The Court of Appeal has dismissed Anthony and Anne Elliott’s appeal against the dismissal of their claims against an accountant and a solicitor over finance arranged for a Waterford mini-market.
In a judgment delivered on 13 October 2020, Ms Justice Faherty, with whom Costello and Power JJ agreed, upheld the High Court’s decision that the claims were statute-barred. The appeal concerned the High Court order of 30 November 2017, which dismissed the claims against the second and third defendants and awarded them costs. The claim against the bank had previously been struck out.
The couple bought a mini-market at 59 Griffith Place in 2002. Their borrowing included a €222,335 loan and a Friends First Home Savings Plan with a sum assured of €222,000. In 2004, the bank advanced €388,000 to repay earlier loans and fund improvements. The facility was secured by a mortgage over the shop premises and assignments of endowment policies and life cover.
The couple alleged that professional advice led them into a financial arrangement unsuitable for their needs. Their pleadings described receiving a home savings plan instead of an endowment policy. At the limitation hearing, Anthony Elliott’s evidence was that he had wanted a simple loan and had not understood the investment risks. The High Court found that, whether the claim was considered as pleaded or as he described it in evidence, the alleged loss arose when the arrangement was entered into in 2002 or, at the latest, when it was restructured in 2004. Proceedings began in 2013, outside the six-year period.
The Court of Appeal rejected the argument that the loss arose only when the policy was cashed out in 2011. It said the core of the claim was that the couple received a financial product different from the one they said they wanted. The court also upheld the High Court’s decision to determine limitation as a preliminary issue after hearing oral evidence, and found no basis to overturn the refusal of discovery sought, in part, to investigate an unpleaded allegation of fraud.
The appeal court acknowledged one factual error: the High Court had referred to the couple’s family home as security, when the shop premises were the required security for the bank’s loan. It held that the mistake did not affect the limitation decision. It also said the High Court should not have decided whether a prima facie negligence case had been made against the solicitor during a hearing designated for limitation; those comments were obiter and did not warrant sending the case back because the claim was time-barred.
The appeal was dismissed. The accountant and solicitor were provisionally treated as entirely successful for costs. The couple had 14 days to make written submissions on whether a different costs order should be made, followed by 14 days for the defendants to reply. In default, the proposed costs order would be made.