The High Court has ordered solicitor Gerald Kean to notify Permanent TSB (PTSB) that he was not entitled to give it title deeds for two properties, and to take steps to retrieve them and return them to EBS Limited within 21 days of the order being perfected.
The court also ordered Mr Kean to pay 90% of EBS’s legal costs, including reserved costs, with the amount to be taxed if the parties cannot agree. That part of the order is stayed pending Mr Kean’s appeal and its determination. The court refused to stay the title-deed orders.
The orders were made after a post-judgment hearing on costs and other matters on 26 and 30 May 2017. In an earlier judgment, the court had found that Mr Kean failed to honour an undertaking to return the deeds and made a false statement in a solicitor’s letter that proceedings had been instituted against EBS. It had not found him guilty of misconduct under the Solicitors Acts, saying that it lacked jurisdiction to make that finding at first instance. The court said a misconduct finding was a matter for the Solicitors’ Disciplinary Tribunal.
Mr Kean argued that the absence of a misconduct finding meant there should be no costs order. The court rejected that position, saying the main issue was whether he should have returned the title deeds, and he had lost that issue. It treated the misconduct question as ancillary, but said the way EBS presented its case had led both the court and Mr Kean’s counsel to understand that a misconduct finding was being sought. The court estimated that no more than 5% of the hearing concerned that question and reduced EBS’s overall costs award by 10%.
In considering a stay, the court accepted that Mr Kean’s proposed appeal was bona fide and that a point about when a letter was received was arguable, while disagreeing with his contention about the evidence. It stayed the costs order because requiring immediate payment of a likely six-figure sum could cause hardship if he later won his appeal.
The court refused to stay the deed-retrieval order. It considered the risk to EBS from delaying enforcement of its security while loan arrears continued to mount, and noted EBS’s undertaking to hold any proceeds from a sale of the two properties pending the appeal and any related order. The court said refusing a stay did not risk injustice to Mr Kean or PTSB, noting EBS held first legal charges over the properties and PTSB second charges.