Street, Macroom in the County of Cork and was a company incorporated on the 13th of December, 1989. Judgment has already been obtained against Lambo by the Plaintiffs in this case. David Morrissey and William Naessens, the seventh and eighth named Defendants did not take any part in these proceedings. They were sued in their capacity as Directors of Lambo. Mary O'Brien Daly, the ninth named Defendant, was the Solicitor to Lambo. She successfully applied for a non-suit at the conclusion of the Plaintiffs' case. The Defendants, Edmund Cahill and Daniel Collins, trading as O'Brien Cahill and Company, applied at the outset of this action for an adjournment of the case brought by the Plaintiff as against them. The Court acceded to that application. The Plaintiffs' case against Gerard Walsh, Timothy McSweeney and William Hoogenbrugghen is set out in paragraphs 42 and 43 of the statement of claim. Essentially, the Plaintiffs contend that in all their dealings with the Defendants, Mr. Walsh, Timothy McSweeney and Mr. Hoogenbrugghen represented that they were director shareholders and/or entitled to the beneficial ownership of the Company Lambo Motors of Ireland Limited. Each of those Defendants, the Plaintiffs say, falsely represented and warranted that Lambo had a distributorship and/or a dealership in Lamborghini Motor Cars for Ireland and Mr. Walsh, it is claimed, falsely represented to the Plaintiffs that he had two additional dealerships or distributorships from the Lamborghini Motor Company of Italy for the sale of those motor cars in England or elsewhere in the United Kingdom. The Plaintiffs say that each of these Defendants, that is Mr. Walsh,

2. Mr. Hoogenbrugghen and Mr. Timothy McSweeney represented and warranted that Lambo, in the course of its business, was in a position to and was capable of providing the Plaintiffs with the Lamborghini Diablo Motor Cars, which representations and warranties, say the Plaintiffs, were false and untrue, and fraudulently made, with the intention of inducing the Plaintiffs to pay monies to Lambo. The Plaintiffs say that those inducements were successful and that they did, in fact, pay some Stg.£677,000.00 to Lambo. The Plaintiffs say that by reason of the fraudulent misrepresentations, negligence and recklessness of Timothy McSweeney, Gerard Walsh and William Hoogenbrugghen, and, indeed Lambo Motors of Ireland, that they, the Plaintiffs, have suffered loss and damage. In relation to Mr. Walsh the Plaintiffs say, additionally, that he threatened and abused Mrs. Forshall and indicated to her that in the event of her seeking to recover monies or seeking to obtain the motor cars or to contact Mr. Hoogenbrugghen with a view to doing so, that violence would be used against her and her family and that she should look to herself and to her three children and, says

3. Mrs. Forshall, he represented that he had close associations with terrorist groups and in particular the so called IRA and that he would use those persons to dispose of the first named Plaintiff and her children all of which conduct constituted a trespass, says the first Plaintiff, to her person and caused her significant and continuing damage and inconvenience distress and upset. As against Michael McSweeney, the Officer of the Bank of Ireland at the Bandon branch of that Bank, the Plaintiffs say:

4. The Plaintiffs contend the Bank of Ireland is vicariously liable for the torts committed by Michael McSweeney.

5. As against Mr. Walsh, the Plaintiffs seek recovery of all monies paid directly to him together with damages for deceit, negligence and fraudulent misrepresentation. As against Timothy McSweeney, the Plaintiffs seek repayment of the sum of US$600,000.00 as money paid to him for and on account of the Plaintiffs, together with damages for deceit, negligence and fraudulent misrepresentation. As against Michael McSweeney the Plaintiffs claim the repayment of the sum of Stg.£677,000.00 together with damages for deceit, negligence, negligence misstatement and fraudulent misrepresentation. As against Bank of Ireland the Plaintiffs claim damages for negligence, including negligent misstatement, damages for breach of contract and damages for breach of duty owed to the Plaintiffs.

6. Amanda Forshall met Gerard Walsh at the Kinsale House of one Christopher Renwick in January, 1990. Mr Renwick was a dealer in classic cars. This was the first occasion that Mrs. Forshall had met Gerard Walsh. It was not to be the last. Mrs. Forshall's company, Fine Arts and Collections Limited had been incorporated in January, 1990. Mrs. Forshall was the sole beneficiary of the shares in that company and the business of the company was the sourcing of fine art, property and classic cars for Japanese clients. In March, 1990, Mrs. Forshall took two Japenese associates to the showrooms of C. and J. Dunhill in London. They were interested in Lamborghini cars which Mr. Dunhill said he could supply. In particular Mr. Dunhill indicated that he might be in a position to supply Lamborghini Diablo cars in the last quarter of 1990. He indicated that there would a premium of $100,000 for delivery at that time together with the list price payment which was likely to be £87,000. The two Japanese persons who were with Mrs. Forshall on that occasion were a Ms. Miki and a Mr. Seki. The Japanese indicated their interest in placing an order for one of the Lamborghini Diablo cars which Mr Dunhill had indicated might be available in the last quarter of 1990 and they placed an order with him for such a car. In or about the 6th April, 1990 Mrs. Forshall says that she got an unsolicited telephone call from Michael McSweeney who introduced himself as the Manager of the Bank of Ireland, Bandon. He said that Mr. Gerard Walsh had given him her number which he in turn had got from Mr. Christopher Renwick. He said that both Mr. Renwick and Mr. Walsh were very good customers of the Bank of Ireland and that he knew Mrs. Forshall was purchasing a Lamborghini car and was interested in certain property in Ireland and that he was in a position to offer finance to purchase such property. At the end of April, Michael McSweeney phoned Mrs. Forshall again. He said that he had heard that clients of hers were purchasing a Bugatti Royale for some $15,000,000.00. He said that his bank would be very interested in having such clients as customers. On the 1st May 1990, Mrs. Forshall paid C. and J. Dunhill £20,000 as a deposit on the Lamborghini motor car which Ms. Miki and Mr. Seki had ordered on the visit in March 1990 to the showrooms of C. and J. Dunhill. Subsequent to the payment of the deposit, Mrs. Forshall received a number of calls from Messrs. Dunhill pressing for more funds as they in turn (they said) were being pressed by the concessionaire whom they identified as Lambo Motors of Ireland Limited and also identified one Timothy McSweeney an Accountant as being its Financial Director. It was then that Mrs. Forshall received a phone call from Timothy McSweeney. He said to her that Lambo Motors of Ireland Limited were the concessionaires of Lamborghini and that if she did not come up with more funds that she would lose out. He indicated that a Belgian had already taken one car and he wanted some £42,500.00 and if it was necessary for her to obtain bridging finance, he indicated that his brother Michael McSweeney who worked in the bank would be able to provide such finance and that he would get Michael McSweeney to telephone her. Shortly thereafter Michael McSweeney did indeed phone Amanda Forshall and said that he was aware that there was a Belgian who would take the Lamborghini Diablo car if Mrs. Forshall did not and that she, Mrs. Forshall, would then lose her deposit. He offered her bridging finance. In the course of that conversation Mrs. Forshall recalls him explicitly reiterating the fact that Lambo Motors of Ireland were concessionaires of Lamborghini in Italy and well respected customers of his bank. Subsequent to the phone conversation between

7. Mrs. Forshall and Mr. Michael McSweeney a contract was sent, dated the 4th May 1990, for the attention of Andrew Gunther who was assisting Mrs. Forshall in relation to the purchase of the car. During May of 1990 Messrs. C. and J. Dunhill backed out of the deal.

8. Mrs. Forshall recalls that it was around that time she was re introduced to Gerard Walsh in Dunhill's showrooms by Christopher Renwick. Mr. Walsh confirmed to her that he was indeed the owner of Lambo Motors and that he was keen to have a showroom in Barclay Square in London. He said that Lambo were the concessionaires for Ireland. He said he hoped to get a concession for England as Chrysler had taken over Lamborgini. A meeting was arranged between Mrs. Forshall and Mr. Walsh for the middle of May at the Marriott Hotel. Mr. Walsh met Mrs. Forshall at the Marriott in the middle of May 1990, Mrs. Forshall was accompanied by a Mr. Seki and a Mr. Kitoaki. Mr. Walsh introduced himself as the owner of Lambo Motors of Ireland and the Japanese present indicated that they were interested in purchasing a second Lamborghini Diablo car. Mr. Seki and Mr. Kitoaki indicated with typical politeness that they would require to establish Mr. Walsh's ability to deliver the Lamborghini Diablo cars and accordingly a further meeting was arranged for the Marriott Hotel some days later in May which was attended by Mr. Walsh, a Mr. Gerard Kean, (a solicitor) Mr. Seki, Mr. Kitoaki and Mrs. Forshall. Kean, who introduced himself as

9. Mr. Walsh's solicitor, reiterated that Mr. Walsh was indeed the owner of Lambo and that Lambo were concessionaires of Lamborghini of Italy. There was a general discussion between the parties on investment in property in both Ireland and France and there was a suggestion that the Japanese might indeed visit Ireland to assess certain investment opportunities. In or about the 22nd May 1990, Mr. Walsh, Mr. Collins, Mr. Coyne, Mr. Seki, Mr. Kitoaki, Mrs. Forshall and a Mr. Lee went as a party to La Touquet in France with a view to looking at a possible investment opportunity which comprised a Casino, a hotel, a leisure complex and a number of golf courses together with accommodation. On their return to England, Mrs. Forshall gave a cheque to Mr. Walsh for £42,500.00, dated the 23rd May 1990, at Northold Airport. The cheque was made payable to Mr. Walsh and it was drawn on an account of Mrs. Forshall and her husband. Mrs. Forshall recalls that almost immediately after she handed over the cheque to Mr. Walsh she received a phone call from Michael McSweeney of the Bank of Ireland who said that the payment of the cheque of £42,500.00 was a sensible idea. He said he looked forward to her Irish visit. When she expressed concern to him as to the absence of any documentation relating to the Lamborghini Diablo cars which she indicated that she needed for the purposes of assigning the benefit of the contract to purchase the cars to her Japanese principals, Michael McSweeney reassured her that Lambo were indeed the concessionaires for Lamborghini motor cars, that they were good customers of his bank, and that his brother was in fact a director of the company.

10. Mr. Michael McSweeney said that Gerard Walsh's uncle was in fact a director of Chrysler and by reason of the fact that Chrysler had taken over Lamborghini, Gerard Walsh could get a concession in Japan if in fact he needed it. On the 29th May 1990, Mrs. Forshall visited Ireland. The trip was arranged by Gerard Walsh and he took Mr. Kitoaki, Mr. Seki and

11. Mrs. Forshall by helicopter to Ballymaloe House for lunch where they met Michael McSweeney, Brendan O'Callaghan and Lloyd Hutchinson, all of the Bank of Ireland.

