Factual and Procedural Background
This judgment concerns three related sets of proceedings arising from two loans advanced by Company A in 2005, secured by a mortgage over a property jointly owned by the Defendants in The State. The Plaintiff claims default in repayment of the loans and seeks possession of the property and judgment for the sums due. The Plaintiff obtained possession orders and judgment against the first Defendant, who did not appeal. The second Defendant contests the claims, asserting she was not a party to the loans or mortgage, alleging they were created without her knowledge or consent in collusion with the Plaintiff and the first Defendant.
The first proceedings relate to possession of the property, initially heard in the Circuit Court, with possession orders granted against both Defendants. The second Defendant appealed, and following a Supreme Court judgment, the matter was adjourned to plenary hearing before the High Court.
The second proceedings concern the Plaintiff's application for judgment against the Defendants for sums due under the loans. Judgment in default was entered against the first Defendant. The second Defendant's judgment proceedings were adjourned to plenary hearing and consolidated with her own proceedings.
The third proceedings are brought by the second Defendant against the Plaintiff and another associated entity, making claims that include allegations of fraud, improper conduct in the creation of the loans and mortgage, and oppressive litigation conduct causing her stress and illness.
The parties agreed to hear all three sets of proceedings together. Evidence was heard over eight days in March 2025, followed by an application to amend pleadings and legal submissions, with judgment reserved thereafter.
Legal Issues Presented
- Whether the second Defendant signed the loan offer letters and mortgage documents.
- If the second Defendant did not sign, whether she nonetheless agreed to the transaction.
- Whether the second Defendant is estopped from denying execution of the loan and mortgage documents by her conduct.
- If not bound by the transaction, whether the second Defendant is liable for money had and received (unjust enrichment).
- Whether the Plaintiff perpetrated a fraud on the second Defendant.
- Whether the Plaintiff was guilty of reckless lending and breached any duty of care toward the second Defendant.
- Whether the Plaintiff targeted the second Defendant unfairly and protected the first Defendant.
- Whether the Plaintiff's conduct in litigation gave rise to any cause of action by the second Defendant.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff contends it is the registered owner of the mortgage charge on the property and that the registration is conclusive evidence of its rights.
- It asserts that loans were advanced to the Defendants in December 2005, with default in repayment, entitling it to possession and judgment for sums due.
- The Plaintiff relies on the Bankers' Books Evidence Act 1879 to prove loan documentation and account activity, supported by witness evidence.
- It argues that the second Defendant signed the loan offers, solicitor's undertakings, and mortgage, or alternatively, is estopped from denying execution due to her representations and conduct.
- In the absence of agreement, the Plaintiff claims unjust enrichment for money had and received by the second Defendant.
- The Plaintiff denies any collusion or fraud in the loan transactions or litigation conduct.
- It argues that the second Defendant negotiated on the basis that she was liable, undermining her later denial of the loans.
- The Plaintiff opposes claims of reckless lending, citing established caselaw rejecting such tort claims.
- The Plaintiff defends its litigation conduct as appropriate and compliant with procedural rules, including service on occupants of the property.
Second Defendant's Arguments
- The second Defendant denies signing the loan offers, solicitor's undertakings, and mortgage documents, asserting forgery and lack of knowledge.
- She claims the loans and mortgage were created without her consent, alleging collusion between the first Defendant and the Plaintiff.
- She alleges identity theft, including the creation of a fictitious person in internal bank records.
- She asserts the Plaintiff engaged in improper and oppressive conduct in the litigation, causing her significant stress and illness.
- She disputes the authenticity of the signatures and denies having agreed to the loans or mortgage.
- She challenges the adequacy and existence of legal advice received in relation to the mortgage.
- She contends the Plaintiff has protected the first Defendant and unfairly targeted her in enforcement actions.
- She denies any oral agreement with the Plaintiff and disputes the basis for estoppel.
