Madigan v Promontoria [Oyster} Designated Activity Company & Anor (Approved)

Factual and Procedural Background

This case involves an appeal from a Circuit Court decision, heard de novo by the High Court, concerning the authenticity of a mortgage deed signature. The Plaintiff contends that the signature on the mortgage and related documents is not hers and was forged. The Defendants assert the opposite, maintaining that the Plaintiff signed the mortgage in the presence of a solicitor who witnessed the signature. The property at issue is a modest holiday home in Co. Wexford, owned solely by the Plaintiff for approximately three decades, with a deep familial connection.

Prior to the proceedings, the Plaintiff made a complaint to the Law Society in early 2019 and applied ex parte for injunctive relief, resulting in an interim injunction restraining the Defendants from selling or advertising the property. The interlocutory hearing was delayed due to the Covid-19 pandemic. In June 2022, interlocutory relief was granted to the Plaintiff, including orders regarding the maintenance and management of the property, which the Plaintiff contends were not complied with.

The trial before the Circuit Court took place in May 2023, and the appeal arises from the order made on that date. The central issue is whether the Plaintiff signed the mortgage deed dated 22 March 2004, which purportedly bears her signature witnessed by a solicitor.

Legal Issues Presented

1. Whether, on the balance of probabilities, the Plaintiff signed the mortgage deed dated 22 March 2004.
2. Whether the signature on the mortgage deed and related documents was properly witnessed by the solicitor.
3. The effect of a forged signature on the validity of the mortgage and the registration of the mortgage as a burden on the Plaintiff's property folio.
4. The entitlement of the Plaintiff to have the register rectified due to the registration of a fraudulent instrument.
5. Whether damages, including exemplary damages, are payable to the Plaintiff for wrongful appointment of a receiver and failure to maintain the property.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff asserts that the signature on the mortgage deed and other documents is not hers and was forged.
• She provided consistent testimony that she never signed the mortgage or related documents and would have remembered doing so given her sole ownership and emotional attachment to the property.
• Expert handwriting analysis by Mr Madden conclusively excludes the Plaintiff as the author of the disputed signatures.
• The Family Home Declaration was falsely sworn and improperly witnessed.
• The Defendants failed to comply with court orders regarding maintenance of the property, causing deterioration and loss of use.
• The Plaintiff claims damages, including exemplary damages, for trespass and wrongful appointment of a receiver.

Defendants' Arguments

• The Defendants maintain that the Plaintiff signed the mortgage and related documents on or about 15 March 2004 in the presence of the solicitor, Mr Keenan, who witnessed the signatures.
• They rely on the presumption of due execution of the mortgage deed and the attestation clause as prima facie evidence.
• The Defendants argue that as a purchaser for value, they are entitled to rely on the conclusiveness of the Register, notwithstanding any alleged fraud.
• The Defendants deny that the Plaintiff’s signature was forged and assert that their defence is based on the genuineness of the mortgage.
• They contend no actual damage has arisen from the registration of the mortgage.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a rigorous examination of the evidence, focusing on the authenticity of the Plaintiff's signature on the mortgage deed and related documents. The Plaintiff provided cogent and consistent testimony denying she signed the mortgage or related documents, supported by her strong personal and familial connection to the property, which made it highly unlikely she would have signed away the property without recollection.

Expert handwriting analysis by Mr Madden, an independent and highly qualified document examiner, conclusively eliminated the Plaintiff as the author of the signatures on the mortgage, the Family Home Declaration, and other questioned documents. Mr Madden’s analysis was thorough, detailed, and uncontroverted, with his strongest opinion given after examining the original documents.

The Defendants’ sole witness, Mr Keenan, a solicitor who purported to have witnessed the signatures, candidly admitted he had no specific recollection of the meeting or the signing, relying solely on his interpretation of notes and documents from 19 years prior. The Court found his evidence sincere but mistaken, and that the signature on the mortgage was a forgery.

The Court found the Defendants’ argument based on the presumption of due execution and the conclusiveness of the Register to be undermined by the established facts of fraud and forgery. The Registration of Title Act 1964 was interpreted to allow rectification of the Register where actual fraud is found, which the Court held was the case here.

Regarding damages, the Court accepted that the Defendants wrongfully appointed a receiver and failed to maintain the property, causing loss of use and deterioration. The Court awarded damages, including exemplary damages, reflecting the duration of deprivation and the significance of the property as a cherished family home.

The Court rejected the Defendants’ late reliance on being purchasers for value without notice, noting this was not pleaded and did not form part of their defence. The Defendants’ failure to challenge the expert handwriting evidence or to provide contrary expert opinion further weakened their position.

Holding and Implications

The Court’s final decision is that the Plaintiff did not sign the mortgage deed dated 22 March 2004, and the signature on that document is a forgery. Consequently, the mortgage deed is a fraudulent instrument, and the registration of the mortgage as a burden on the Plaintiff’s property folio was procured by fraud.

The Court directs the rectification of the Register to remove the fraudulent mortgage burden.

The Court awarded damages of €53,000 to the Plaintiff, comprising €43,000 for loss of use over 43 months and €10,000 in exemplary damages, reflecting the Defendants’ conduct in persisting with the receivership despite being on notice of the forgery.

No new legal precedent was established beyond the application of existing principles concerning forgery, fraud, and the Registration of Title Act 1964. The decision underscores the Court’s willingness to rectify the Register where actual fraud is demonstrated and affirms the civil standard of proof in fraud cases. The ruling also highlights the importance of accurate and truthful affidavits and the weight of expert forensic evidence in resolving disputes over document authenticity.