12. Mrs. Forshall's recollection of being introduced to the Bank of Ireland personnel is not very clear. She recalls being introduced to Mr. O'Callagahn as a Manager of the Bank of Ireland and to Mr. Hutchinson as a Manager of the International Division of the Bank of Ireland. She does not recall being introduced to Mr. Michael McSweeney as the Manager of the Bank of Ireland in Bandon. She recalls that the entire party sat around a large table at lunch and that she was informed some time during the lunch by Michael McSweeney that Gerard Kean and a director of the Bank of Ireland whom she understood was travelling to the meeting, had to turn back because of bad weather. She recalls Brendan O'Callaghan saying that Lambo were the concessionaires of Lamborghini and were good customers of the Bank of Ireland and she recalls also that Lloyd Hutchinson spoke of Gerard Walsh as a highly respected customer of the Bank of Ireland. There was a general discussion on the possibility of investment in a Kinsale site for use as a golf course and there was discussion about the possibility of investing in the La Touquet complex. Mrs. Forshall says that as a result of this meeting in Ballymaloe she felt more confident about her investment in the Lamborghini Diablo motor cars. Indeed, she says when she returned to London she signed contracts to sell the cars to her Japanese clients. Following the meeting at Ballymaloe House, Mrs. Forshall received from Mr. Lloyd Hutchinson, by letter dated 31st May, 1990, the names of certain persons who might be useful to Mrs. Forshall in her dealings with her Japanese clients. In early June 1990, Mrs. Forshall received another call from Michael McSweeney. She recalls expressing concern to him on that occasion that, as yet, there was still no documentation forthcoming in relation to the cars. He suggested that she should get in contact with Timothy McSweeney and that everything would be alright. Mrs. Forshall said that if the deal was to progress satisfactorily her clients would take the entire consignment of Lamborghini Diablo cars. Michael McSweeney said this would be difficult as a Belgian who was interested in a car had already purchased it. In June 1990, Mrs. Forshall had a conversation on the telephone with Gerard Walsh: she said that she would have to have documentation for her Japanese clients and he said he would come over to England. Mrs. Forshall had in fact at that stage stopped the cheque for £42,500 and said she would not reissue this cheque without some correct documentation, in other words proof that the cars could be delivered new and unused from the factory. A meeting took place at the Marriott Hotel on the 7th June, 1990. Present at the meeting were Mr. Kitoaki, Mrs. Forshall and Mr. Gerard Walsh. Mr. Walsh produced certain documents to Mr. Kitoaki. They were as follows:-

13. Mr. Hoogenbrugghen, and

14. The items at 3 and 4 above appeared to form part of the document entitled 'Strategy for Lambo Motors Limited for the coming months'.

15. Mr. Walsh brought Mr. Kitoaki through the accounts of Lambo Motors of Ireland. After the meeting, Mr. Kitoaki took all of these documents and brought them to his office and eventually sent them to his Japanese clients. Copies of the documents were not retained by Mrs. Forshall.

16. After the meeting Mr. Walsh asked Mrs. Forshall for a cheque in lieu of the cheque for £42,500 which had been stopped. Mrs. Forshall went with Mr. Walsh to her apartment and wrote out a new cheque, payable to Gerard Walsh, for £42,500. On the same day the 7th June 1990, Mrs. Forshall got a receipt from Lambo Motors of Ireland for £62,500 which was the addition of the £20,000 that had first been given to Messrs. C. and J. Dunhill and the £42,500 which she had given a cheque for to Mr. Walsh on that very day. Meanwhile Mr. Andrew Gunther indicated that there seemed to be some dispute as to whether or not the premium to be paid in respect of each of the Diablo cars was £100,000 or $100,000.

17. On the 8th June 1990, Mrs. Forshall spoke on the phone to Mr. Timothy McSweeney and he confirmed that the premium was in fact $100,000 not £100,000 in respect of any of the other Lamborghini Diablo cars that might be purchased by her on behalf of her Japanese clients.

18. On 29th June 1990, Mrs. Forshall paid a premium in respect of a Lamborghini Diablo car which had been ordered through her by a Mr. Ozaki. The premium was £50,000. Mrs. Forshall paid the premium by way of a cheque made payable to Gerard Walsh and Partners and drawn on an account of herself and her husband.

19. During July and August 1990, the Japanese clients of Mrs. Forshall were expressing interest in the purchase of further Lamborghini Diablo cars and by the end of July or early August the situation had been arrived at where there was a demand for a further five cars. At the same time Mr. Ozaki wished to withdraw from the purchase of his Lamborghini Diablo car.

20. Accordingly, Mr. Kitoaki spoke to Mr. Walsh on or about the 10th August 1990, and it was agreed between them, according to Mr. Kitoaki, that the £50,000 would be apportioned as to a £10,000 deposit on each of five cars which Mr. Kitoaki indicated the Japanese principals intended to purchase. Mrs. Forshall recalls that towards the end of August she received a call from Michael McSweeney who gave her Gerard Walsh's account number to send monies to; he said to her that such monies were for Gerard Walsh, as Gerard Walsh had paid monies of his own to secure the Lamborghini Diablo cars.

21. On the 28th August 1990, Timothy McSweeney said that Amanda Forshall owed Walsh £104,000 in respect of the cars. On the 28th August, the same day Mr. Biggnall, Mrs. Forshall's solicitor, sent $300,000 for the attention of McSweeney. And on the

22. At the end of August 1990, a further meeting took place at the Marriott Hotel. It was attended by Mr. Seki, Mrs. Forshall, Mr. Kitoaki and Mr. Walsh. Mr. Walsh said that he could supply the first Lamborghini Diablo car into Japan. Mr. Seki was very interested in this proposal; Mr. Walsh suggested a date for such a delivery of the car into Japan of

23. Mr. Walsh was regularly on the phone to Mrs. Forshall concerning the Lamborghini motor cars.

24. On the 28th September 1990, Mrs. Forshall's Japanese principals placed a further order for three cars with her through Mr. Seki. Mrs. Forshall told Timothy McSweeney who seemed to know already of this fact from Gerard Walsh.

25. On the 3rd October, 1990 Mrs. Forshall phoned Timothy McSweeney. She said she understood she was being accused of cutting Gerard Walsh out of the Lamborghini Diablo deal. She said that Bank of Ireland and the Accountants to Lambo had represented that he, Gerard Walsh, had a role in the Company. Timothy McSweeney said to her that he needed to speak to his fellow directors and that he would phone her back. He phoned her back and said (to her surprise) that Gerard Walsh had nothing got to do with Lambo and that he had in fact embezzled over £150,000 of money. This was money she said that Michael McSweeney had told Mrs. Forshall to send to him. Mrs. Forshall said that she was going to go to the police. Timothy McSweeney became, according to her, very aggressive. He said that Mrs. Forshall would only get four cars though she had in fact a contract for six. Timothy McSweeney said that he would get Mr. Hoogenbrugghen to speak to her. Mrs. Forshall spoke to Hoogenbrugghen on 3rd October, 1990 and he said that Walsh had nothing got to do with the company, that money had gone missing and that she could not get all the cars that she wanted. He said she should come to the South of France to meet him.

26. On 4th October, 1990 Mrs. Forshall was contacted by Gerard Walsh. She queried his ownership of Lambo Motors. He said to her that he would have her children killed and that he knew people in the IRA. He said that Mrs. Forshall should not go to the South of France and that his life was in danger from Hoogenbrugghen who had Corsican connections and was a tax exile and a fugitive from Justice.

27. On 5th October 1990, Gerard Walsh called to Amanda Forshall's house at about 11 o'clock. Mrs. Forshall was in bed ill and her husband and her house keeper were there. Mrs. Forshall says that Mr. Walsh was hysterical when Mrs. Forshall said that she would not see him. Eventually she did see him. She got her secretary to type up a receipt for him to sign in respect of the £50,000 cheque that she had given to him. He signed the receipt but added the words "for investment in golf course project in Kinsale". Gerard Walsh said on that occasion (5th October, 1990) to Mrs. Forshall that he owned 40% of the Company through a family trust.

28. On 6th October, 1990, Mrs. Forshall went to Nice in the South of France. She met a Mr. Vermandele in a hotel in Nice. Mr. Vermandele was Mr. Hoogenbrugghen's lawyer. She indicated to him that certain funds had gone missing. Vermandele denied that Mr. Walsh was entitled to 40% of Lambo Motors of Ireland. Mr. Vermandele said that only four cars could possibly be purchased by Mrs. Forshall as they had not received all of the monies from Gerard Walsh. Mrs. Forshall showed all the documents she had in her possession and the receipt she had for the monies that she had paid. Mr. Vermandele said that these were concocted. Mr. Hoogenbrugghen whom she met said that Timothy McSweeney was an incompetent person. He proposed a compromise suggesting that if she purchased an extra three cars and paid a premium of £100,000 sterling for each of those cars (as opposed to $100,000 each) then she would be in a position to obtain all nine of the Lamborghini Diablo cars. On her return to England she telephoned Timothy McSweeney and inquired of him whether he was going to the Garda Siochana in respect of the fraud which he believed had occurred. She says that he laughed when she asked this question. In discussing Christopher Renwick's role in the matter, Timothy McSweeney said to her that he had a loan with the bank and they, [meaning himself and his brother] "would sort him out".

29. On 8th October, 1990 Michael McSweeney telephoned Amanda Forshall and said that he had been asked to call by the Directors of Lambo: he said that Gerard Walsh had nothing to do with the Company and that there had been problems internal to Lambo since the 4th October, 1990. Mrs. Forshall asked how could she know whether or not she was going to get any of the cars in respect of which she had paid sums of money. Michael McSweeney said that Lambo Motors of Ireland were concessionaires and that the compromise that she had entered into with Mr. Hoogenbrugghen, whereby she would purchase nine cars was sensible in all the circumstances. Mrs. Forshall told him of the threats made by Gerard Walsh and Michael McSweeney made light of them, he said he did not think it would be a good idea to go to the Gardai.

30. By an advice note of the 9th October, 1990 Mrs. Forshall got from Timothy McSweeney details of the chassis numbers of each of the nine cars and by a letter of the same date he got a memorandum of an agreement in relation to the nine cars. As of that date she had not in fact agreed to purchase the nine for the extra premium. She had paid at that stage premiums in relation to six of the cars, but not the extra three premiums of Stg.£100,000 which Mr. Hoogenbrugghen had suggested.

31. By letter dated 10th October, 1990 Mrs. Forshall received details from Messrs. O'Brien Cahill stating who were the directors and shareholders of Lambo Motors of Ireland Limited. Mr. Walsh was not recited as being either a director or a shareholder.

32. Mr. Timothy McSweeney was reciting as being both a shareholder and a director.

33. By letter dated 15th October, 1990 addressed to Mrs. Forshall Lambo gave details of the colours of each of the nine cars and their chassis numbers and by letter dated the 22nd October, 1990, Lambo gave to Mrs. Forshall confirmation of delivery on the 22nd of November, 1990 of three cars and giving the chassis numbers of each of the three cars to be delivered on that date.

34. Over the next few days there was discussion between Timothy McSweeney and Mrs. Forshall as to how the three extra premiums might be paid. Timothy McSweeney indicated that Michael McSweeney had opened a joint account in the name of Timothy McSweeney and herself in the Bandon branch at the Bank of Ireland into which the monies might be put. Timothy McSweeney then suggested that Amanda Forshall might give a letter of credit without any conditions which she was not prepared to do.

35. Finally in their conversations in those days between the 24th October, 1990 and the 4th November, 1990. Timothy McSweeney assured her that Lambo was taking action against Gerard Walsh in respect of the monies which he had received and not passed on to Lambo.

36. On 5th November, 1990 Michael McSweeney again called Amanda Forshall. He said that he was aware that she had rejected the idea of a joint account. He agreed that the idea of having a solicitor's client account into which the monies could be paid was probably the best idea. He suggested that the monies would be held until the last three cars were delivered. He led Mrs. Forshall to believe that the monies would not be touched until the three cars in fact had been delivered and he assured her that the cars would indeed arrive.

37. On 6th November, 1990 there was a meeting in Mrs. Forshall office. It was attended by Mr. Bignall, her solicitor, her husband, Timothy McSweeney, her house keeper and her secretary. It started according to Mrs. Forshall at about 7.30 p.m. and lasted until midnight. Timothy McSweeney, she recalls, said that Lambo was going to recover the missing monies from Mr. Walsh. She recalls Mr. Timothy McSweeney 'phoning Hoogenbrugghen in relation to the compromise namely the purchase of all nine cars. It was agreed, she says, that the cars would be purchased at the list price of £87,000 plus the increased premium of Stg.£100,000 for each of the last three cars. The agreement was typed up and the chassis numbers of the cars were put in. Timothy McSweeney she recalled making several phone calls to Mary O'Brien Daly. Mrs. Forshall signed the agreement herself. Mr. Hoogenbrugghen did not want to put the chassis numbers in, but Mrs. Forshall's husband and Mr. Bignall insisted that they be put into the agreement. Mrs. Forshall heard Timothy McSweeney say to Mary O'Brien Daly that payment of the last three premiums would be held pending proof of delivery of the cars. Mr. Bignall she recalls read the letter of undertaking that he gave to Mary O'Brien Daly.

