The Court of Appeal has dismissed a solicitor firm’s appeal against a decision allowing Margaret Hosey’s claim to proceed over a disputed mortgage liability secured on her home. The court did not decide the merits of her allegations or whether she is liable for the loan.
The appeal by Brendan Weldon practising as Weldon & Co. concerned a High Court refusal to strike out Mrs Hosey’s claim. She alleges that the firm acted without her authority in 2008 when it arranged for First Active, now Ulster Bank Ireland Limited, to reactivate a loan and secure it against the Brooklawns property. She claims negligence, breach of duty and breach of fiduciary duty, among other relief.
The dispute has its origins in a €152,000 loan taken out jointly by Mrs Hosey and her husband in 2002. The loan account, numbered 9401, was intended to be secured by a mortgage over Brooklawns. In 2004, a payment of €145,402 was applied to that account. Mr Weldon later told the bank that the wrong account had been redeemed and sought to reverse the transaction. Mrs Hosey disputes that there was an error: she says she and her husband had agreed that he would repay the Brooklawns loan so she could live there without a mortgage.
Mrs Hosey says she did not authorise or know about the 2008 dealings. The Court of Appeal noted that the bank’s correspondence referred to Mr Weldon’s clients as both Mr and Mrs Hosey, although he was then acting for her husband. A new account, numbered 9403, was set up in 2008. The judgment records a claimed liability of €114,113.52 as of 1 December that year. Ulster Bank later began Circuit Court proceedings seeking possession of Brooklawns, alleging that the couple had failed to meet a demand for €137,904.17.
The appeal court said the amended statement of claim set out causes of action that could not be struck out under Order 19, rule 28. That type of application is assessed by reference to the pleading. Separately, the court upheld the High Court’s refusal to dismiss the claim as bound to fail, a decision that required consideration of the affidavit evidence and the assumption that Mrs Hosey’s account could be proved.
The court said the disputed 2004 agreement, the circumstances of the later dealings and the possibility of relevant documents emerging through discovery meant the claim could not be resolved at this stage. It stressed that the claim’s success remained uncertain and depended on proof at a full hearing. The appeal was dismissed; the Court of Appeal did not determine liability, damages or the possession proceedings.