The High Court has refused an application by Irish Life and Permanent plc and two of its employees to strike out claims brought by Thomas and Alison Beausang, allowing the claims to proceed to a full hearing.
In a judgment delivered on 13 January 2014, Mr Justice Hogan stressed that the application concerned whether the claims were legally sustainable, not whether the allegations were true. The defendants had not yet filed a defence, and the court assessed the claims on the assumption that the pleaded facts could be proved.
The Beausangs alleged that contracts were arranged in 2007 for the sale of five houses at Ardnahinch Bay, Shanagarry, as a condition of a loan from ACC Bank. They claimed the contracts were not returned as binding agreements, and that the first plaintiff was not told who the proposed buyers were or that signing and returning the contracts would make them enforceable.
The plaintiffs further alleged that, after the housing market fell, some proposed purchasers faced potential liabilities under the contracts. They said a later loan from Irish Life and Permanent, obtained in May 2008, was encouraged as a way to help those purchasers and their solicitor avoid those liabilities. The judgment records that the contracts were never executed and the plaintiffs retained control of the properties, which they were letting.
The plaintiffs claimed deceit and conspiracy against bank employees and sought to hold the bank vicariously liable. They also pursued claims against the solicitor, including for breach of contract and fiduciary duty. The solicitor did not take part in the strike-out application.
Justice Hogan said the deceit claim raised a difficult question about when silence by someone who is not a fiduciary can amount to deceit. He considered that the issue required a full hearing. The conspiracy claim depended in part on the defendants’ motives, which he said could not fairly be resolved on the application.
The court also declined to strike out the vicarious-liability claim against the bank. If the alleged torts were established, the relationship between the bank employees’ work processing the loan and the alleged conduct could not be ruled out at this stage as too remote.
The plaintiffs also sought rescission of the Irish Life and Permanent loan agreement. The judge noted that they had accepted and used the loan of about €1.32 million, and that they waited nearly four years after the alleged conspiracy to bring proceedings. He said the rescission claim appeared prima facie vulnerable to delay and acquiescence, but declined to strike it out because equitable fraud might be established.
The ruling did not decide whether any defendant was liable, whether the allegations were true, or whether the loan should ultimately be rescinded. It refused the first three defendants’ application to strike out the claims.