Strict Authentication under the 2020 Act, Interrogatories as Evidence, and Limits on Tracing: Nolan & Ors v Dildar Ltd & Ors [2024] IEHC 4

Introduction

This Commercial Court judgment of the High Court of Ireland (McDonald J., 10 January 2024) is one of the most substantial evidence-led decisions in recent Irish civil litigation. It arises from a failed pension “structure” devised to move funds from the Oaklands Property Trust (OPT), the Nolan family’s pension trust, through a UAE company (MECD) and a Panamanian company (CVSSA) into Swiss bank accounts at EFG Bank. The plaintiffs alleged misappropriation, deceit, and fiduciary breaches against three sets of defendants: the solicitor (Mr Desmond), the “Millett defendants” (a financial adviser and his corporate vehicles), and the “Kenny defendants” (including Dildar IOM, which acquired the “Nemo Rangers” lands in Cork).

The decision is a touchstone on:

• How Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the “2020 Act”) applies to business records, in particular the strict need for authentication under s.18 and the fairness override under s.16;
• The treatment of interrogatories once tendered at trial, and the sharp distinction between a withdrawable “admission” and evidence already adduced;
• Electronic evidence extracted from a mobile device copy, chain of custody and integrity safeguards, and limited admissibility of text messages (party admissions vs hearsay);
• The heightened consequences of deliberate falsehoods by key witnesses; and
• Why the plaintiffs’ equitable tracing claim over the Nemo lands failed, and why a narrow personal data misuse claim succeeded in nominal damages only.

Case Background

The plaintiffs (trustees of OPT) asserted that €6.96m in pension assets had been misappropriated after being transferred from Investec (Ireland) to MECD (UAE) and onward to CVSSA’s accounts at EFG Bank (Zurich). They sought recovery, and a declaration permitting tracing into the Nemo Rangers lands held by Dildar IOM. The pleaded case was amended mid-trial to acknowledge that the original purpose of the structure was to facilitate using pension funds to settle the Nolan family’s personal debts (not—as originally claimed—protection from Irish bank instability).

Key events included:

• Multiple transfers from OPT to MECD (Jan–Jun 2013), some onward to CVSSA, and two routed to Serene (IoM) used to settle Bank of Ireland proceedings against Nolan family members;
• Texts between Mr. Desmond and Mr. Millett in summer 2013 around release of monies to complete the Nemo purchase;
• On 3 September 2013, €2.828m was transferred from CVSSA’s euro account at EFG to the vendor’s solicitors for the Nemo closing, briefly overdrawing the euro account until a 5 September USD→EUR currency sale replenishment;
• During trial Day 5, Mr Desmond consented to judgment for €6.9m and costs for negligence, breach of contract and fiduciary duty “in the context that he controlled CVSSA and that the plaintiffs' pension monies were in CVSSA.”

Summary of Judgment

• Credibility findings: The Court found the two principal witnesses for the plaintiffs (Richard and Patricia Nolan) unreliable in major respects. They had promoted an untrue narrative about bank-instability risk, failed to disclose the true purpose of the structure until the 11th hour, and gave incorrect evidence to the Law Society Disciplinary Tribunal. That undermined large parts of their testimony (Shelly-Morris principle).
• 2020 Act (business records) ruling: The Court refused to admit copy documents (alleged EFG loan agreement and pledge) under Ch.3, s.18 (no adequate authentication) and under s.16 (interests of justice/unfairness). The plaintiffs had left proof to the last moment and had not called the bank or the solicitor who controlled CVSSA.
• Electronic texts: The Court held that text messages sent by Mr. Millett were receivable and admissible against him as statements against interest; texts authored by others (e.g., Mr Desmond) were hearsay, inadmissible against co-defendants absent an exception. The Court criticised an initial mischaracterisation: the device analysed was a copy iPhone image, not the original Desmond phone; the plaintiffs only clarified this after questioning.
• Interrogatories: Once the plaintiffs tendered answers to interrogatories as part of their evidence, they could not withdraw reliance mid-trial. Such answers became part of the trial record to be weighed alongside all other evidence (Endeavour Wines; O.31 r.24), not a withdrawable “admission” under O.32.
• Misrepresentation and fiduciary claims against the Millett defendants: Failed. With the plaintiffs’ principal narrative discredited, the remaining admissible evidence did not prove deceit or breach of fiduciary duty prior to the Nemo closing.
• Tracing claim against the Nemo lands: Failed. The plaintiffs did not prove a relevant fiduciary breach prior to the payment, nor the existence of any pledge. The bank statements showed that after the Nemo completion and the 5 September replenishment, there remained sufficient funds to satisfy the plaintiffs’ claim; and the euro account had been overdrawn at the time of the payment, complicating any following of trust monies.
• Personal data claim: Succeeded in part against Mr. Millett only (not the Kenny defendants): he had provided the Nolans’ personal data (names, addresses, PPS numbers, dates of birth, passport copies) to Mann Made in 2013 without consent, contrary to the Data Protection Acts 1988–2003. Nominal damages of €500 per personal plaintiff (€3,000 total) were awarded.
• Orders: The Court dismissed the claims against the Kenny defendants and most against the Millett defendants, refused the plaintiffs’ 2020 Act applications and the attempt to withdraw interrogatories, awarded nominal damages for data misuse, and gave directions regarding sums subsequently paid into court from CVSSA/MECD.