38. The agreement which was executed on 6th November, 1990 was between Lambo Motors of Ireland Limited and Fine Arts and Collections Limited and what it provided for in effect was the following: firstly that Lambo would sell to Fine Arts, nine cars, the chassis numbers and colours of which were set out in the agreement and that the price for each of those nine cars would be Stg.£87,000; and in addition to the price to be paid of Stg.£87,000 that Fine Arts would pay premiums in relation to each of the cars and that in respect of three of the cars a premium of Stg.£100,000 would be paid, and, as to the remaining six, US $100,000 would be paid.

39. The agreement acknowledged that as of the date of agreement the purchaser owed to the vendor Stg.£300,000 only being the balance of the premiums. In relation to that balance of premiums it was agreed that it would be paid on 16th November, 1990 by telegraphic transfer into the client account of Mary O'Brien Daly, Solicitors of Academy House, Academy Street, Cork. In relation to the delivery dates of the cars the agreement provided that the first three cars would be delivered on the 22nd November, 1990, the fourth car on 30th November, 1990 and the remaining cars on or before the 31st December, 1990.

40. The agreement further provided that if the vendor Lambo had not delivered or caused to be delivered by the 28th February, 1991 the nine cars the purchaser was to be entitled to rescind the agreement in respect of such cars and the vendor required to refund the purchaser all sums paid in respect of the car together with interest at 4% per annum above the base rate from time to time of Midland Bank PLC said interest to accrue from the due date of delivery. The undertaking given by Mr. Anthony Bignall on the 6th of November 1990 to Lamber Motors of Ireland Limited was in a written form and was as follows:-

41. Pursuant to the undertaking on the 16th November 1990, Mr. Bignall arranged for the transfer of Sterling £300,000-00 to the client account of Mary O'Brien Daly. Shortly before the first delivery date, being the 22nd November 1990, Timothy McSweeney informed Amanda Forshall that there would be a delay of about one week before the first delivery. There was no delivery of any Lamborghini Diablos in the week following the 22nd of November 1990 or indeed in the first three weeks of December 1990. On the

42. Mrs. Forshall along with Mr. McSweeney and Mr. Yamamoto, went to Frankfort with a view to seeing whether, given the failure to deliver the cars in accordance with the agreement, it might be possible to procure the purchase of a car on the "grey" market. Whilst it was expected that when they arrived in Germany they would actually see and take delivery of a Lamborghini Diablo car, the German owner of the car (who was asking for DM920,000-00 for the car) would not even show Mrs. Forshall and Mr. Yamamoto the car until they produced the purchase moneys for the car. In consequence, neither Mrs. Forshall or

43. Mr. McSweeney or Mr. Yamamoto saw the car that was allegedly available for sale.

44. Mr. McSweeney, however, on this visit, assured Mrs. Forshall that he could in fact deliver the nine cars not later than the 16th January, 1991. On the 13th January 1991, Mrs. Forshall travelled to Macroom with Tarka King; they had lunch with Mr. Timothy McSweeney and they met two other people from O'Brien Cahill, Chartered Accountants. They walked around Macroom and were shown the office of Tim McSweeney. He showed them metal Lamborghini seals and said to them "if we are not agents how have I these on the desk". Mrs. Forshall was also shown a Lamborghini logo; and after a drive around the factory by Timothy McSweeney they then returned to Cork and flew back to London. No cars arrived by the 16th January 1991; Mrs. Forshall spoke to Mr. Timothy McSweeney who said he could deliver cars only if Mrs. Forshall paid £347,000-00 to him. He said that Mrs. Forshall should speak to Michael McSweeney. On the 24th January 1991, a letter of demand was received by Mrs. Forshall in the sum of £348,000-00 for "delivery of cars next week". On the 25th January 1991, Mrs. Forshall phoned Mr. Michael McSweeney. He indicated that as the first four cars were about to arrive they had to have the list price of those cars and that the money for the cars should be paid into the Lambor account in Bank of Ireland. His suggestion to pay monies into the Lambor account with the Bank of Ireland arose by reason of the fact that Mrs. Forshall mentioned that she had shortly prior thereto received a phone call from Mr. Hoogenbrugghen asking her to pay the £348,000-00 into his personal account and Mr. Michael McSweeney was cautioning against doing this and indicated that the money should be paid into the Company's account. By letter dated the 27th January 1991

45. Mr. Hoogenbrugghen's lawyers purported to cancel the contract for the sale of the nine Lamborghini Diablo cars. On that same date the 27th January 1991 Mrs. Forshall phoned Michael McSweeney and told him that she had spoken to her Solicitor Denis Murnaghan and that she had been advised to seek Marava Injunctions. Michael McSweeney phoned back and said that Timothy McSweeney would attend the offices of Mr. Murnaghan; Michael McSweeney reiterated the fact that there were dangerous parties and said that proceedings would be protracted.

46. In cross-examination of Mrs. Forshall by Counsel representing Timothy McSweeney it was put to her that she knew at all material times that she was not getting the correct chassis numbers and was aware that she was not getting them because Lambo believed that if she did she would source the cars directly. It was also put to her in cross-examination that she knew at all times that the cars were being sourced on the 'grey' market. In cross-examination by Counsel on behalf of Bank of Ireland it was put to her that there had been no phone calls from Michael McSweeney to her prior to the meeting in Ballymaloe House on the 29th May 1990. It was also put to her that the bank officials present at the meeting in Ballymaloe did not recall and would say that there was no reference to any Lamborghini cars during the course of the meal at Ballymaloe House.

47. Mr. Guhen Kitaoki gave evidence that he acted as an interpreter for Mr. Seki during the year 1990. He said that in May 1990 he attended a meeting in the Marriott Hotel along with Mr. Walsh, Mrs. Forshall and Mr. Seki. He recalled Gerard Walsh saying that his uncle was part of Chryslers' Management and of the Marriott Hotel and that he, Mr. Walsh, was the owner of Lambo. He recalls Mr. Walsh saying that Lambo were the newly appointed agents of Lamborghini; he recalls Mr. Walsh saying that Portmans were the official concessionaires of Lamborghini for the United Kingdom but he, Mr. Walsh, could take certain of that concession away. Chrysler, said Mr. Walsh, had purchased Lamborghini and his uncles' connection with Chrysler meant that he could get Lamborghini cars, Mr. Walsh said he could supply Lamborghini cars to Mrs. Forshall. At another meeting in the Marriott Hotel in May 1990 at which Mr. Walsh, Mr. Kean, Mr. Seki and Mrs. Forshall attended,

48. Mr. Kitaoki recalls Mr. Kean being present and being introduced as Mr. Walsh's Solicitor. Mr. Kitaoki recalls a similar presentation being made as at the previous meeting in the Marriott Hotel in respect of Lambo Motors and Mr. Walsh saying that he could produce cars if there were any orders for them. Orders for six cars were discussed according to

49. Mr. Kitaoki. Finally, Mr. Kitaoki recalls a discussion about visits to both France and Ireland. On the 29th May 1990 Mr. Kitaoki along with Mr. Seki and Mrs. Forshall flew to Cork and stayed overnight. They went to Ballymaloe the following day. When they reached Ballymaloe they met three representatives of the Bank of Ireland Mr. Walsh and an assistant of his. Mr. Kitaoki recalls Mr. Lloyd Hutchinson of the Bank of Ireland, giving him his card; he does not recall Mr. O'Callaghan or Mr. Michael McSweeney of the Bank of Ireland giving any cards. Mr. Kitaoki's understanding was that a more senior official of the Bank of Ireland was to come with Gerard Kean but due to weather conditions did not arrive. Michael McSweeney found this out, Mr. Kitaoki believes, during the course of a phone call. Mr. Kitaoki recalls Brendan O'Callaghan say that Walsh was a good client and that Lambo was a good and reliable and healthy company. He recalls also Mr. Seki having discussions with Mr. O'Callaghan and Mr. Lloyd Hutchinson in relation to doing business in Ireland.

50. On the 7th June 1990, Mr. Kitaoki attended another meeting at the Marriott Hotel in London: present at the meeting were himself, Mrs. Forshall and Mr. Walsh. The reason for the meeting, as Mr. Kitaoki recalls, was that the Japanese principals wanted certain assurances as to the standing of Mr. Walsh and the Lambo Company. Mr. Kitaoki recalls Mr. Walsh producing firstly the accounts of Lambo secondly a Belgian car buyer document thirdly a Bank of Ireland reference in relation to Hoogenbrugghen fourthly a Bank of Ireland reference in relation to Lambo fifthly a letter indicating that Lambo were concessionaires of Lamborghini sixthly a strategy document for Lambo and seventhly an accountants report. These documents were given to Mr. Seki whose secretary apparently faxed them to Japan. Mr. Kitaoki felt that those documents would reassure the Japanese buyers; indeed he believed Mr. Walsh advanced them as documents which would offer reassurance and in fact went through the Lambo accounts with Mr. Kitaoki. Mr. Kitaoki said that Mr. Walsh knew the documents were being sent to Japan. Mr. Kitaoki recalls Mr. Walsh saying again at this meeting that Lambor Motors could secure orders for any Lamborghini cars. In July 1990, Mr. Ozakki, one of the Japanese purchasers of the Lamborghini Diablos that had been ordered by Mrs Forshall, wanted details about his car including the chassis number of the car.

51. Mrs. Forshall was away. Mr. Kitaoki spoke to Mr. Walsh and Mr. Walsh promised that he would provide the information in relation to the chassis number of the car. Mr. Walsh however did not provide that information and Mr. Ozaki decided that he would pull out of the transaction. Mr. Kitaoki told Mr. Walsh of Mr. Ozaki's attitude and it was agreed between Mr. Walsh and Mr. Kitaoki that the sum of £50,000-00 that had been paid as a deposit on

52. Mr. Ozaki's car would be apportioned amount five other cars to be purchased by the Japanese.

53. In October 1990 Mr. Kitaoki recalls that he had a meeting with Mr. Walsh and said to him that there were rumours that he, Mr. Walsh, was not the owner of Lambo Motors he recalls that Mr. Walsh responded by saying he was part owner. He also recalls at that time that Mr. Walsh offered to deal directly with Mr. Seki in relation to the purchase of Lamborghini Diablo cars and indicated to him that he could provide six of such cars to his Japanese principals. At a meeting in November 1990, at the Marriott Hotel in London at which Mr. Seki, Mr. Walsh and Mr. Kitaoki was present, Mr. Kitaoki recalls that Walsh wanted to deal with Seki and not deal with Amanda Forshall he recalls Mr. Walsh saying that if there were customers there would be cars and again he said he was the owner of Lambo Motors.

