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Cite as: [2013] IESC 17
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Judgment Title: McCaughey v Irish Bank Resolution Corp Ltd & anor Neutral Citation: [2013] IESC 17 Supreme Court Record Number: 493/11 High Court Record Number: 2009 9042 P & 2009 347 COM Date of Delivery: 13/03/2013 Court: Supreme Court Composition of Court: Hardiman J., O'Donnell J., Clarke J. Judgment by: Hardiman J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT Hardiman J. 493/2011 O’Donnell J. Clarke J. Between/ GERARD McCAUGHEY Plaintiff/Appellant and Defendants/RespondentsIRISH BANK RESOLUTION CORPORATION LIMITED and MAINLAND VENTURES CORPORATION JUDGMENT of Mr. Justice Hardiman delivered the 13th day of March, 2013, This is the appeal of the plaintiff from the judgment of the High Court (Mr. Justice Birmingham) delivered the 27th day of July 2011 and from the associated order dated the 9th day of December, 2011 whereby the plaintiff’s claims against the defendant were dismissed. The parties. The plaintiff, Mr. McCaughey, is a successful Irish businessman and formerly the moving spirit behind Century Homes, which he sold in 2005. The first-defendant is the statutory successor to Anglo-Irish Bank Corporation Limited, a bank which has become notorious. The second-named defendant is a Delaware Corporation with limited liability which was incorporated by the Bank as a vehicle for participation in a property fund known as the Anglo-Irish New York Hotel Fund. The plaintiff, in or about September 2006, accepted an invitation to participate in the Fund when this was proposed to him by the Bank. He agreed to invest the sum of US$1m and, apparently also at the suggestion of the Bank, agreed to borrow US$620,000 of this from the Bank. The plaintiff had been a customer of the Bank and of its “Private Banking” arm. He was not alone in being solicited to invest in the Fund mentioned above: about forty-nine other people, customers of the Bank and of its Private Banking arm, also invested in response to such solicitations. The plaintiff’s action has been described as a “pathfinder” for twenty-two other sets of proceedings. Background to the investment. Although the investment was made via a complicated corporate and partnership structure, devised by the Bank, the underlying proposition was quite simple. At the time the investors were solicited (September, 2006) the Bank, had itself agreed to purchase two long established hotels in the City of New York, being the Beekman Tower Hotel and the Eastgate Tower Hotel. Well before it solicited any investment from other parties the Bank, in or about May 2006, had agreed to purchase these hotels for over US$150m and was contractually bound to do so. If it failed to do so it was liable to forfeit a deposit in an amount exceeding US$11m and would presumably have been subject to proceedings in the nature of specific performance at the option of the vendors. The background to how the Bank became involved in this transaction is set out in the very detailed judgment of the learned trial judge, but is not immediately relevant to the issues raised on this appeal. The purchase of the two hotels on foot of the Bank’s contract was closed in or about the month of October 2006. The plaintiffs and the other investors were solicited by the Bank to invest in the course of the preceding month, September 2006. It appears from the evidence that the Bank had decided to solicit investors from amongst its “best customers” - persons known to it to have a net worth of at least €5m and/or incomes exceeding €500,000. It may be inferred that such persons were not likely to be innocents abroad, or persons under any kind of disadvantage: certainly the plaintiff was not in either of those categories. For reasons not fully explained, the fact that at the time of solicitation the Bank was itself contractually bound to buy the hotels, and would have to do so out of its own resources if it could not find third party funds, was not explained to the plaintiff or, it appears, to any of the investors. Many would consider this a relevant factor in assessing what the Bank had to say about the project. There were elaborate plans for the two hotels, which were well established but aging structures. These plans involved not merely the purchase of the hotels but the refurbishment of them at a price calculated on the basis of so much per “key”, a term used in the American hotel industry to mean room. The plans have not proceeded as was intended and the investors have lost their entire investment, though the Bank retains a substantial asset. The learned trial judge found, and it appears to be the case, that “the project has not proceeded as intended, principally because the cost of the planned renovation was far greater than had been contemplated originally”. The learned trial judge also found, what is undoubtedly true, that “the plaintiff is deeply aggrieved by what has transpired as are a number of other investors, and is firmly of the belief that he has been seriously ill served by the Bank”. This sense of bitter grievance arises from what he and others had thought their relationship with the Bank to be. Motion to admit additional evidence. On the hearing of this appeal the Court had before it a Notice of Motion dated the 17th October, 