Analysis

1) The 2020 Act: Business Records, Authentication (s.18) and the Fairness Override (s.16)

This judgment sets a clear, strict approach to the admissibility of business records under Chapter 3 of the 2020 Act:

• Two thresholds: (i) the original record must be admissible under ss.13–15 (ordinary course of business etc.), and (ii) a copy must be authenticated “in such manner as the court may approve” including as to reliability (s.18(1)).
• Authentication is not optional: The Court rejected an attempt to treat the s.18 authentication proviso as surplusage. Although the court retains a wide discretion on acceptable authentication, some authentication is mandatory. Here, a bare letter from Irish solicitors for EFG forwarding a client letter confirming copies was insufficient; there was no sworn first-hand evidence clarifying completeness, provenance, or reliability (particularly the pledge).
• Fairness (s.16) can exclude otherwise admissible records: Even if the copy hurdle had been passed, the Court would have excluded the documents under s.16(2)(c) because admitting them without any witness from EFG/CVSSA (or Mr Desmond) would deprive co-defendants (not party to the alleged pledge) of an opportunity to controvert the evidence by cross-examination.

The Court canvassed criminal-law analogues on copy documents (Criminal Evidence Act 1992, s.30): DPP v McGrath and PPS v Duddy show how sworn oral evidence authenticating a copy can suffice; and Carey v Hussey illustrates judicial discretion in obvious contexts (photocopy of a court order). But Nolan underscores that, for complex foreign banking arrangements with contested legal effect, litigants should not expect relaxed authentication.

Practice point: Parties who intend to rely on foreign bank records or pledges should secure timely sworn evidence from the institution (or use evidence-commission processes). The 2020 Act is not a shortcut to avoid calling a witness.

2) Interrogatories: Tendered Answers Are Evidence, Not Withdrawable “Admissions”

The Court refused to allow the plaintiffs to withdraw reliance on certain interrogatory answers after the Kenny defendants had used them in cross-examining the plaintiffs’ expert. The governing rule is O.31 r.24: once a party “uses” interrogatory answers at trial, they become part of the evidence and cannot be retrieved as if they were mere admissions under O.32. The Court relied on the long-cited principle from Endeavour Wines v Martin [1948], cited in the White Book and Matthews & Malek on Disclosure: interrogatory answers, once tendered, are part of the “general body” of evidence; they do not bind the tendering party, but are weighed with all evidence.

Attempts to apply the flexible “withdrawal of admissions” jurisprudence (e.g., Gale v Superdrug Stores, Braybrook v Basildon) failed because the plaintiffs sought to withdraw evidence, not a pleading-stage admission. The Court also noted prejudice to trial management and fairness, especially given the already late amendments and shifting narratives.

Practice point: Be deliberate before handing up lists of interrogatories “relied on”; once used, they are in the evidential mix for good, even if unhelpful.

3) Electronic Text Messages: Receivability, Hearsay, and Chain of Custody

The Court engaged with modern evidential challenges around smartphone messages:

• What device was examined matters: The experts examined a copy iPhone image created by the plaintiffs in 2015, not Mr. Desmond’s original phone. This only emerged during the expert’s testimony after judicial questioning. The Court expressed concern about the misleading impression created by the plaintiffs’ presentation.
• Receivability vs admissibility: Messages sent by Mr. Millett were receivable and admissible against him as statements against interest. Messages sent by others (e.g. Mr. Desmond) were hearsay in relation to co-defendants; absent a hearsay exception, they were not admissible against those co-defendants.
• Integrity checks: The plaintiffs’ forensic process lacked the robust audit trails (e.g. checksums at the acquisition from the original phone) expected in best practice; the Court accepted some messages as genuine based on corroboration (including Mr. Millett’s admissions), but treated the dataset with caution.

