The Court of Appeal has rejected an appeal by trustees of the Oaklands Property Trust (OPT) over the dismissal of most of their €6.9 million claim against financial and trustee respondents. The court upheld the trial judge’s decisions to exclude two documents and to reject key evidence from Richard and Patricia Nolan. The appeal did not concern the separate directions for determining who was entitled to money paid into court.
The trustees alleged that €6.9 million from the pension fund was misappropriated after transfers in 2013 through companies in Dubai and Switzerland. Their claims against the respondents included allegations of deceit, misrepresentation and breach of duty. Those were allegations, not findings against the Millett respondents. The High Court had dismissed the claims against them, except for a personal-data claim on which John Millett was ordered to pay €500 in nominal damages to each personal appellant. That award was not challenged on appeal.
The Court of Appeal upheld the refusal to admit a pledge document and a $100 million loan agreement under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. The documents had been provided through discovery, so the respondents were not required to give advance notice of an objection under the Act. The appeal court also found no basis to overturn the trial judge’s discretionary decision that admitting the documents without witnesses available for questioning would be unfair. It noted that the trustees had not called Ciaran Desmond, who had settled his part of the case during the trial, or an EFG Bank witness to prove the documents.
The court also refused to disturb the trial judge’s finding that the Nolans had not been truthful about their understanding of how the pension money would be held and controlled. The trial judge had relied on the route through MECD and CVSSA, investment documents and the witnesses’ evidence. The appeal court said there was credible evidence supporting that assessment and that the trial judge could consider the witnesses’ wider credibility when assessing other parts of their evidence.
The trustees argued that the absence of evidence from John Millett should have supported their case. The appeal court held that the trial judge was not required to draw adverse inferences: he had found the trustees had not established a prima facie case, and the burden of proof remained with them. It also rejected an argument, raised only in oral submissions, that the trial judge applied a standard higher than the balance of probabilities.
The appeal was rejected on all grounds. The respondents were presumptively entitled to their appeal costs. The court allowed the appellants until 13 January 2025 to file submissions seeking a different costs order, with the respondents then given 14 days to reply.