2012 supported by three affidavits sworn between the 16th October, 2012 and 19th January, 2013. This motion was to admit additional evidence regarding a memorandum dated the 17th August, 2012 from a New York City Assistant Commissioner to the Borough Commissioner of Manhattan to a letter from the same person dated on the same day. These documents relate to matters coming into being some years after the principal document whose rescission is sought in these proceedings. The views of the author of the 2012 document, insofar as admissible, could have been adduced before the High Court. The proposed additional evidence does not appear to bear on any issue properly before the Court on this appeal. Private Banking. It may be desirable at this stage to discuss the term “Private Banking”. At the trial in the High Court it was the subject of considerable cross-examination by Mr. Martin Hayden S.C., counsel for the plaintiff/appellant, of Mr. Paul Brophy who was a director and executive (Vice-President/Head of New York lending) at Anglo in New York. Mr. Brophy agreed that the hotel Fund was being sold “to forty or fifty of Anglo’s best customers”. Asked what the concept behind Private Banking was, he answered that it was:
It was next put to Mr. Brophy that Anglo had sold the investment to its customers on the basis that “we will look after your interests”. Mr. Brophy replied to this:
The proceedings. The plaintiff issued proceedings on the 7th October, 2009 and delivered a Statement of Claim on the 4th November, 2009 which has subsequently gone through a number of amended forms. The principal relief claimed is a rescission of what was referred to as “the Commitment Agreement”. This is a document entered into between the plaintiff and the Bank on 27th September 2006 whereby the plaintiff irrevocably committed to pay the sum of US$1m and was thus admitted into the partnership as a Class B limited partner to the extent of his investment. He was also required to execute a Limited Durable Power of Attorney appointing the partnership, the manager of the partnership and a number of persons designated by the partnership to act alone as his attorney-in-fact in his name. In addition to the rescission of this agreement the plaintiff claims, amongst other things, the return of his investment, the rescission, separately, of the loan agreement whereby he borrowed over US$600,000 for the purpose of the investment; damages for fraudulent and/reckless concealment; damages for fraudulent misrepresentations; damages for negligence misstatement and/or misrepresentation; damages for negligence and breach of duty including breach of fiduciary or statutory duty; damages for conspiracy; damages for intentional interference with the plaintiff’s economic interests; damages for unjust enrichment; damages for intentional interference with the plaintiff’s economic interests; aggravated or special damage. The defendants by their defence delivered the 11th January, 2010 take two preliminary objections: that the plaintiff should not be permitted to rely on a document which is extensively pleaded in his proceedings, described by him as the “black brochure” and by the defendants as the “Fund brochure” because they see it as a promotional document which does not give rise to any legal representation. There was also pleaded at that time that the proceedings were premature since the investment had been one which it was clear no funds could be recovered (assuming there were funds to recover) for a period of at least five years which had not then elapsed. The defendant denied that it provided “tailored property funds”, as the plaintiffs had alleged; it specifically denied that the Bank owed any fiduciary duty to the plaintiff; indeed it denied that the Bank owed any duty of care to the plaintiff at all. The defendant stoutly denied any misrepresentation or concealment which, as will be seen, was a substantial part of the detail of the plaintiff’s claim. It denied that any representations were made on which the plaintiff was entitled to rely; it specifically pleaded that it was not liable for its passing on of figures contained in “external reports or the information contained therein”. It was also specifically pleaded by the defendants that they did not know that the plaintiff would rely on their acts, conduct or misrepresentation (which were themselves denied) or that he would be induced thereby to enter into the commitment agreement and pay the monies mentioned. The Bank expressly denied that they were under a duty to take care in the making of any representations. The Bank then specifically denied (and this transpired to be an important pleading) that the plaintiff acted on the foot of any such representations. In other words, the Bank says, apart from anything else, that the plaintiff did not rely on any representations or other material communicated to him. Apart from a general denial of liability, the Bank in fact counterclaimed against the plaintiff on the basis that his proceedings represent a breach of the commitment agreement and of the obligations which he undertook thereunder. The Bank seeks against the plaintiff damages for breach of agreement, warranty representation or acknowledgement. Outline of issues. The plaintiff complained that he was misled, actively or by concealment, in relation to