Practice point: Where a party relies on smartphone evidence, ensure transparent chain-of-custody and integrity verification at each stage. Expect strict hearsay scrutiny: a text by A is not automatically admissible against B.

4) Witness Credibility and the Shelly-Morris Principle

A dominant theme is reliability. The Court found that the plaintiffs’ witnesses presented a false narrative (bank-instability rationale) and withheld crucial facts (use of pension-related funds routed via Serene to settle family debts). Applying Shelly-Morris v Bus Átha Cliath principles, deliberate falsehoods undermine general credibility: where a case rests heavily on a party’s testimony, falsehoods on material topics can mean the remaining onus is not discharged.

Practice point: In complex commercial cases, candour and consistency are decisive. Late amendments admitting previously concealed motives or facts will be fatal to credibility and, in turn, to dependent issues such as misrepresentation and fiduciary breach.

5) Contract and Misrepresentation Claims Against the Millett Defendants

The Court could not find that the plaintiffs contracted personally with Mr. Millett (as opposed to his corporate vehicles), nor that the alleged early representations (e.g., funds to be held on trust in a simple deposit account, consent-based use only) were made or relied on. It was inherently improbable, given the structure’s intended purpose (facilitate debt settlements without triggering pension tax consequences), that funds were to be held on simple, on-demand deposit for the trustees or beneficiaries.

Moreover, the plaintiffs’ own documents (investment application forms and Investec instructions) spoke repeatedly of “investment” and “investor numbers”. The Court found that neither the alleged temporary “power of insight” nor later “signature arrangements” could rescue a deposit-on-trust case that never aligned with the structure’s reality.

6) The Tracing Claim over the Nemo Rangers Property

The plaintiffs advanced an equitable tracing claim on the basis that closing monies flowed from a mixed fund comprising OPT monies and Kenny funds, and that a prior breach of fiduciary duty (or pledge) tainted the fund to a constructive trust. The Court rejected the claim:

• No proven breach at the relevant time: There was no proven breach of fiduciary duty by the Millett defendants before the 3 September 2013 transfer. The Court would not treat Mr Desmond’s consent judgment as establishing the date and content of a breach against third parties; the breach was not proven against the Kenny defendants.
• No proved pledge: The alleged EFG pledge was not admitted under the 2020 Act; nor could it be inferred from text fragments or hearsay references to acronyms (UOB/BNPP) shorn of context.
• Bank statements defeated misappropriation theory: The euro account was briefly overdrawn by the closing payment, and then replenished by a currency sale from the US dollar account; after replenishment, the US dollar account still held sufficient sums to satisfy the OPT claim, undermining the argument that OPT monies were misappropriated into the Nemo purchase.

Practice point: Tracing into land bought with a mixed fund is not available without proof of a prior, causative fiduciary breach (or equivalent) and a misappropriation at the time of the tainted transfer. Overdrawn-account mechanics and available balances matter.

7) The Narrow Win: Personal Data Misuse

The Court held that Mr. Millett, personally, breached the Data Protection Acts 1988–2003 by sending Nolans’ personal data (identity documents, PPS numbers, addresses, dates of birth) to Mann Made without consent. Although the letter bore his company’s letterhead, a director who procures a tort is personally liable. However, with no evidence of wider dissemination or consequential loss, the Court awarded nominal damages of €500 per personal plaintiff (€3,000 total). The claim against the eleventh defendant failed for lack of proof of involvement in the data misuse.

Practice point: Professionals must handle client KYC data lawfully; unauthorised sharing, even to a corporate service provider, is actionable. Where no loss is shown, damages may be nominal—but liability still attaches.