54. Andrew Gunther was involved in 1990 in the motor trade restoring XJ Jaguars. Part of his business also involved the purchase of classic cars for customers. He was introduced to Mrs. Forshall by Tarka King and while not entirely clear from the evidence it does appear that Mr. Gunther was retained by Mrs. Forshall to act on her behalf in relation to the purchase (of the Lamborghini Diablos) that she was contemplating on behalf of her Japanese principals. Mr. Gunther gave evidence of having met Timothy McSweeney who expressly told him that Lambo were the concessionaires of Lamborghini Motors for Ireland. Indeed, Mr. Gunther's recollection is that Timothy McSweeney held Lambo Motors out as the "concessionaires in waiting" for the United Kingdom. Timothy McSweeney showed

55. Mr. Gunther the company seals and note paper of Lambo Motors. Finally, Mr. Gunther recalls Mr. McSweeney indicating that his brother was a Manager of the Bank of Ireland. Mr. Gunther gave evidence that Mr. Michael McSweeney in fact rang him and said he was the Manager of the Bank of Ireland. Mr. Gunther recalls that Mr. Michael McSweeney rang him several times to reassure him that both Bank of Ireland and Michael McSweeney were overseeing the money that was being provided by Mrs. Forshall and that it was safe. He recalls having three to four conversations with Mr. Michael McSweeney, Michael McSweeney, in one of those conversations, asked him whether there was anything he could do "to make the deal happen". Mr. Gunther rang Michael McSweeney once and said "we really have to make this deal go ahead" and Michael McSweeney, he recalls, replied "yes as there is money in it for all of us". In addition to speaking to the McSweeney brothers,

56. Mr. Gunther also spoke to Mr. Hoogenbrugghen by telephone. Hoogenbrugghen he recalls said that Lambo were able to supply Lamborghini cars and that a Mr. Sgarzi was his 'contact' man. He recalls asking for the chassis numbers but that Mr. Hoogenbrugghen would not provide him with the chassis numbers but sent them to Mrs. Forshall. Mr. Gunther eventually got the chassis numbers by fax and as soon as he had them he realised that they did not relate to Lamborghini cars. Mr. Gunther gave evidence of another phone conversation with Mr. Hoogenbrugghen when he invited Mr. Gunther to France to authenticate the cars and in return for such authentication was promised he would receive the sum of £50,000-00, Mr. Gunther decided that this was in substance and in fact a bribe and decided that he would not go to the South of France for that purpose. Finally, Mr. Gunther recalls having two telephone conversations with Mary O'Brien Daly: the first one was to confirm that deposits had been paid and to confirm the payment to him of a commission fee; he says that he was paid commission of £5,000-00 and he recalls Mrs. O'Brien Daly saying that subject to the deposits being paid cars would be available.

57. Tarka King was the father-in-law of Andrew Gunther and he gave evidence that he was involved in a partnership restoring old jaguars with Mr. Gunther; he recalls that in May 1990 Mrs. Forshall came down to Warminster and spoke to his son-in-law Andrew Gunther she explained her interest and told him that she had Japanese clients behind her. In September 1990 Mr. King suggested to Mrs. Forshall that she should have a look on behalf of her clients at some Irish Estates. In consequence she, together with Mr. King, travelled to Ireland and he showed her certain estates including the estate of his uncle, Castle Leslie. Mr. King recalls being in Mrs. Forshall's apartment late in the evening of the 6th November 1990 where he met Timothy McSweeney who said that he had a brother who was a Manager in the Bank of Ireland and that he himself was an Accountant. On the 2nd December 1990 Mrs. Forshall and Mr. King were invited to go to Tokyo on an eight day trip; while they were there a fax was received from Mrs. Forshall's secretary stating that no delivery of Lamborghini cars would occur until the 28th February 1991; Mr. King said that Mrs. Forshall was distressed when she received this news. Mr. King gave evidence of having received a call in December 1990 from a person who identified himself as Brendan O'Callaghan asking had he any cash to keep the project going and that he, Mr. King, had replied that he had not. On 13th January 1991, Mr. King visited Ireland with Amanda Forshall; they met

58. Mr. McSweeney who he recalls wanted an extra £90,000-00 if the cars were to come. Timothy McSweeney referred to the fact that there were monthly batches of cars coming from Lamborghini and said to both Mr. King and Mrs. Forshall that Mr. Gunther and

59. Mr. Walsh had caused problems and both had embezzled monies. On 27th January 1991

60. Mr. King was in Mrs. Forshall's kitchen in Paulton's Square when two phone calls were received from Michael McSweeney. Mr. King described the phone calls as 'heated'. He says that he overheard Michael McSweeney saying to Mrs. Forshall that she had to send over between £260-£300,000-00 or she was 'in the shit'. He recalls Mrs. Forshall ringing Michael McSweeney in order to get his brother Timothy McSweeney to go to Denis Murnaghan's office in Dublin.

61. Brendan Foster an Accountant in the firm of Accountants Farrell Grant Sparks gave evidence to the effect that Mercantile Bank had advanced to Lambo a sum of £1.9m to purchase four Ferraris and a Lamborghini Jeep the Bank took security in the form of a chattel mortgage on the 22nd June 1990. A receiver was appointed on foot of the chattel mortgage on the 3rd September 1990 and on the 4th September 1990 the receiver wrote to Timothy McSweeney advising him of his appointment. Mr. Foster said that Timothy McSweeney was uncooperative and failed to produce the underlying documents relating to the subject matter of the chattel mortgage.

62. Peter Barnett gave evidence describing himself as a dealer in 'expensive' motor cars. He said that in November 1990 Andrew Gunther was trying to sell to him three Lamborghini Diablo cars. He said he spoke to Amanda Forshall, Michael McSweeney and Mr. Hoogenbrugghen; he said that Andrew Gunther asked him to ring Michael McSweeney. On the 9th November 1990 Mr. Barnett rang Michael McSweeney at Bank of Ireland in Bandon. He ascertained from Michael McSweeney that he was the Manager of the branch and Michael McSweeney said that the Bank of Ireland was acting on behalf of Lambo and that Lambo banked with Bank of Ireland. Michael McSweeney said to Mr. Barnett that Lambo were the official concessionaires of Lamborghini for Southern Ireland. Michael McSweeney according to Mr. Barnett said that the firm was one which had a sound financial standing. Andrew Gunther had been asking for a deposit of £80,000-00 per car and Michael McSweeney observed that any money that would go through the Bank of Ireland would be safe. Michael McSweeney said he had seen the cars and the relevant documentation. On the 19th November 1990 Mr. Barnett procured a letter of undertaking from his Solicitors to be given to the Bank of Ireland to show his willingness and ability to purchase the cars. Under cross-examination, Mr. Barnett said that he was in the Lamborghini factory in Italy in December of 1990 and he met with Mr. Sgarzi. He knew then that Lambo were not and would not be concessionaires of Lamborghini. He also said that on the 16th November 1990 that Mr. Christopher Renwick had sent a letter with the chassis numbers of the Lamborghini Diablos he was considering purchasing, and that a week later he discovered that these chassis numbers were false.

63. Mary Archer - Shee gave evidence that she was in the first Plaintiff's apartment at 12.30 on the 6th April 1990 when a phone call was received at the apartment. She took the phone and a man answered who said that he was Michael McSweeney the Manager of the Bank of Ireland in Bandon.

64. Michael Kraemer in evidence said that he was a german national who lived in Germany and that he had a business called Kraemers Fine Automobiles and that he specialised in buying and selling 'exclusive' cars. He said that he was asked the price of a Lamborghini Diablo by a Mr. Baste a friend of Mr. Hoogenbrugghen he said that he gave him a price, which he was told was too expensive. Mr. Hoogenbrugghen eventually offered DM595,000-00 for a Lamborghini Diablo. Mr. Hoogenbrugghen was discussing the possibility of purchasing ten such cars from Mr. Kraemer. Mr. Hoogenbrugghen arranged an appointment to meet Mr. Kraemer at an airport Hotel on the 2nd February 1991.

65. Mr. Kraemer went to the Hotel where he met Mr. Hoogebrugghen who introduced him to a person he described as Timothy McSweeney the Manager of Lambo Motors of Ireland. At that stage Mr. Kraemer said that he had one Lamborghini Diablo car and he was in a position to organise three other cars. In addition he had an option on five further cars which would arise by the end of February 1991. The price of DM 595,000-00 was agreed in respect of each of the Lamborghini Diablo cars. Mr. Kraemer said he was to get a number of cheques which he did in fact get from Lambo Motors of Ireland. The cheques were dated and drawn on the 2nd February, 1991 but they were returned after presentation with a note on them saying that the High Court had frozen the account of Lambo Motors of Ireland. Mr. Kraemer said that he prepared one of the Lamborghini Diablos for shipment to Japan and indeed had gone to the extent of procuring an airways bill in respect of the consignment of the car, but he would not allow the car be transhipped to Japan until he was paid for the car, which of course never occurred. Mr. Kraemer says that in all he lost DM 2m in relation to the deal with

66. Mr. Hooganbrugghen.

67. Mr. Gerard Walsh said that he was a Quantity Surveyor. He said that he had a practise in London (as well as in Ireland) which he attended to on Thursdays and Fridays of each week. He said that he met Mrs. Forshall in early 1990 at Christopher Renwick's Kinsale house. She said that she had clients who were interested in golf courses in Ireland. As it happened, Mr. Walsh, together with a Mr. Madson and Mr. Renwick, was developing a site at Kinsale for a golf course and he was financing the project through the Bank of Ireland in Bandon. After meeting Mrs. Forshall in Kinsale, Mr. Walsh made several phone calls to her advising her of the progress of the Kinsale site which she was interested in. Mr. Walsh says that among the work that was done on the development of the Kinsale site was the preparation of an environmental impact study, negotiations in respect of the purchase of certain sites and sketches prepared by the firm of Arnold Palmer & Co. He said that Mrs. Forshall was aware of all this work being done in relation to that particular site. In mid May 1990, Mr. Walsh says that he met Mrs. Forshall at the Marriott Hotel in London and she was accompanied by Mr. Seki and Mr. Kitaoki. He said the golf courses were discussed by them at that meeting and that there was no discussion about cars and in particular no discussion about Lamborghini cars. He said he made no representation whatsoever about having an uncle in Chrysler or in the Marriott Hotel. He acknowledged that on a number of occasions during the meeting

68. Mrs. Forshall had referred to him as either the owner or the part owner of Lambo Motors of Ireland and that he queried this. He believed that she was getting 'kudos' with the Japanese in referring to him in this manner as owner or part owner of Lambo. Mr Walsh arranged the Irish trip with Mrs Forshall which involved lunch at Ballymaloe on the 29th May, 1990. As already indicated, present at that meeting were Michael McSweeney, Brendan O'Callaghan, Lloyd Hutchinson, Mr Collins, Mr Walsh, Mrs Forshall, Mr Seki and Mr Kitaoki.

69. Mrs Forshall had, since the Marriott meeting, asked Mr Walsh (according to him) to act as a go-between between Lambo and her as she was having difficulties with Dunhill. Mr Walsh says that he agreed to do this. At Ballymaloe he says there was no discussion whatsoever in relation to cars during a meeting which he believed lasted some three hours. Mr Walsh's recollection is that the visit to La Touquet, which he accompanied Mrs Forshall on, took place in early June as opposed to preceding the meeting in Ballymaloe. He says that the visit was designed by him so that Mrs Forshall could look at golf courses and other recreational facilities and that he, Mr Walsh in fact paid for the trip. Mr Walsh says that six cars were invoiced to him between June and August 1990, all Lamborghini Diablos. He said that both Lambo and Mrs Forhshall allowed that he would get £10,000 per car by allowing his name appear on the invoice. He said that Timothy McSweeney and Hoogenbrugghen had said to him that they needed to invoice a person within the country. Mr Walsh recalls the meeting in the Marriott hotel in June, at which Mr Seki, Mrs Forshall, Mr Walsh, Mr Kean and

70. Mr Kitoaki attended. Mrs Forshall, he said, wanted an Irish Solicitor for the golf course project and other detailed transactions. Mr Walsh does not recall that there was any discussion on cars during this meeting or whether or not Lambo was a concessionaire of Lamborghini or of his own involvement with Lambo Motors of Ireland Limited. Mr Walsh says that he got the accounts of Lambo and other documents and gave them to Mrs Forshall at a meeting. He says he read the documents himself; they showed the ownership of the company and the significant figures for the company. He said he did not hand over, to his recollection, any references. He said he got the references in the context of his own possible investment in Lambo. He said that he understood from Hoogenbrugghen that Lambo had an arrangement to get eight cars from Lamborghini in 1990 and that he, Gerard Walsh, was happy they could produce the cars. He does not recall any letter from Lamborghini being handed over by him to Mr Kitoaki or Mrs Forshall. He says that the £50,000 that was paid by Mrs Forshall to him was to defray the ongoing costs of the Kinsale project. It was not a payment for Lambo. The next cheque received by Mr Walsh from Mrs Forshall was for the sum of £104,166. From the proceeds of this cheque, Mr Walsh deducted £74,000 and sent on the balance to Lambo Motors of Ireland Limited. Mrs Forshall's evidence of course, is to the effect that this represented deposits in respect of the Diablo cars. Mr Walsh on the other hand gave evidence that portion of the £74,000 which he deducted was payment to him for work which he had done on a project at Kensington Palace Gardens, where he said that he employed five people for three months working on a survey for Mrs Forshall and her Japanese clients. He said that he instructed an Architect for the purposes of the survey and that Mrs Forshall was wrong to suggest that he was only entitled to a success fee. He said that he never worked that way, he worked to a brief and expected to be paid for it. Of the sum of £74,000 deducted, Mr Walsh later in his evidence indicated that £50,000 of that would represent commissions on six of the cars which had been ordered by Mrs Forshall on behalf of her Japanese clients and £24,000 was attributable to the Kensington Palace Garden project. Mr Walsh said that Mr Michael McSweeney was aware that the monies that came into the account were being deducted by Gerard Walsh and that he was passing on the balance of those monies and he also says that he told Timothy McSweeney of his deduction of £74,000 from the sum of £104,166 that had been received by him. Mr Walsh said that

71. Mr Hoogenbrugghen had told him many times that he had an arrangement to get eight Lamborghini cars from Lamborghini during 1990. Gerard Walsh told Mrs Forshall that Lambo had eight cars available. He said finally that he himself did not know if they, Lambo Motors of Ireland, were actually concessionaires of Lamborghini.