four particular issues. These are: “(1) The zoning issue, also sometimes referred to as the Certificate of Occupancy issue. (2) The cost of renovation issue. (3) The presence of sitting tenants issue. (4) The interest rates strategy issue. The learned trial judge remarked that, on the trial at the High Court (which included extensive cross-examination) most attention had focussed on the first and second of these issues and indeed the arguments on the last issue was not pushed to a conclusion. At the hearing of this appeal the argument focussed exclusively on the first issue. The reason for this exclusive focus requires to be stated because it may not be apparent to those who have not had the transcript of the High Court hearing. It appears to me that the issue relating to the cost of renovations was in the foreground in the appellant’s case there, and that the case they put forward substantially depended on the evidence of Mr. Haskin, who is a long time prominent player in the New York hotel business. Mr. Haskin had originally been a promoter of the Fund with Anglo but subsequently fell out with them. It appears from my understanding of the High Court proceedings that Mr. Haskin’s evidence fell considerably short of what the plaintiff required to prove his case on the renovations cost issue. Accordingly, emphasis shifted before the end of the High Court case and on this appeal to the zoning issue. It was alleged by the plaintiff that the zoning issue, or even the fact that there was a zoning issue, was never disclosed or explained to him; that it was thereby concealed from him either fraudulently or negligently. In order to understand this issue certain terms must be explained. It appears that in New York, and in particular in Manhattan where these hotels are situated, certain terms are used in the hotel industry which have no immediate corresponding term in the Irish hotel business. Most relevant are the concepts of a “transient hotel” which seems to resemble a hotel as it is conceived of in Ireland that is a building in which is carried on the business of offering accommodation food and drink to all comers for agreed periods which are usually short and may be as short as a single night. The term “residential hotel” is used in New York in contradistinction to “transient hotel” and appears to mean a hotel which offers accommodation to “residential” customers for periods of at least one month. Sometimes, indeed, occupation by such customers goes on for years. The units so rented include kitchen facilities and the tenants may cook for themselves, or use the restaurant facilities in the hotel, or simply eat out. A resident may acquire rights against his Landlord and become a sitting tenant. The distinction between these two types of hotel business is rigidly observed in New York usage. A further complicating factor, and one that applies in the case of each of the hotels in question here, is that the actual user of an individual hotel building may be partly transient and partly resident or wholly one or the other. This will be specified on the hotels “Certificate of Occupancy”, a document issued by the local authority and which is, it was said, required to be produced before any building permit can issue. A “residential hotel” is sometimes referred to as “an apartment hotel”, and in that sense means an apartment in a block or group of apartments which is in, or connected to, a building which also has bar, restaurant, meeting rooms and fitness centre services. In the present case, the Eastgate Tower Hotels Certificate of Occupancy was for a transient hotel up to Floor 7 and for a residential hotel from Floors 8 to 25. The “Certificate of Occupancy” for the Beekman Tower was for a residential hotel throughout. Notwithstanding this, it was said, each hotel operated as a transient hotel throughout, and had done so for many years. Obviously, an ability to use premises as a transient hotel is more financially attractive to its owner. This, then, is the “Certificate of Occupancy” issue which arose in March and April 2006. Both premises were owned by the Denihan family, a family long established in the hotel business in New York. At a certain stage, apparently on or about the 3rd April 2006, after the Bank had made a non-binding “best and final offer”, a sort of pre-contractual indicative bid. The vendors, who had done a good deal of “due diligence” made it clear that no further due diligence in relation to the condition of the properties would be permitted and they declined, by imposing an appropriate condition to permit any contact by the would-be purchasers with the New York City Building Department, inquiring about zoning compliance issues. The purchase agreements were signed on the 19th May, 2006, one for each hotel, by Paul Brophy on behalf of the Bank and also on behalf of the second-named defendant, the Bank’s newly formed and wholly owned subsidiary for the purpose of this transaction. These purchase agreements or contracts provided for a closing date on either the 28th September, 2006 or the 3rd October, 2006 depending on the date of the completion of the financial due diligence. But the effect of the contracts was that, subject only to the financial diligence the contracts were “hard”, which means that the deposits which totalled US$11.15m were now non-refundable