- She rejects claims of reckless lending but relies on allegations of fraud and unlawful lending practices by the Plaintiff.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Croke v Waterford Crystal Ltd [2004] IESC 97; [2005] 2 IR 383 |
Principles governing amendment of pleadings during proceedings. |
Applied to allow amendment of pleadings as a technical correction without prejudice to the Defendant. |
| DPP v Corbett [2001] ILRM 674 |
Judicial discretion in permitting amendments to pleadings to avoid technical defeat. |
Guided the court's exercise of discretion to permit amendment to allow real issues to be tried. |
| Stafford v Rice [2022] IECA 47 |
Summary of principles on amendment of pleadings during trial. |
Supported the approach to allowing amendments that do not cause undue prejudice. |
| Wildgust v Bank of Ireland [2001] ILRM 24 |
Permitting amendment after close of evidence to add claims. |
Referenced to support allowing amendment despite late stage in proceedings. |
| Moorview Developments Ltd v First Active plc [2009] 2 IR 788 |
Limitations on amendments during hearing, especially for new causes of action. |
Distinguished from the present case where amendment was technical, not a new cause. |
| R v Exall (1866) 4 F&F 922; People (DPP) v Cumberton [2020] IECA 136 |
Circumstantial evidence can establish execution of documents despite denials. |
Relied on to argue that signatures and agreement may be inferred notwithstanding denials. |
| Bank of St Petersburg v Arkhangelesky [2018] EWHC 1077 |
Finding of signature on documents despite defendant's denial based on facts. |
Used as analogy supporting inference of signature from overall evidence. |
| Promontoria (Arrow) Limited v Burke [2018] IEHC 773 |
Court's scepticism where party negotiates on one basis then later denies it. |
Applied to discount the Defendant's late denial of liability after lengthy negotiations. |
| AIB v Sloan [2019] IEHC 270 |
Loan agreement may be binding even if unsigned, by implied acceptance. |
Supported the proposition that agreement can exist without signed documents. |
| Greenwood v Martins Bank [1933] AC 51 |
Estoppel arising from conduct and silence preventing denial of forged signatures. |
Relied on to support estoppel preventing denial of execution based on representations. |
| Central London Properties Trust Ltd v High Trees House Limited [1947] 1 KB 130 |
Use of estoppel as evidential shield rather than cause of action. |
Clarified that estoppel may prevent denial of facts without being a separate cause. |
| Courtney v McCarthy [2008] 2 IR 376 |
Estoppel prevents resiling from representations even if not a cause of action. |
Applied to hold estoppel as evidential bar to denying contract execution. |
| Bank of Ireland v Murray [2019] IEHC 234; [2024] IECA 11 |
Unjust enrichment claim for money had and received where no agreement exists. |
Supported Plaintiff's alternative claim for recovery of funds advanced and received. |
| Corporation of Dublin v Building and Allied Trade Union [1996] 1 IR 468 |
Three-stage test for unjust enrichment claims. |
Applied to assess the validity of the Plaintiff's unjust enrichment claim. |
| ICS Building Society v Grant [2010] IEHC 17 |
Rejection of tort of reckless lending. |
Relied on to dismiss claims of reckless lending against the Plaintiff. |
| Everyday Finance DAC v Flood [2025] IECA 8 |
Reliance on letter confirming receipt of independent legal advice. |
Supported Plaintiff's reliance on legal advice confirmation in completing loan. |
| Guardian Builders Ltd v Kelly [1981] ILRM 127 |
Statute of Frauds satisfied where party knows or acquiesces to signature by another. |
Used to support binding effect of mortgage where Defendant knew of signature. |
| Madigan v Promontoria (Oyster) DAC [2023] IEHC 741 |
Determination of whether mortgage was signed and consequences of forgery. |
Referenced by Defendant in support of claim of forgery, but rejected by court. |
Court's Reasoning and Analysis
The court undertook a detailed assessment of the evidence, focusing on whether the second Defendant signed the loan offers and mortgage, or at least agreed to the transactions. The Plaintiff's evidence, including documentary proof and witness testimony, was largely uncontested regarding the loans, mortgage, and default. The second Defendant did not dispute the existence of the loans or mortgage but denied signing or consenting to them, alleging forgery and collusion.
The court found the evidence of key witnesses for the Plaintiff, including a solicitor who advised the second Defendant, a bank official who met with her, and others, to be credible and consistent with the documentary record. By contrast, the second Defendant's evidence was internally inconsistent, evasive, and contradicted by objective facts and other witnesses.
The court accepted that the second Defendant was fully aware of the loans and mortgage, had received independent legal advice cautioning against the transaction, but nonetheless took positive steps to facilitate it, including procuring a letter confirming legal advice and accepting a substantial loan payment. The court found it implausible that the second Defendant was unaware of the transaction or that the documents were executed without her knowledge.
Although the signatures on key documents were not witnessed as stated, and the second Defendant denied signing, the court concluded on the balance of probabilities that she did sign the loan offers, solicitor's undertakings, and mortgage, or at least acquiesced in the signing by the first Defendant. The court held that the second Defendant is estopped from denying execution due to her conduct and representations.
In the alternative, even if she did not sign or agree, the second Defendant was liable for unjust enrichment for monies received and used to discharge prior mortgages and for her benefit.
The court rejected the second Defendant's claims of fraud, identity theft, reckless lending, and breach of duty by the Plaintiff, finding no credible evidence to support those allegations. The Plaintiff's conduct in litigation was found to be proper and justified, with no basis for claims of oppressive or unfair treatment.
The court also noted that the second Defendant had obstructed enforcement against the first Defendant's unencumbered assets by obtaining a caution, and that the couple appeared to cooperate to frustrate the Plaintiff's recovery efforts.
Holding and Implications
The court's final decision is as follows:
The Plaintiff is entitled to an order for possession of the property and judgment against the second Defendant in the sum claimed.
The court dismissed all claims made by the second Defendant against the Plaintiff, including allegations of fraud, reckless lending, breach of duty, and improper conduct in litigation.
The second Defendant is bound by the loan agreements and mortgage, having either signed or been estopped from denying them, and is liable for the amounts due. Alternatively, she is liable for unjust enrichment for monies received.
The court acknowledged the extended history and difficulty of the proceedings, including the vulnerable status of the Defendants' adult children residing in the property, and indicated it would hear submissions regarding any stay on possession or judgment orders.
No new legal precedent was established; the decision applies established principles of contract, estoppel, and unjust enrichment to the facts.