72. Gerard Kean said that he had been asked by Gerard Walsh to attend a meeting at Ballymaloe on the 29th May, 1990. He, Gerard Kean, had said he would bring along a Director of the Bank of Ireland to the meeting. He said that he was unable to attend the meeting due to adverse weather conditions. He had started the journey to Ballymaloe in a helicopter but was forced to return because of the weather. Mr Kean said that he later attended a meeting at the Marriott Hotel in London where he met Mrs Forshall and three Japanese persons, he attended in the company of Mr Gerard Walsh. He recalls a discussion as to various investment opportunities. He denies ever having said that Gerard Walsh was the owner of Lambo or that Lambo were concessionaires of the Lamborghini Motor Company.

73. At all material times to these events, Timothy McSweeney was employed in a firm of Accountants called O'Brien Cahill & Company. He himself was not in fact a qualified Accountant but he was a member of the Institute of Taxation. Timothy McSweeney first met William Hoogenbrugghen in August 1989. Mr Hoogenbrugghen was experiencing marriage difficulties at the time and other difficulties as well - his assets had been frozen in Holland and he was, in effect, a tax exile. He discussed with Timothy McSweeney the possibility of obtaining an agency for Lamborghini cars. He said that he had met Mr Sgarzi, the Marketing Director of Lamborghini. Timothy McSweeney prepared a document for submission to Lamborghini and Mr Hoogenbrugghen met Mr Sgarzi of Lamborghini to discuss the matter further. In November, 1989 Timothy McSweeney produced a document for potential investors in Lambo. That document was entitled "Strategy for Lambo Motors for coming months". By a letter dated the 3rd November, 1989 Mr Sgarzi informed

74. Mr Hoogenbrugghen and Timothy McSweeney that "your area is assigned to our local concessionaire and nothing can be done at present". Mr Hoogenbrugghen's plan was that a company would be established which would purchase Lamborghini jeeps and cars and if the company was successful in its disposal of the cars, that might persuade Lamborghini to give to the company a concession in respect of the sale of its cars. Timothy McSweeney was sceptical, he says, of this plan, but went along with it. As a result of the plan, Lambo Motors of Ireland was incorporated with a logo designed by Hoogenbrugghen. The company raised £600,000 from Mercantile Credit and other investors for the purposes of purchasing Lamborghini cars. Shortly after its incorporation the company engaged in the following transaction namely the purchase of a Lamborghini jeep and two Lamborghini Kountaches. This was done with the aid of a Mercantile Credit loan of £450,000 and some private investors. There followed a second transaction - the purchase of four Ferraris with a Mercantile Credit loan of £1.78 million and finally, the purchase of company premises for the price of £220,000 which was done with the assistance of a loan of £120,000 from Bank of Ireland, Bandon branch. At the 30th April, 1990 Timothy McSweeney had prepared a statement of affairs as at that date for the company Lambo Motors of Ireland Limited. The statement of affairs showed the value of the building which had been purchased for £220,000 as now having a value of £600,000 which Mr McSweeney explained was its reinstatement cost, and it also showed commissions receivable by the company of £1,875,000 which

75. Mr McSweeney explained were commissions which were due to Mr Hoogenbrugghen and which he, Mr Hoogenbrugghen, had said he would put into the company. When cross-examined about these commissions receivable, Mr Timothy McSweeney indicated that they were to be put into the company by Mr Hoogenbrugghen by way of gift to the company. While Mr Timothy McSweeney was both a director and a shareholder of Lambo, he told the Court that he held his share for the benefit of Mr Hoogenbrugghen who was the beneficial owner of the entire of the issued shares in the company. Timothy McSweeney swore that he never stated to any person that Lambo was a concessionaire of Lamborghini. However, he did believe that there was an agency arrangement between Mr Hoogenbrugghen and Sgarzi to supply cars to Lambo. It was not until May, 1990 that Timothy McSweeney first heard of Amanda Forshall's name. During that month, Messrs C and J Dunhill sent the £20,000 to Lambo Motors of Ireland Limited. During the month of May 1990, Timothy McSweeney spoke to Amanda Forshall by phone. In this phone conversation Mrs Forshall expressed her concern about the absence of any details on the car which was being purchased and in respect of which the £20,000 had been paid. Timothy McSweeney denies that he indicated to her that his brother, a Bank Manager, would phone her and he also denied that Mrs Forshall referred to Gerard Walsh during the course of the conversation as the owner of Lambo. In the month of June, 1990, Mercantile Credit repossessed the Ferraris that had been purchased for £1.75 million. During that month also there was an order from Gerard Walsh for two Lamborghini Diablos on behalf of Amanda Forshall. Timothy McSweeney said that he had never had any discussion on any commission to be paid to Gerard Walsh and that he certainly had not reached any agreement on the payment of such a commission. He assumed at all material times that Gerard Walsh was acting on behalf of Amanda Forshall. In relation to the payment of a £50,000 deposit on a car on behalf of Mr Ozaki, Timothy McSweeney says he was not aware that that deposit money had been paid to Gerard Walsh. In September there was an order for a further three Lamborghini Diablo cars on behalf of Mrs Forshall's Japanese clients. In early October 1990 Timothy McSweeney had several phone calls with Amanda Forshall as to the status of Gerard Walsh in relation to Lambo. Timothy McSweeney says that he told her who the directors and shareholders were and he wrote to her accordingly. In the phone conversations he had with her, Amanda Forshall was expressing the fact that she was afraid of losing her money and that she was afraid for the safety of her own children. She referred to the fact that she had paid a £50,000 deposit to Gerard Walsh, which as I have already indicated, Timothy McSweeney says he had not heard of until that point in time. Timothy McSweeney gave evidence that after Amanda Forshall returned from Nice in the South of France where she had seen and spoken with Mr Hoogenbrugghen, Timothy McSweeney spoke to her on the phone. She told him that a new agreement had been reached on the purchase of three extra cars. Accordingly a contract was to be drawn up for the purchase, by Amanda Forshall's company of nine cars in all. There was a discussion between Amanda Forshall and Timothy McSweeney as to the mode of payment on foot of the contract. Timothy McSweeney wanted a joint account opened in the Bank of Ireland in Bandon in the names of Timothy McSweeney and Amanda Forshall. And in fact he instructed his brother in the Bank of Ireland to open an account which was done but was never used. On the 4th November, 1990 Timothy McSweeney was speaking again to Amanda Forshall by telephone and telling her that Lambo would be taking action against Gerard Walsh to recover the monies that she had paid to him but he had not passed on to Lambo Motors. On the 6th November, 1990 there was a meeting at Amanda Forshall's apartment, Timothy McSweeney recalls that the time of the meeting was around lunch-time and he says that he rang during the course of this meeting Mr Hoogenbrugghen because he was not satisfied as to the numbers that had been provided in relation to the chassis of each of the cars which were to be sold on foot of the contract. Mr Hoogenbrugghen had said to Timothy McSweeney on some earlier date that if he ever gave the correct numbers his source could be identified, therefore Timothy McSweeney suspected the validity of the numbers that were being now provided for insertion into the contract. However, after Hoogenbrugghen had spoken to Amanda Forshall, he agreed to the inclusion of the numbers that had been provided by Mr Hoogenbrugghen. No cars were delivered on the first date for delivery being the 22nd November 1990, and on the 24th November, 1990 Timothy McSweeney said to Amanda Forshall that the company would refund all monies if she was unhappy. As detailed earlier in this Judgment, Mr Timothy McSweeney accompanied Mr Yamamoto and

76. Mrs Forshall to Frankfurt on the 21st December, 1990. Two days earlier, on the 19th December, 1990, Mr McSweeney had written to a Mr Luxor offering three Lamborghini Diablo cars at £97,000 each plus a premium of US$110,000. After Christmas on the 13th January, 1991 Mr McSweeney met Mrs Forshall at the Castle Hotel in Macroom by arrangement. Mrs Forshall said she had only £220,000 left according to Mr McSweeney. Timothy McSweeney says that he then spoke to Mr Hoogenbrugghen and between them they had worked out a solution. Mr McSweeney attended at the offices of Denis Murnaghan the Solicitors for Mrs Forshall on the 27th January, 1991 and, as he says himself, he was in effect thrown out of those offices on that day. Mr McSweeney told the Court that he himself was extremely anxious to try and complete the contract that Lambo had with Mrs Forshall. He says he raised £100,000 of his own monies for the purpose of completing the contract. He was aware that Mr Kraemer had nine cars available and he believed that if he could give him £10,000 for each of the nine cars he could hold the cars until the 28th February, 1991, which was what Mr Kraemer was prepared to do. Timothy McSweeny gave evidence of having given £70,000 to a Mr Mulley and £30,000 to a Mr Bennell for the purposes of those monies being brought to Mr Kraemer. Under cross-examination Mr Timothy McSweeney agreed with Counsel for the bank that he had told Michael McSweeney in February 1990 that there was a verbal commitment by Lamborghini to sell eight Diablos to Lambo. He said he could not recall saying on a date prior to August 1990 to Michael McSweeney that there was a mechanism in place that Lamborghini would give letters of comfort to Lambo. Under further cross-examination by Counsel for Mrs Forshall Mr McSweeney emphasised that he had never said to anyone that Lambo were concessionaires, sub-agents or otherwise. As to the chassis numbers provided in relation to the cars, Mr McSweeney had on the 9th October, 1990 on the 15th October, 1990 and on the 22nd October, 1990 furnished letters to Mrs Forshall detailing chassis numbers of cars to be purchased by her on behalf of her Japanese principals. When cross-examined as to an affidavit which he had sworn on the 11th February, 1991,

77. Mr McSweeney acknowledged that he was aware that for the purposes of protecting

78. Mr Hoogenbrugghen's sources incorrect chassis numbers had been inserted in the agreement of the 6th November, 1990. Mr McSweeney also acknowledged that if the purchase of the nine cars was to be made through Mr Kraemer, Lambo would have to pay £120,000 for each of the nine cars, whereas Mrs Forshall only had to pay to Lambo a sum of £87,000 for each of the nine cars leaving a shortfall of £297,000 to be made up.