Eight days before these agreements were signed the final issues between the parties were resolved at a face to face meeting between Mr. Lawrence Denihan of the vendors and Mr. Brophy of the Bank. According to the evidence of one of the witnesses, a Mr. Haskin, eminent in New York hotel circles and a promoter of the Fund, it was hoped to secure a reduction of US$4m per property in respect of the zoning/Certificate of Occupancy issues and of the Bank effectively buying the zoning risk. But in the end the Bank agreed a reduction of only US$1m in total, less than 1% of the purchase price, which was US$151.75m for the two properties. As happened in the High Court, the plaintiff/appellant put considerable emphasis on the signature of the purchase agreements and the consequent rendering of the deposits of over US$11m non-refundable. He said that that meant there was enormous pressure on the Bank to proceed with the transaction and an incentive to cut corners and to distract attention from any difficulties that might arise in an effort to get other investors on board before the closing date. If the other investors could not be provided before the closing date then the Bank would have to complete the transaction in its own and therefore incur an unnecessary second set of transaction costs if third parties investors were subsequently introduced since such investors would certainly require a proprietary interest, direct or indirect, in return for their money. Documents. Two documents played a central role in the arguments in this case. The first of these was referred to as the “black brochure” and it featured largest in the plaintiff/appellant’s submission. It is a high gloss brochure with many illustrations and is designed to be an eye catching and attractive document. From the plaintiff’s point of view it is the most important document in the case and the evidence showed that, although it was finalised in circumstances of considerable pressure, its contents were the subject of many and detailed exchanges between the Bank at a senior level, its employees in New York and its legal and other advisers there. By the time this document was produced the zoning/Certificate of Occupancy issue had clearly emerged and the Bank had taken the view that it was “manageable”. A good deal of discussion had taken place about whether it was necessary to include any reference to this issue in the brochure and it was established in evidence that an eminent zoning lawyer advising the Bank and Mr. Haskin, a Mr. Sillerman, had advised that such a reference should be made and had drafted a form of words for this purpose. This will be considered below. The Bank did not take Mr. Sillerman’s advice. But on the hearing of this Appeal, the plaintiff agreed that his proposed wording would have discharged the Bank’s obligation to disclose the zoning issue. From the plaintiff’s point of view, the salient feature of the black brochure was what it did not say. It did not make any reference at all to the zoning/Certificate of Occupancy issue. This is agreed by the Bank, one of whose witnesses, Mr. Byrne, stated that he feared that such a reference would be misunderstood. He recalled that Autumn, 2006, was the time when the Tribunal of Inquiry into Certain Planning Matters and Payments was ongoing in Ireland and said that mention of the zoning issue might have suggested that it was something “which, in fact, it was not” and might have an off putting effect. Besides, the Bank was genuinely of the view that the issue was manageable. A similar issue had in fact been “managed” in the case of another New York hotel whose purchase the Bank had funded (though without taking any beneficial interest itself), the Mark. The Bank’s fundamental position in relation to this brochure was that it was not a document intended to have any legal effect at all. As we have already seen, the pleadings by the Bank commenced with an objection to any reliance being placed on this document. Apart from this preliminary issue, the Bank relied on the multiple notes of caution and exclusion contained in the document and the manifest urging that a customer would take his own legal, financial, and taxation advice. The black brochure. The brochure consists of thirty-seven pages of text and/or illustration. It is impressively got up with a full colour title page on a black background, featuring photographs of various famous official and commercial buildings in Manhattan. The Bank’s name and logo is at the top with the words “Private Banking” underneath. The document is entitled “The Anglo Irish New York Hotel Fund”. There are further photographs of attractive street scenes in New York before the Table of Contents. After this is a glossy street map locating both hotels about ten blocks apart, not far from the UN building near the East river in Manhattan. This page features a box containing the words:
The basic business plan was outlined as follows:
The structure of the investment is described as follows:
The investment is described as follows:
Non-recourse bank borrowings of US$145.8m are being provided by Anglo to the Fund. The minimum investment is US$1,000,000, although Anglo reserves the right to allow an investment of a lower amount.” Most importantly, from the defendant’s point of view there is the following statement:
The effect of this, read literally, is that Anglo is no more than a post box for information of the sort to which the paragraph relates. Throughout the rest of the document there are generally upbeat boxed statements such as, on p.19 over a colour photograph of an exciting New York streetscape at night:
Risk Factors. At p.28 there is a section entitled “Risk Factors”. This is very heavily relied upon by the defendants. The first three paragraphs require citation in full:
Prospective investors should consider the following risks amongst others” The tight timescale for available for an investor to consider whether or not to invest has already been mentioned. This has a particular relevance in relation to the zoning risk because to take advice on it, as the investors were urged to do, would have involved sourcing and instructing a highly specialised lawyer in New York, and inducing him or her to advise in just a few days. Finally, at p.35 of the document there is a section entitled “Investment Steps”. This says; so far as relevant:- “The following are the steps to be followed once a decision has been made to invest (Emphasis added). (1) The investor should complete the following document
- W - 8 tax form, - Power of Attorney in order to facilitate the operation of the partnership, - Professional Investor Declaration. Zoning warning. The role of Mr. Sillerman, a New York Attorney specialising in planning, has already been mentioned. He and his firm, together with other lawyers were involved in advising Anglo as to whether or not the zoning issues required to be disclosed. In an email of the 31st August, 2006 Mr. Garrett Thelander of Anglo had suggested to him by Mr. Sillerman the following words for zoning disclosure i.e. a form of words suggested for use in what became the “black brochure”. This was as follows:
The Company intends to continue operating the Eastgate and the Beekman as transient hotels. It should be noted that the Certificates of Occupancy for the hotels permit only partial transient hotel use for the Eastgate and only residential hotel use for the Beekman. Both hotels are in an area of Manhattan in which the construction of a new building for use as a transient hotel (as opposed to use as a residential hotel) is not permitted on an as-of-right basis. However, zoning regulations permit the continuation of a use where prior non-conforming use is demonstrated. Zoning Counsel has advised the Fund that other hotels in circumstances similar to those of the Eastgate and the Beekman have been traditionally granted changes to their Certificates of Occupancy to permit transient use. However, Zoning Council has also advised the Fund that it cannot be completely assured of that outcome. If the use of the hotels for transient purposes were to be challenged, the Fund would either apply to obtain the changes, which could take time, or operate both hotels as residential to the extent required”. But the “prudent investor”, like the “reasonable man” is a legal fiction, a construct, an abstraction, whose putative thoughts and actions may on occasion bear little or no resemblance to how real people actually operate. The Commitment Agreement. This document was signed by the plaintiff on the 27th September 2006 and is the principal document or agreement of which the plaintiff seeks rescission. Clause 3 of the document is extensively relied upon in the defendant’s defence, referred to above. Particular emphasis is placed on the “Representation and Warranties of the Investor” set out there:
… (e) “To the full satisfaction of the Investor, the Investor has been furnished any materials the Investor has requested relating to the Partnership and the offering of the Interests and the Investor has been afforded the opportunity to ask questions of representatives of the Partnership and Mainland concerning the terms and conditions of the offering of Interests and to obtain any additional information necessary to verify the accuracy of any information provided to such Investor and to make an informed investment decision with respect to an investment in the Partnership,
(k) The Investor has, based on his or her own investigation of the interests, the Properties and the Partnership, made his or her own independent analysis of the likelihood of its success and such investor acknowledges and agrees that the information regarding the Interests, the Partnership and the Properties (including financial, operational and performance data and projections) and the economic and market information contained in any materials provided (whether by Mainland or others) to such Investors in connection therewith would have been obtained or derived from sources prepared by other parties and that none of the Partnership, Mainland, their respective Affiliates, nor any of their respective directors, officers, employees, partners, shareholders, advisors, attorneys-in-fact, representatives or agents, assumes any responsibility for the adequacy, accuracy, completeness or reliability of such material or such information, the Investor acknowledges that past performance is no indication of future results, and that actual results may differ materially from projected, estimated or targeted results. (i) The Investor acknowledges and agrees that (i) any materials provided (whether by Mainland or others) in connection with such