The Court of Appeal has upheld decisions striking out June Smith’s proceedings against a receiver, ACC Loan Management Ltd, her former solicitors and the Law Society of Ireland. The court dismissed her appeals, concluding that the claims against the receiver, ACC and the solicitors could not be re-litigated in this case, while the claim against the Law Society had no reasonable prospect of success.
The proceedings, begun in May 2016, followed earlier litigation over loans advanced to Ms Smith and her husband, James Smith. In 2007, ACC offered the couple facilities of €1.296 million and €800,000. Their solicitor, Michael Collins, had confirmed to ACC that contracts to sell other land for €1 million were in place. Ms Smith later said she had not instructed him to send that confirmation.
In February 2012, the High Court entered judgment against the couple for €1.933 million, jointly and severally. It had considered Ms Smith’s affidavit raising the contracts issue but found no arguable defence. That judgment was not appealed. ACC appointed Shane McCarthy as receiver over lands charged under the loan arrangements in March 2014. In later injunction proceedings, the High Court granted a permanent injunction restraining the Smiths from trespassing on the lands.
The Court of Appeal agreed that the current claims against ACC and the receiver were abusive because they sought to reopen the unauthorised-letter issue after the 2012 ruling. It also rejected Ms Smith’s undue-influence argument against her husband, stating that a generalised plea was insufficient where she had been a principal borrower.
The court dismissed the appeal concerning Collins and his firm, finding that the claim based on the letter was another attempt to challenge the earlier ruling. It also said Ms Smith’s drawdown of the funds amounted to tacit acceptance that her solicitor had supplied the certification required by the loan offer.
Ms Smith alleged that the Law Society had failed to monitor Collins or police his correspondence with ACC. The Court of Appeal held that the Society owed no general duty of care of the kind alleged and that the claim, as formulated, was bound to fail. It left open whether a regulator could ever be liable in negligence for failing to act against a particular solicitor, saying any such case would require exceptional facts.
The Court of Appeal affirmed the High Court decisions striking out the proceedings against the first, second, third and fifth defendants. This was an appeal about whether the claims could proceed; the judgment did not determine a new damages award.