The High Court has found that Elaine Madigan did not sign a mortgage over her family’s Curracloe home and that her signature on the 2004 mortgage was forged. It ordered the register rectified and awarded her €53,000 in damages, including €10,000 in exemplary damages.
Mr Justice Heslin delivered the judgment on 19 December 2023 after a de novo hearing of an appeal from a Circuit Court decision. The central issue was whether Ms Madigan had signed the mortgage. Promontoria (Oyster) Designated Activity Company and receiver Tom O’Brien defended the case on the basis that she had signed it in solicitor Eamon Keenan’s presence.
The judge accepted Ms Madigan’s evidence that the signature was not hers. He also relied on handwriting expert Dave Madden’s uncontroverted opinion. After examining the original mortgage, Madden said he had eliminated Ms Madigan as the author of the signature. The judge found that she had not attended a meeting at Mr Keenan’s office on 15 March 2004, and that the disputed signatures on four documents were not hers. The judgment said the identity of whoever forged them, and when or where they did so, could not safely be determined.
Mr Keenan testified that Ms Madigan signed the documents before him, but said he had no memory of the meeting and relied on his interpretation of file records. The judge found him sincere but mistaken. The judgment also criticised the wording of an affidavit Mr Keenan swore in 2021, which did not clearly set out the circumstances in which the mortgage and family home declaration had been signed and witnessed.
The court held that the mortgage was a fraudulent instrument and directed rectification of the register. It rejected the defendants’ reliance in submissions on the register’s conclusiveness, noting that a defence based on being a purchaser for value without notice had not been pleaded.
The damages award covered 43 months, from October 2019 until Ms Madigan regained possession at the end of May 2023. The judge assessed €43,000 for loss of use of the property and its deterioration while the defendants were responsible for its maintenance, and added €10,000 exemplary damages. A claim for slander of title was not decided because it had received little attention at the hearing. The parties were invited to submit an agreed draft order within 14 days of the start of Hilary Term 2024; any disagreement, including about costs, was to be addressed in written submissions.