79. There were two other witnesses who gave evidence on behalf of Timothy McSweeney. The first was Mr Daniel O'Callaghan, who worked during 1990 in O'Brien Cahill Accountants. He said he was asked by Timothy McSweeney to go to Germany to see certain motor cars. He said he went to Stuttgart where he met Mr Hoogenbrugghen and his wife, he said that he was subsequently taken from the airport to the garage where he saw three Lamborghinis. He was photographed beside the three Lamborghini cars at a garage which he believed to be the garage of Mr Kraemer. Finally, a Mr Patrick Mulley, gave evidence that he went to Frankfurt to in February 1991 with a package which had been given to him to give to Mr Hoogenbrugghen upon his arrival in Frankfurt. When he arrived in Frankfurt he gave Mr Hoogenbrugghen the package and he was taken to a warehouse at the airport where he was shown four Lamborghini motor cars, two red, one black and one yellow. He said he got some documentation from Mr Hoogenbrugghen which he returned to Mr McSweeney all on the same day.

80. Brendan O'Callaghan gave evidence of being the Manager of the Bank of Ireland branch at Bandon since 1984. He said that in November 1989 he first heard of Lambo Motors of Ireland Limited. The business of that company came into the branch through Michael McSweeney and his brother Timothy McSweeney. An account was opened in the name of a Mr Morrissey and Timothy McSweeney to receive a Mercantile Credit loan of £450,000 and a sum of £66,000 from a Mr Hoogenbrugghen. The bank opened a current account in the name of Lambo on the 23rd January, 1990 which account was operated until the 28th December, 1990 when it was closed. In addition to that current account there was also two bridging loan accounts in the name of Lambo. Mr O'Callaghan gave evidence of the various transactions on the Lambo current account. These transactions were as follows:

81. Ireland: from this sum the sum of IR £163,910.94 was lodged to the account of Lambo and the sum of IR£10,000 was lodged to the account of Gerard Walsh at Patrick Street in Cork.

82. On the 20th November, 1990 Mr O'Callaghan discovered that a Receiver had been appointed by Mercantile Credit over certain of the cars owned by Lambo on foot of a chattel mortgage and that the Receiver had been appointed since the 3rd September, 1990. Mr O'Callaghan was annoyed that he had not been informed of the appointment of the Receiver by Lambo and he was afraid that he was now presiding over the dissipation of the Receiver's funds. He immediately launched an inquiry and discovered that the Receiver was appointed on foot of a chattel mortgage and that the monies which had just come into the Lambo account (the £318,000) were not in fact monies of the Receiver. However, when

83. Mr O'Callaghan looked further into the matter he read a report which had been prepared by O'Brien Cahill the Accountants entitled "Statement of Affairs" as at 30th September, 1990 which, when he read it, he regarded it as "a work of fiction", insofar as it valued the property of the company, the factory premises at Macroom, at £600,000 which, on Mr O'Callaghan's own valuation, which had been obtained by the bank, was worth a sum of about £200,000. Mr O'Callaghan accordingly regarded this report as a work of fiction and he took the position that he would prefer to batten down the hatches and not to deal any further with Lambo. He duly told Michael McSweeney this and arranged for Michael McSweeney to meet with Timothy McSweeney and to convey this news to him. A check was made on the account and it was discovered that some £80,000 worth of items had been debited to the account. It was then arranged that Mary O'Brien Daly would put a stop on the cheque for £318,000 and thereafter a sum of £80,000 would be paid into the Lambo account by Mary O'Brien Daly to meet the items of debit on the account. It is clear from Mr O'Callaghan's evidence that at the time he took this unusual decision there were a number of matters which were causing him some concern. The first was the statement of affairs of Lambo which he described as a 'work of fiction', the second was the fact that the bank's security in the form of a legal charge over the factory premises at Macroom had not yet been perfected and the third was the fact that there were a number of items in the 'pipeline' such that the account was in debit in the sum of £80,000 at the time the cheque was received for £318,000. Finally, it should be noted that at the time Mr O'Callaghan decided to "batten down the hatches", as he described it, he was aware that the £318,000 that had been lodged to the credit of the account by Mary O'Brien Daly represented payments by Mrs Forshall in respect of Lamborghini Diablo cars to be purchased by Lambo Motors of Ireland Limited. On the 31st November, 1990 the bank's legal charge had been put in place.

84. Mr O'Callaghan attended the meeting at Ballymaloe on the 29th May 1990 in the company of Mr Michael McSweeney and Mr Lloyd Hutchinson. When the party, including Mrs Forshall and Mr Kitaoki and Mr Walsh arrived, Mr O'Callaghan does not have any particular recollection as to how the parties were introduced to one another or whether Mrs Forshall went to freshen up as soon as she arrived. Nor does he have any particular recollection of whether he had a business card, or whether he distributed his business card, if he had it with him on that occasion, to the people he was meeting. He does say that no-one asked him during the course of the meeting about Gerard Walsh's standing at the bank. He is satisfied that he never said Lambo were concessionaires of Lamborghini - indeed he believes that there was no discussion about Lamborghini cars during the course of the meeting and that he does not recall Lambo being mentioned at all during the meeting. He does recall on the way home from Ballymaloe House, Michael McSweeney produced to him a cheque from Amanda Forshall to lodge to the Lambo account at the Bandon branch of which he was the manager.

85. Mr O'Callaghan identified a reference which had been issued by the Bank of Ireland it was issued on Bank of Ireland notepaper addressed "to whom it may concern re: William Hoogenbrugghen, Inchigeela, County Cork," and it stated as follows:

86. The reference was signed for and on behalf of the Bank of Ireland by Michael McSweeney.

87. This is the reference which Mrs Forshall and Mr Kitaoki identified as having seen at the Marriott Hotel in London in June, 1990. Mr O'Callaghan said he did not become aware of this reference until he saw it among the documents discovered during the currency of the case. He said it was not "an appropriate document" to issue. It was unusual both as to its form, the absence of a date, and to the manner of its issue. Indeed the bank in the course of the case indicated that, and I quote "we do not stand over this document as a document that should be issued by the bank".

88. All credit applications from the Bandon branch of the Bank of Ireland in excess of a certain figure are submitted to the credit department area south of the Bank of Ireland. Such an application was submitted on the 21st February, 1990. That application was in respect of Lambo Motors of Ireland Limited and in the course of the application it is noted by way of background information:-

89. In a further memorandum of the 24th August, 1990, Mr McSweeney and Mr O'Callaghan writing to the credit department area south of the Bank of Ireland stated as follows:-

90. After Mr O'Callaghan - as he said it himself - decided to 'batten down the hatches' in relation to Lambo's account with the Bank of Ireland in Bandon, there was in effect only one payment out of the account and that was a sum of £5,000 to Timothy McSweeney in December of 1990. On the 3rd April, 1992, acting on foot of its legal charge, the Bank of Ireland obtained £100,000 for the factory premises at Macroom, County Cork. On the 6th April, 1992, the Lambo account at the Bank of Ireland, Bandon was closed. After a Mareva Injunction had been granted by Order of Mr Justice Costello dated the 31st January 1991, Brendan O'Callaghan informed Timothy McSweeney that he was taking his brother Michael McSweeney off the Lambo account and that henceforth Mr O'Callaghan himself would deal with anything arising upon the account.

91. Mr Lloyd Hutchinson gave evidence that he was the manager of the international banking division, area south, of the Bank of Ireland in 1994. He attended the lunch meeting in Ballymaloe on 29th May, 1990, he did not have any clear recollection as to the introductions which took place between the Bank of Ireland personnel and Mrs Forshall, Mr Kitaoki and Mr Walsh. He says that he 'presumes' he was introduced as the manager of international banking in Cork. He says he gave his card to Amanda Forshall and to one of the Japanese. When asked whether he heard anybody being introduced, he said and I quote "I didn't, no." He added "There were introductions going on but I didn't actually hear names being mentioned or anything like that". He says that if Lambo Motors of Ireland were referred to during the meeting as Lamborghini concessionaires he, Mr Hutchinson, did not hear that. He believes that if Brendan O'Callaghan had said such a thing, he would have heard it because he was within earshot of Brendan O'Callaghan at all times. Mr Hutchinson does not recall it being said that Mr Gerard Walsh was a long-standing customer of the Bank of Ireland and was of good status. Nor does he recall it being announced that Mr Gerard Kean and a "high level" person from the Bank of Ireland was not able to make the meeting because of a helicopter delay. Mr Hutchinson believes that during the course of the meal he was sitting on one side of Mrs Forshall and that Mr O'Callaghan was sitting on the other side of Mrs Forshall.

92. Mr Michael McSweeney is an officer of the Bank of Ireland. The position of officer is a position between that of Senior Bank Official and the higher position of Assistant Manager of a branch. In 1989 and 1990 Mr McSweeney occupied such a position in the Bank of Ireland branch at Bandon. Mr McSweeney gave evidence of the fact that in November 1989 he had been the officer of the bank responsible for opening a joint account in the name of Mr William Hoogenbrugghen and his wife. The account was a savings account.

93. Mr Hoogenbrugghen had said to Mr Michael McSweeney that he, William Hoogenbrugghen and Timothy McSweeney (the brother of Michael McSweeney) intended to become involved in importing Lamborghini cars. A bank memorandum of the 28th November, 1989 records a conversation between Michael McSweeney and Timothy McSweeney. It records the fact that Timothy McSweeney intended setting up a company with a view to getting an exclusive Lamborghini franchise in Ireland; that the directors of the company would be Timothy McSweeney, Mr Hoogenbrugghen and a Mr David Morrissey and that the company intended to borrow £450,000 from Mercantile Credit. The memorandum notes that Michael McSweeney was told by Mr Hoogenbrugghen that he was purchasing three Lamborghini cars from an inside source in Lamborghini. Michael McSweeney opened the account for Lambo Motors of Ireland and £450,000 from Mercantile Credit and some £65,000 from

94. Mr Hoogenbrugghen was lodged into the account. £515,000 was transferred to Germany to buy cars. Mr Hoogenbrugghen told Michael McSweeny that he had a source who would make available Lamborghini cars. Michael McSweeney believed that the three Lamborghinis were purchased in this way from that particular source. Michael McSweeney said that in January 1990 his brother Timothy McSweeney instructed him that any overdraft on

95. Mr Hoogenbrugghen's account would be looked after from the Lambo account. Timothy McSweeney asked his brother Michael for a bank reference for Mr Hoogenbrugghen to ensure that cheques would be honoured in a hotel in France in which Mr Hoogenbrugghen was staying. Mr Michael McSweeney gave that reference to Timothy McSweeney for use by Mr Hoogenbrugghen. He says that he himself never prepared or gave any reference in relation to the three directors of Lambo Motors of Ireland Limited. It is worth noting that a reference relating to the Lambo directors was adverted to by Mrs Forshall as being one of the documents that was produced to her and Mr Kitaoki in the Marriott Hotel in June of 1990. Mr Michael McSweeney recalls a conversation he had with Mr Hoogenbrugghen in February 1990 when Mr Hoogenbrugghen told him that he had obtained agreement to purchase eight Diablos during 1990. Mr Michael McSweeney confirmed that he wrote the credit application of the 21st February, 1990 to which I have already referred. That credit application notes, among other things, that Mr Gerard Walsh "has put £50,000 into the company and a commitment to put another £50,000 within one month" ; further, the memorandum or credit application, as already stated, notes that the company "continues to maintain close contact with Lamborghini and have had a verbal commitment that they will be able to buy, at cost price, eight Diablos in the course of the next twelve months" . Mr Michael McSweeney also acknowledged writing a memorandum for the bank's credit department dated the 7th March, 1990, in which he again noted the names of those persons who are fully paid up shareholders, they were: William Naessens, William Hoogenbrugghen, David Morrissey and Gerard Walsh. The memorandum notes, and I quote, "for the moment the Managing Director and Financial Controller will remain in the hands of Mr Timothy McSweeney, Accountant, Macroom and all dealings that the bank has with the company will for the moment continue through him" . As to the company's objective of obtaining the exclusive Lamborghini franchise, that particular memorandum notes as follows:

96. Mr Michael McSweeney was at the luncheon meeting at Ballymaloe House on the 29th May, 1990. He recalls Mr Walsh making the introduction to the visitors, that he introduced the bank personnel present, Mr O'Callaghan, Mr Hutchinson and himself to the visitors, namely Mrs Forshall and the Japanese, namely Mr Seki and Mr Kitaoki. He says he is certain that Mr O'Callaghan and Mr Hutchinson gave their business cards at the time they were introduced. He says he is certain they both gave their business cards to Mrs Forshall. Mr Michael McSweeney says that he did not introduce himself, and was not introduced, as a Manager at the meeting. He does not state however, how in fact he was introduced. When asked whether there was discussion at the meeting, so far as he could recall, of Lambo Motors of Ireland Limited or Lamborghini Motor Cars, Mr Michael McSweeney replied "absolutely none". Mr McSweeney gave evidence that it was with a Mr Gerard Collins that he had the most conversation with during the course of the meeting, but that he did not hear everything that was being said by other people during the course of the meeting. Before he left the meeting to return to Bandon, Gerard Walsh gave him a cheque for £42,500 and either then or on the following morning confirmed to him that it was a deposit in respect of a Lamborghini motor car. On the 11th June, 1990 that cheque was returned with orders not to pay. A new cheque thereupon issued which was honoured. Mr Michael McSweeney denies that he made any phone calls to Amanda Forshall prior to the meeting at Ballymaloe on the 29th May 1990. He recalls making two or three phone calls to Mrs Forshall prior to the 12th June 1990 and two or three phone calls to her after the 12th June 1990. The first call he made to her was of a general nature referring to the quality of the food at Ballymaloe and the problems in Northern Ireland. The second call was specifically in relation to the proposed Kinsale golf course development. Mrs Forshall agreed that she would contact Mr McSweeney if and when the development was taking place. As an aside it is worth noting that at this point in time, the Bank of Ireland in Bandon had lent substantial monies amounting in all to £1.25 million to Mr Walsh in relation to the self-same development at Kinsale. Mr McSweeney recalls a further phone conversation in either October or November 1990, when Mrs Forshall phoned him to complain at the manner in which she was being treated by Gerard Walsh whom, she said, had threatened both her and her children with the I.R.A. Mr McSweeney does not recall Mrs Forshall asking her during that phone conversation about Gerard Walsh's ownership or alleged ownership of Lambo.

97. Mr McSweeney gave evidence that he had prepared a memorandum dated the 12th June, 1990 for the bank in which he recited that Lambo had an agreement with Lamborghini of Italy for eight Diablos and that at that point in time he, Mr McSweeney, believed two of the Diablos had been sold and the proceeds had been received by Lambo.

98. Mr McSweeney said that his understanding at that point in time was that each of the purchasers would receive some kind of letter of comfort that would ensure that they knew they were getting a car as such, and he believes that the person who gave him that understanding was his brother Timothy McSweeney. Mr McSweeney said he wrote a further memo on the 24th August, 1990 to which Mr O'Callaghan has already referred to. In that memorandum he notes that Mr Bignall was to send US$300,000 to the Lambo account. Mr McSweeney knew that that sum was the proceeds of the sale of three further Diablos. He said that Timothy McSweeney had explained to him, Michael McSweeney, that Lamborghini would give letters of comfort to the purchasers of each of the Diablo cars. He said that Timothy McSweeney said that six of the Diablos were sold and there were only two more to go.

99. Although Peter Barnett and Andrew Gunther gave evidence of having had phone conversations with Michael McSweeney, Michael McSweeney said he had absolutely no recollection of any phone conversations with either of these two persons. On the

100. Under cross-examination, Mr Michael McSweeney said that the reference for Mr Hoogenbrugghen was not kept on the bank's files. He acknowledged that, in the memorandum of the bank dated the 12th June 1990, which he had written, it records that Timothy McSweeney told him, Michael McSweeney, that Lambo had a contract with Lamborghini for the purchase of eight cars. In relation to the closure of the account of Lambo with the Bank of Ireland in Bandon, he says that he did not tell Amanda Forshall that the company account was effectively closed as and from the 20th November, 1990. Indeed, he added, in relation to the events which had occurred at that time, that he was not sure if he was then aware that the £318,000 which had been transferred into the account were monies which had come from Amanda Forshall.

101. Mary O'Brien Daly gave evidence that she was a Solicitor who qualified in 1979 and had acted as Solicitor to Lambo since 1989. She said she was consulted in relation to the purchase of the Macroom premises for Lambo. In November, 1989 she said that Timothy McSweeney asked her to be available to take a call in respect of an undertaking that was being given to Lambo. She says that about 7.30pm Timothy McSweeney phone her at her home and said that an agreement had been prepared and signed. The terms of the agreement were outlined to her. She was then put on to a Mr Bignall who read out over the telephone an undertaking which he had drafted. She had no further calls that evening. On the 23rd November, 1989 she says that she got instructions from Timothy McSweeney to pay a sum of money to Mr Andrew Gunther; she says that she was instructed by Timothy McSweeney to stop the cheque for £318,000 and then to apply the monies, the proceeds of that cheque, in various ways.

102. Mrs Marie McSweeney, the wife of Michael McSweeney, gave evidence of having heard her husband on the 28th January, 1991 say to Amanda Forshall on the phone to consult a Solicitor.

103. Mr King and Mr Barnett. I also accept that the evidence given by Mr Lloyd Hutchinson and Mr Brendan O'Callaghan of Bank of Ireland is a truthful but not necessarily an accurate account of their role in these events.

104. Mr. Lloyd Hutchinson, Michael McSweeney, Brendan O'Callaghan and Gerard Walsh deny that any discussion took place about cars at that meeting. The table at which they were sitting was a large one. Michael McSweeney, during the course of the meeting was speaking primarily to Gerard Collins. Gerard Kean, a Solicitor, was due to attend but due to adverse weather conditions did not attend: this, says Amanda Forshall was announced by Michael McSweeney at the meeting. Michael McSweeny denies making any such announcement at the meeting.

105. The bank submits that Michael McSweeney would hardly have brought his Manager to the meeting if he had himself been busy passing himself off to Amanda Forshall as the Manager of the Bandon branch of the Bank of Ireland. They suggest that Brendan O'Callaghan was introduced as the Manager and that Michael McSweeney was not. Wherever the introductions took place I am not satisfied that Brendan O'Callaghan was introduced to Amanda Forshall as the Manager of the Bandon branch of the Bank of Ireland or that Michael McSweeney was introduced by his title of Officer of Bank of Ireland (being a position above Senior Bank Officer and under that of an Assistant Manager). Equally, I am not satisfied that Michael McSweeney in the four phone calls that he made to Amanda Forshall prior to the meeting in Ballymaloe with Amanda Forshall introduced himself as Manager with the intention of deceit but rather as a convenient (but inaccurate) description of his status in the branch. I do not think that by representing himself as such he intended to induce any contract and I am satisfied that it could not be construed as an operative misrepresentation. I shall return to this aspect of matters later. I am satisfied that Lambo and Lamborghini cars were discussed at the Ballymaloe meeting. Prior to the meeting Mrs Forshall had four conversations with Michael McSweeney; she had had one conversation with Timothy McSweeney; she had paid £20,000 to Mr Dunhill. She had met with

106. Mr Walsh three times (two times at the Marriott Hotel in London) and she had paid Gerard Walsh a cheque for £42,500 on the 23rd May, 1990. This cheque was given by Michael McSweeney by Gerard Walsh at the end of the Ballymaloe meeting. Against this background it is highly improbable that no discussion took place during this lengthy meeting in relation to the Lamborghini cars. Given the fact that there were five persons present who had an interest in the Lamborghini car venture and given the fact that already the bank itself had taken on Lambo Motors of Ireland as a customer and had detailed notes in relation to a potential agency from Lamborghini, it is unlikely that there was no discussion as to the car venture. While Mr O'Callaghan says that he did not, during the course of the meeting, have any discussion with

107. Mrs Forshall or Mr Kitaoki in relation to Lamborghini cars, Gerard Walsh or Lambo, I believe his recollection and the recollection of the other bank witnesses is inaccurate and that there was a discussion about the Lamborghini Diablo cars, Gerard Walsh and Lambo Motors of the kind and nature recalled by Mrs. Forshall and Mr. Kitoaki.

108. Mr Hoogenbrugghen and secondly to the company Lambo Motors of Ireland Limited and its directors which were produced at the meeting at the Marriot Hotel by Gerard Walsh on 7th June 1990. It will be recalled that the reference for Mr Hoogenbrugghen was issued by Michael McSweeney and it was not kept on the bank files. It was undated and unlimited in time.

109. Mr Hoogenbrugghen and by Timothy McSweeney in some detail about the possibility of a Lamborghini agency. He clearly believed what he was being told. The credit application notes and memoranda of the bank are a testament to what Michael McSweeney was being told by both Mr Hoogenbrugghen and Timothy McSweeney. The memorandum of the 29th January 1990 notes:

110. The memorandum of the 29th February 1990 notes

111. The memorandum of the 24th August, 1990 notes:

112. These pieces of information gathered in the Bank of Ireland files also lend substance to Amanda Forshall's allegation (and those of Mr Kitaoki,

113. Mr Gunther and Mr Barnett) that Michael McSweeney said that Lambo were concessionaires of Lamborghini. They also reduce the credibility of Michael McSweeney's suggestion that he made no such representation to her or to

114. Mr Kitaoki or Mr Gunther or Mr Barnett that Lambo were concessionaires of Lamborghini in Italy and could produce cars for her.

115. I will return to the question of whether in the circumstances which I have outlined above the bank owed a duty of care to Amanda Forshall to appraise her of the developments in relation to the bank account and its relationship with Lambo Motors of Ireland Limited.

116. Mr Kitaoki through the statement of affairs dated the 30th April, 1990 in some detail. As a result of this meeting, Mrs Forshall and Mr Kitaoki were fortified as to the financial stability of Lambo Motors of Ireland.

117. Mr Sgarzi and Mr Hoogenbrugghen to buy the cars say through an agency".

118. IR£1.875 million "commissions receivable" from Mr Hoogenbrugghen. I am satisfied that there was no reality to either of these figures and that Timothy McSweeney was aware of this. Once these figures were excluded from the statement of affairs of Lambo Motors the precarious financial state of Lambo would have been obvious to Mrs Forshall and to Mr Kitaoki. The statement of affairs was prepared by Timothy McSweeney who said that he believed that the £1.875 million "commissions receivable" would be a gift from

119. Mr Hoogenbrugghen to the company. I do not accept that Mr McSweeney genuinely believed that this money would be received by Lambo Motors of Ireland Limited, nor do I accept that Timothy McSweeney believed the statement of affairs presented a true and fair view of the financial state of Lambo.