Investors’ investment in the Partnership and indirectly, the Properties, do not purport to be comprehensive or complete or to contain all information or to describe the risks and potential conflicts of interest that such Investor may consider material in making a decision to invest in the Partnership and, indirectly, the Properties. (ii) such Investor must perform his or her own independent due diligence and independent analysis of the merits and the legal, tax, regulatory, financial and other risks of an investment in the Partnership (and any series of Interest therein) and, indirectly, the Properties prior to subscribing for Interest, and (iii) none of Mainland, its respective Affiliates, nor any of their respective directors, officers, employees, partners, shareholders, advisors, attorneys in fact, representatives or agents assume any responsibility for, and shall have no liability in respect of the materials referred to in Clause (i) above, It is true, and the learned trial judge acknowledged it, that these clauses referred to “the partnership, the general partner, Mainland, their respective affiliates and their respective directors, officers, employees, partners, shareholders, advisers, attorneys-in-fact, representatives or agents” do not refer specifically to the Bank. But it was the learned trial judge’s view that:
These “representations and warranties” are said to have been made by the plaintiff but were in reality drafted by the Bank, presented to Mr. McCaughey and signed by him. In my view they are in terms which are breathtakingly broad. They involve him stating that he has all the material that he wants, that he is not relying on any representations and that he has made his decision on the basis of his own appraisal, and that he recognises that he may not have been given complete information but wishes to proceed all the same. This assessment is substantially that of the learned trial judge. I agree with it and would further say that the object of the clauses just quoted is to exempt the Bank from liability for anything except direct lies and actual fraud or fraudulent concealment. The Resolution in the High Court. The resolution of this action in the High Court very largely influences the approach that must be taken on this appeal. The learned trial judge, having set out the causes of action which the plaintiff urged found at p.42 as follows:
With reference to that case Hamilton C.J. observed that it clearly established that when parties are in a contractual relationship, their mutual obligations arise from their contract and are to be found expressly or by necessary implication in the terms thereof and that obligations in tort which may arise from such contractual relationships cannot be greater than those found expressly or by necessary implication in their contract. While the exemption clauses are very comprehensive indeed it is, nonetheless, not in dispute that the plaintiff is not in any way prohibited from pursuing the claim that he wishes to in fraud, resulting if successful in an order for rescission. The law does not permit a contracting party to exclude liability for his own fraud in inducing the making of the contract, a long established principal that was restated relatively recently by the House of Lords in H.H. Casualty and General Insurances Limited v. Chase Manhattan Bank [2003] 1 CLC 358. If the plaintiff is to succeed therefore, he must establish fraud.” _______________________________________________________ The significance of what was held in the passage just cited is momentous in terms of the resolution of this Appeal. As we have seen, the learned trial judge cited the clauses in the Commitment Agreement relied upon by the defendant in its defence, whose effect is summarised above and whose text has been set out earlier. I do not at all dissent from the learned trial judge’s summary of the effect of these clauses: indeed, I would put it still more directly and say that the Bank has exempted itself from liability for anything short of direct lies or fraudulent concealment. A Bank will rarely need to have to have recourse to direct lies in order to achieve a desired result. I would also point out that the relationship brought about by the Commitment Agreement is absolutely at variance with the relationship of customer and “Private Banker” as described and acknowledged by Mr. Brophy, but this latter found no reflection in the legal documents put forward by the Bank and signed by the plaintiff, whatever impression may have been generated in less formal language and more relaxed circumstances. The plaintiff says that terms by way of exemption or exclusion of liability as drastic as those found in this case are “particularly onerous or unusual”. The Court of Appeal in England held in the case of Inter-photo Picture Library Limited v. Stiletto Visual Programme Limited [1989] 1 QB 433 that clauses which fall within this category must be shown by the parties seeking to rely on them to have been “brought fairly and reasonably to the attention of the other party”. The plaintiff relies on the words of Bingham LJ (as he then was) at p. 445:
The learned High Court judge distinguished this case on its facts holding, at p.37 that:
The learned trial judge held (p.41) that the present was a case of contractual estoppel “whereby the parties have expressly and specifically agreed that irrespective of whether a representation was made or not, or whether there has been any non-disclosure, that the plaintiff would not rely on that”. He was thus confined to relying on a cause of action in fraud and nothing else. The learned trial judge then went on to consider what was required in order to establish fraud. He followed the decision of Shanley J. in Forshall v. Walsh and Bank of Ireland (High Court, unreported 18th June, 1997). This case listed the elements which a plaintiff seeking to establish fraud or deceit must show: “(i) The making of a representation as to a past or existing fact by the defendant, (ii) That the representation was made knowingly or without belief in its truth, or recklessly, careless of whether it is true or false, (iii) That it was intended by the defendant that the representation should be acted upon by the plaintiff, (iv) That the plaintiff did act on foot of the representation and (v) That the plaintiff suffered loss as a result.” These elements of actionable deceit have been well established in the case law for well over a century. Since that line of authority is aptly epitomised in a modern Irish case, there is no need to review the authorities generally. But the present case is based very largely on concealment, and it is obvious that to suppress a material fact may give a false impression even though no positive falsehood is spoken or written. This state of affairs has been recognised by the law for centuries. It was strikingly expressed almost one hundred and fifty years ago in another case to do with a company seeking investors, Oakes v. Turquand and Harding [1867] LR 2 HL 325 when Lord Chelmsford said:
The High Court’s dismissal of the fraud allegations. The High Court dismissed fraud allegations in relation to each of the matters mentioned above as forming the subject of dispute. The High Court also dismissed the non-fraud allegations, for example those of negligence, largely on the basis of a finding that the disclosure of the zoning issue would not have made any difference to the plaintiff: he would have proceeded with the investment regardless. In doing so, it held (p.47) that:
In the particular context of the zoning issue, the learned trial judge first essayed, it seems to me with great success, a “thumbnail sketch of the zoning law in New York” at p.70 ff. He then offers a detailed relevant history of the hotels in question from a zoning point of view before turning to the question of zoning as it appeared in the context of the Bank’s contract to purchase the hotels (March - May 2006) and again, five or six months later, in the days prior to the finalisation of the text of the black brochure (last days of August and into September, 2006). It should be said that the learned trial judge acknowledged the distinction made by the plaintiff between the zoning issue and the other issues in that the zoning issue gave rise to very serious discussion between Anglo, their American partners and the lawyers representing various participants as to whether or not disclosure of the zoning issue should be made whereas the other issues did not cause any such anxiety. This discussion is analysed in great detail between pages 74 and 89 of the learned trial judge’s judgment. He concluded that:
The learned trial judge placed particular emphasis on the fact that the hotels are still operating “to this day other than in accordance with their Certificates of Occupancy”. He also acknowledged that there was no absolute certainty that the zoning issue could be resolved but observed, at p.86;
Finding on non-fraud issues. The learned trial judge next connected the fraud and non-fraud issues with his finding on p.93:
He elaborated on this finding as follows:
The learned trial judge then went on, at p.95 to reiterate his dismissal of the fraud based causes of action. He then observed that:
The explicit finding on the basis of which the learned trial judge dismissed the plaintiff’s non-fraud claims is his finding that the plaintiff would not have been dissuaded from investing by being told the reality of the zoning situation. In the course of the hearing of this appeal Mr. Hayden S.C. for the plaintiff/appellant specifically conceded that the wording suggested by Mr. Sillerman, and set out above, would have been sufficient, in the plaintiff’s view, to meet the Bank’s disclosure obligations. Referring to this form of words, the learned trial judge found:
Status of the foregoing findings. The above findings have been made by the learned trial judge in the course of a meticulous judgment and after a hearing in which both the plaintiff and witnesses on his behalf, including expert witnesses on New York Law, gave evidence and were cross-examined. Similarly most of those involved on the side of the Bank and their advisers, including each sides expert on New York Zoning Law gave evidence and were cross-examined. The content of foreign law requires to be proved as a fact in this jurisdiction and in most Common Law jurisdictions. I am therefore of the view that the findings set out above, both as to the significance of the zoning issue and as to the state of mind of Mr. McCaughey, are findings of fact made by the judge of the High Court after hearing appropriate evidence to allow him to make them. I am also of the opinion that they are findings of primary fact being “determinations of fact depending on the assessment by the judge of the credibility and quality of the witnesses. It is for the determination of those facts that a viva voce hearing takes place”. The foregoing quotation is from the judgment of Henchy J. in M. v. An Bord Uchtála [1987] IR 510 at 523. In such circumstances, as Henchy J. puts it:
(i) “… all involved in the two hotels in 2006 were entitled to be confident that the issues relating to zoning and Certificates of Occupancy could and would be regularised. Whether the Certificates of Occupancy would be permitted to be amended was primarily an issue of fact.” (ii) “… I do not believe that the brochure misrepresented the situation as of the date of publication.” (iii) The judge heard conflicting evidence from “two distinguished members of the New York Land Use Bar, Mr. Sillerman and Mr. Masyr”. With the result that, as he said “I am now left with the unenviable task of choosing between the correctness of their views when they find themselves in disagreement”. He preferred the defendant’s experts evidence. (iv) The learned trial judge withheld belief from the plaintiff’s assertion that “he would not have invested in the Fund had the brochure contained any reference to zoning”. The judge held that the phrase “I would not have invested” itself “became something of a mantra”, and gave reasons for that conclusion. (v) “In my view no reasonable prudent investor who found the proposed investment otherwise attractive is likely to have been dissuaded from investing by being told about the reality of the zoning issue”. The plaintiff/appellant criticised those findings and others like them on the grounds that they attached too much importance to what a “reasonable person” or a “prudent investor” would have thought about the reality of the zoning issue and how such a hypothetical person would have acted. This, counsel said, was to impose an objective standard whereas the plaintiff was entitled to have the effect of the omission to mention zoning assessed in terms of its subjective impact upon him. I do not accept that this is a proper ground of criticism of the judgment. When one is assessing a statement of a person as to what he would have done, or not done, had matters developed differently to the way they actually developed, it is reasonable to consider, as a starting point, whether his claimed reaction would have been reasonable. It would quite wrong, of course, to proceed on the basis that only a reasonable reaction was open to him because the Courts very often see instances where people react to particular developments in ways which are irrational, exaggerated, unduly bellicose or unduly timid, or otherwise improbable. But the learned trial judge’s finding here made every allowance for the capacity for odd reactions for subjective reasons and found that, though he did not accept Mr. McCaughey’s evidence that “I would not have invested”, that this reaction was subjectively genuine and “the product of hindsight and wishful thinking”, not of deliberate falsehood. The dictum of Henchy J. on the status of judicial findings of fact is consistent with the long established jurisprudence in this country and in the neighbouring jurisdiction from The S.S. Gairloch, Aberdeen Glenline Steamship Company v. Macken [1899] 2 IR 1, Minister for Justice v. S.M.R. [2008] 2 IR 242. In the former case, Holmes LJ said:
To practically the same effect is the well known dictum of McCarthy J. in Hay v. O’Grady [1992] 1 IR 210 at 217:
If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.” The finding as to Mr. McCaughey’s intending to invest in the Fund regardless of what he was told about the zoning issue is a finding as to his state of mind. This, on the authority of Bowen LJ’s well known dictum in Edgington v. Fitzmaurice (1885) 29 Ch D 459, is a matter of fact. Edgington is another case where an investor was gravely disappointed and considered that the terms of a prospectus on the faith of which he had invested money were fraudulent both in what they said and what they omitted to say. He was upheld in these beliefs by both the High Court and the Court of Appeal in England. One of the points which those concerned in the management of the Company took in answer to his claim was that certain statements in the prospectus were not statements of fact, as is required to constitute actionable fraud, but merely statements of intention. In a memorable passage, at p.483 of the Report Bowen LJ found as follows:
In my view, it cannot be said that the learned trial judge’s findings in this regard is not “supported by credible evidence” and the findings certainly cannot be said to be “so clearly against the weight of the testimony as to amount to a manifest defeat of justice”. I therefore consider this Court to be bound by that finding. The finding itself is fatal to the non-fraud causes of action because it destroys the causal link between the tort, however framed, and the deleterious result. The learned trial judge’s conclusions on the fraud based causes of action are themselves based on findings of fact from which there is no scope for departing, some of which are set out below. Conclusion. I would dismiss the appeal and uphold the order of the learned trial judge. | ||||||||||||||||