Key Precedents and How They Were Used

• RAS Medical Ltd v RCSI [2019] 1 IR 63 and Leopardstown Club v Templeville Developments: Affirm the two-step analysis for documents—receivability (authenticity) and admissibility (truth of contents), and the Bula/Fyffes practice of admitting discovered documents as prima facie proof against their maker.
• 2020 Act Chapter 3 (ss.13–18): The Court fortified the authentication requirement for copies (s.18) and deployed the fairness override (s.16) to prevent admission of documents where the opposing parties could not reasonably controvert them.
• DPP v McGrath; PPS v Duddy; Carey v Hussey: Illustrate acceptable authentication pathways and exercise of discretion in different contexts—insufficient here.
• Endeavour Wines v Martin [1948]: Once interrogatory answers are tendered, they are evidence to be weighed; not a mere admission that can be retracted.
• O'Toole v Heavey; Moorview Developments v First Active: When a defendant calls no evidence, the judge still must decide whether the plaintiff has proved the case on the balance of probabilities—not just whether there is a prima facie case (as in a non-suit).
• Shelly-Morris v Bus Átha Cliath: Deliberate falsehoods by a plaintiff undermine reliability across the case, making speculation or benevolent guesswork improper.
• Prest v Petrodel; ex p TC Coombs: Silence can justify inferences in some contexts, but Nolan shows courts will hesitate where evidence gaps are self-inflicted and allegations are serious (e.g., deceit).
• Cropper v Smith; Aer Rianta v Walsh Western; Woori Bank v KDB: Liberal amendment principles and prejudice analysis—distinguished here because the plaintiffs sought to “withdraw evidence,” not amend pleadings.

Impact and Practical Guidance

• Evidence planning in Commercial litigation: Nolan is a cautionary tale: do not rely on the 2020 Act as a “Plan B” for critical foreign banking documents. Secure sworn authentication early, or serve a s.15 notice in time; anticipate s.16 fairness objections where cross-examination would be necessary.
• Interrogatories strategy: Treat the decision to “rely on” answers like calling a witness. Once used, they are in. If you wish to preserve flexibility, defer formal reliance until the end of your case and be explicit about the purpose.
• Electronic evidence hygiene: Maintain full chain-of-custody; avoid confusion between an original handset and a derived copy. Document integrity checks (hash values) at each stage and be prepared to explain them.
• Witness credibility is pivotal: Deliberate untruths can topple entire causes of action. Where a litigant suppresses the true purpose of a structure until forced to disclose it (e.g., by discovery motions), courts will be slow to accept their unsupported word on disputed facts.
• Tracing is demanding: To trace into a mixed fund asset, plaintiffs must prove a breach at the relevant time and a misappropriation; mere bank operational difficulty or delay in release does not suffice. Overdrawn ledger positions and remaining balances can be fatal to misappropriation narratives.
• Data protection compliance: Even limited, one-off unauthorised disclosures generate liability; professionals should treat client KYC data as strictly controlled personal data, not free-floating identifiers for “administrative convenience”.

Complex Concepts Simplified

• Receivability vs Admissibility: Receivability asks “is this document authentic?” Admissibility asks “may we treat its contents as true?” You usually need both.
• Business records (2020 Act): A document made in the ordinary course of business can be admitted for its truth, but copy documents must also be authenticated (s.18), and the court can refuse admission if unfair (s.16).
• Interrogatories: Written questions answered on oath before trial. If you “use” the answers at trial, they become evidence that cannot be withdrawn, though you can still contest their truth with other evidence.
• Hearsay vs Admission: A statement by a party can be used against that party (admission). A statement by one defendant is not, without more, admissible against co-defendants (hearsay).
• Equitable tracing: Following misapplied trust or fiduciary funds into other assets. Requires a prior breach/misapplication and the ability to identify that the misapplied funds formed part of the acquisition price.
• Checksum/Hash: A digital fingerprint of data used to verify that no changes occurred during copying; key for demonstrating integrity of electronic evidence.

Conclusion

Nolan & Ors v Dildar Ltd & Ors is a landmark evidence decision on three fronts: (1) a rigorous approach to the 2020 Act’s business records regime—authentication of copies is essential, and fairness can veto admission; (2) once tendered, interrogatory answers are trial evidence and cannot be withdrawn; and (3) electronic evidence must be gathered and presented with exacting integrity safeguards, and its hearsay character carefully managed.

On the merits, the plaintiffs’ case collapsed under the weight of credibility issues and proof gaps. The Court found no proven pledge or fiduciary breach before the Nemo closing, and the bank statements showed sufficient funds available after the payment to satisfy the plaintiffs’ claim—defeating the tracing theory. The only success was a narrow, nominal award for unauthorised disclosure of personal data by Mr. Millett.

For practitioners, Nolan is a powerful reminder that Commercial Court litigation is won or lost on careful preparation: early and proper proof planning, disciplined use of interrogatories, stringent e-evidence hygiene, and unwavering honesty. Where a party’s case depends on filling evidential holes by inference, courts will not speculate—especially where deliberate falsehoods were told along the way.