120. Mr Hoogenbrugghen had the funds to pay back Mrs Forshall. I cannot accept that Mr Timothy McSweeney genuinely believed this to be the position. From early October, 1990 Mr McSweeney was aware that he was being furnished with false chassis numbers by Mr Hoogenbrugghen; despite this, he dutifully sent them on to Mrs Forshall under cover of letters of the 9th, 15th and 22nd October, 1990 and allowed their insertion into the agreement of the 6th November, 1990. The explanation that Mr Hoogenbrugghen did not want to reveal his sources does not excuse the lie. By October 1990 Timothy McSweeney was certainly aware that Gerard Walsh had siphoned off monies due to Lambo; he was also aware of the Receivership of Mercantile Credit. By the 20th November he was made aware of Bank of Ireland's unwillingness to deal with Lambo. Despite all these setbacks there was no evidence of any recourse to Mr Hoogenbrugghen and there was no evidence of any funds coming from Mr Hoogenbrugghen to right the sinking ship. Despite all of these body blows to Lambo, on the 24th November he wrote to Mrs Forshall indicating that the cars would be delivered the following week, but that if she was worried his company would refund her monies in full. On the

121. Mrs Forshall. I am satisfied that Mr McSweeney well knew - probably as early as October 1990 - that Lambo would be unable to meet its contractual obligations to the Plaintiffs. I am satisfied that he wrote the letters specifying the bogus chassis numbers with a view to persuading Amanda Forshall to enter into the compromise agreement to purchase the nine cars, which was in fact concluded on the 6th November, 1990

122. Michael McSweeney represented that Lambo was a well respected customer of Bank of Ireland in phone calls to Amanda Forshall in early May, 1990; he made a similar representation to her in late May, 1990. On 7th June, 1990, Gerard Walsh pursued the statement of affairs of Lambo as at the 30th April, 1990 with Mr. Kitoaki. The effect of

123. Mr. Walsh going through the statement of affairs with Mr. Kitoaki was to reassure

124. Mr. Kitoaki as to the financial health of Lambo. The statement of affairs had been prepared by Timothy McSweeney, and Gerard Walsh had got these documents, including the statement of affairs from Timothy McSweeney or Mr. Hoogenbrugghen (he cannot specifically recall from whom). The statement of affairs prepared as at the 30th April, 1990, if one excludes excess valuation of the premises (purchase for £220,000) but with a "valuation" therein of £600,000, and the "commissions receivable" (by way of a gift from Mr. Hoogenbrugghen) the picture disclosed is one of a net deficiency of £550,000 in the company. I am satisfied as I have already said that there was never any reality to the commissions receivable by the company of £1.875 million from Mr. Hoogenbrugghen or to the valuation of £600,000 for the factory premises; I am also satisfied that Timothy McSweeney was, as the author of the statement of affairs, aware of this unreality. While I believe Timothy McSweeney and Lambo were aware of the parlous nature of Lambo's finances, I do not believe, as at June, 1990, Michael McSweeney or the Bank of Ireland or indeed Gerard Walsh was necessarily so aware. As events unfolded over the summer of 1990, Timothy McSweeney prepared a further statement of affairs as at the 30th September, 1990 for Lambo. In the words of Brendan O'Callaghan this was "a work of fiction" equal to that of the 30th April, 1990. Again the land and buildings were "valued" at £600,000 even though they had been purchased for £230,000; stock was valued at £1.55 million, while Brendan O'Callaghan assessed its value at £750,000. The commissions receivable appeared to have disappeared at this point in time. If one takes just the premises valuation and the stock figures and adjust them in the way Mr. O'Callaghan did, there is produced a net deficiency of over £200,000 in the assets of the company and this in fact ignores other questionable values attributed to the figures in the statement of affairs for 30th September, 1990.

125. As at November, 1989 Mr. Hoogenbrugghen and Timothy McSweeney were aware from Mr. Sgarzi that their area (Ireland) had been assigned to another concessionaire and, as Mr. Sgarzi said "nothing can be done at present". There is no evidence that Mr. Hoogenbrugghen believed that he had such an agency or sub agency for 1990; in relation to Timothy McSweeney there is the evidence that he told Michael McSweeney in February, 1990 that there was a verbal commitment by Lamborghini to sell to Lambo, eight cars during 1990; yet, at the same time, he was asserting in the "strategy for Lambo Motors Limited for the coming months" (produced by Gerard Walsh on the 7th June, 1990) that there was the following 'disclaimer':

126. Firstly, I should say I do not accept that the so called "disclaimer" did appear in the strategy document as Timothy McSweeney suggested. It is worthwhile observing, that both it and what Timothy McSweeney said to his brother Michael McSweeney in February, 1990 do not sit easily with one another. There is no evidence which supports an agreement - either formal or informal - between Lamborghini (or Mr. Sgarzi) and Lambo Motors of Ireland (or Mr. Hoogenbrugghen) for the supply of eight Lamborghini Diablo cars in 1990. While I accept that on the 7th June, 1990 Mrs. Forshall and Mr. Kitoaki believed they saw a letter from Lamborghini identifying Lambo as its concessionaire for Ireland and signed by Mr. Sgarzi, Timothy McSweeney denies the existence of such a letter and such correspondence as has emerged from Mr. Sgarzi suggests that if such a letter was produced it was not authentic. I am satisfied that when Timothy McSweeney spoke to Mrs. Forshall on the phone in early May, 1990 and told her Lambo were concessionaires of Lamborghini, he knew this to be untrue given his suggestion that the so called 'disclaimer' was part of the strategy document referred to already. I have a doubt as to whether Gerard Walsh was aware Lambo were not in fact concessionaires of Lambo again when he spoke to Amanda Forshall in May 1990 or whether he simply repeated what had been told to him by

127. Mr. Hoogenbrugghen or Timothy McSweeney. I am satisfied that Michael McSweeney was himself simply repeating that which was being told to him by both Timothy McSweeney and Mr. Hoogenbrugghen as to the concessionaireship and the agency.

128. Timothy McSweeney claims that all the shares in Lambo were held beneficially for Hoogenbrugghen - whether this be true or not, it is common case that Gerard Walsh did not hold any shares in Lambo either for himself or in trust for anyone else. It is also common case that no shares in Lambo were owned by a "family trust" associated with Gerard Walsh.

129. Where fraudulent misrepresentation is alleged it must be established that the representation (as defined above) was intended to and did induce the agreement in respect of which the claim for damages arises.

130. He observed in relation to decided cases in which a duty of care in respect of negligent misstatement had been held to exist, that the limit on the liability of a wrongdoer towards those who had suffered economic damage,

131. There was clearly a most exceptional relationship between Michael McSweeney and Amanda Forshall. It started with the fact that she was doing business with a customer of the bank. It was compounded by the fact that the Managing Director of the customer of the bank was a brother of Michael McSweeney. That the relationship was exceptional is illustrated, first by the number of unsolicited phone calls made by Michael McSweeney to Amanda Forshall and, that, when in trouble, Mrs. Forshall phoned Michael McSweeney, not just at his office, but at his home, using a number which he himself had given to her.

132. Whether one adopts the test propounded by McCarthy J. in Ward -v- McMaster , supra, or the test of Lord Bridge in Caparo, supra, all the necessary ingredients which might give rise to a duty of care exist in relation to the bank and Mrs. Forshall: there was a relationship which can undoubtedly be characterized as one of "proximity" or neighbourhood", a relationship of such a nature that the bank, in the person of Michael McSweeney, was aware that statements he might make would most likely be relied upon by Mrs Forshall and that carelessness in making such statements might cause her damage. There can be no doubt in my mind that in such circumstances it is fair just and reasonable that the law should impose a duty of care on the bank in relation to the representations it made to Mrs Forshall.

133. During the course of their various calls and meetings. Michael McSweeney represented to Mrs. Forshall (as I have found) that:-

134. Mrs. Forshall has said (and I accept her evidence) that she would not have advanced monies to Lambo or to Gerard Walsh if she was aware that Lambo was not a concessionaire of Lamborghini or was not financially sound.

135. I am satisfied that Michael McSweeney, in representing that Lambo were concessionaires of Lamborghini, knew that the Plaintiff would be very likely to rely upon the representation that he was making to that effect for the purposes of deciding whether or not to make monies available to purchase the Lamborghini Diablos. I am satisfied therefore that Michael McSweeney owed to Mrs. Forshall a duty of care to ensure the accuracy of the representation he was making to her. I am satisfied that Michael McSweeney failed in the exercise of that duty of care which he owed to Mrs. Forshall.

136. While I do not believe that Michael McSweeney was guilty of telling conscious untruths to Mrs. Forshall, I believe that he failed to exercise due care in what he did represent to her as true as to the agency or concessionaireship of Lambo and thereby induced her to proceed to pass monies to Lambo which she would not otherwise have done.

137. He is accordingly liable for damages for negligent misrepresentation and negligent misstatement and the bank is vicariously liable for his negligent misrepresentation and misstatement.

138. Mrs. Forshall says that she would not have proceeded to give monies to Gerard Walsh if he was not in fact the owner of Lambo. He clearly wrongly represented himself as such on several occasions with a view to inducing her to pay monies to him in pursuance of her agreement to purchase Lamborghini Diablo cars. To that extent he is guilty of fraudulent misrepresentation as there can be no basis for the representation other than that he knew it was an untruth.

139. Timothy McSweeney clearly represented to Mrs. Forshall that Lambo were concessionaires of Lamborghini in May 1990 at a time when I believe he could not have held such a belief. He also prepared at that time a statement of affairs dated 30th April, 1990 which I am satisfied he was aware would be shown to persons interested in dealing with Lambo such as Mrs. Forshall. That statement of affairs represented Lambo as a healthy company in financial terms which it clearly was not. Mrs. Forshall has given evidence that she would not have invested her money in the purchase of Lamborghini Diablo cars if she believed Lambo was not the concessionaire of Lamborghini or not a financially sound company. I accept her evidence. I conclude that the representations of Timothy McSweeney were made with a view to inducing Mrs. Forshall to enter into the agreement for the purchase of the Lamborghini Diablo cars and that the representations were fraudulent representations for which he is liable in damages to Mrs. Forshall and the second named Plaintiff. The Statute of Frauds Amendment Act, 1828 (known as Lord Tenterden's Act) provides, in Section 6, that a representation relating to the

140. I have already indicated that, of all the representations that are alleged to have been made in this case, Mrs. Forshall was induced to part with her money and enter the successive agreements to purchase the Lamborghini Diablo cars by three major representations. These were:-

141. Timothy McSweeney and Michael McSweeney made the first of these representations: the former made it fraudulently, the latter made it negligently. Timothy McSweeney made the second representation fraudulently and Gerard Walsh made the third representation fraudulently. There were other ancillary representations which, while made, do not concern me either in a determination of liability or in measuring damages

142. Mrs. Forshall did not learn of the falsity of the first two representations (that Lambo was a financially sound concessionaire of Lamborghini) until after she had paid all of the sum of £677,000 Sterling to the Defendants. She only learnt of the falsity of the third representation (that Walsh was the owner of Lambo) on 3rd October, 1990: at this stage she had paid some £377,000 Sterling to the Defendants. Her only hope, as she discovered at that stage, of rescuing the deal was to agree to a compromise whereby, instead of purchasing 6 cars she would purchase 9 cars, paying an additional £100,000 Sterling premium for the extra 3 cars. This was the agreement her company entered on 6th November, 1990 and on foot of which £300,000 Sterling was paid into Mary O'Brien Daly's client account on 16th November, 1990. Insofar as the representation of Mr. Walsh is concerned I am satisfied that the damage which resulted from the fraudulent representation included not just the £377,000 Sterling paid prior to October 1990 but also the £300,000 Sterling paid in November 1990.

143. The measure of damage for the tort of deceit or fraud was described thus by Henchy J. in Northern Bank Finance -v- Charlton 1979 IR 149 and page 199,

144. I respectfully adopt the above statement as the appropriate measure of damages in this case in relation to the fraudulent misrepresentation and deceit claims. In relation to the negligent misrepresentation and misstatement of Michael McSweeney (and Bank of Ireland), I believe that the test propounded by Henchy J. in Northern Bank Finance -v- Charlton is an appropriate guide to the measure of damage for negligent misrepresentation and misstatement - namely the actual damage flowing from the negligent misrepresentation or misstatement together, if appropriate, with consequential damages representing what was reasonably and necessarily expended as a result of acting on the misrepresentation or misstatement.

145. Treating the test proposed by Henchy J. supra, as the correct measure of damages for the fraudulent misrepresentations, negligent misrepresentations and negligent misstatements. I hold that the Plaintiff's are entitled to a decree of:-