The High Court has entered judgment for Cave Projects against John Kelly for €11,407,826.09 following a plenary hearing over loans made to a five-person property partnership. The court also awarded the plaintiff its costs, to be adjudicated if the parties cannot agree.
The judgment, delivered by Ms Justice Miriam O’Regan on 21 December 2022, concerned a claim originally brought by Bank of Ireland in 2011. Cave Projects was substituted as plaintiff in 2013. The other four defendants left the case through settlements or discontinuance, leaving Kelly as the sole defendant at trial.
The dispute arose from a series of partnership agreements beginning in 2003 and borrowing secured from Bank of Ireland. The latest relevant facility signed by Kelly was dated 5 September 2007 and provided for a €600,000 increase in funding. The judge found that the facility made the partners jointly and severally liable. Kelly accepted in cross-examination that he signed the facility, that funds were drawn down, that payments were in default and that the amount in the bank’s January 2011 demand was correct. He had not replied to that demand.
Kelly disputed Cave Projects’ entitlement to pursue him after settlements with three partners and argued that the settlements should reduce or release his liability. During the trial, his counsel sought to amend the defence to add a claim that the settlements released him. The judge refused the late application. She said the letters relied on were proposals addressed to Soft Drive Limited, were not signed by Cave Projects and did not bind it. She also found that Kelly’s obligation to the bank was as a borrower, not as a surety for his partners.
The judge accepted evidence that NAMA’s loan sale to Cave Projects completed on 22 January 2013, despite a 2012 date appearing on a transfer document. She also found that the claimed balance had been reduced to account for €309,831 received from three defendants and €56,153 in rent from secured property. She held that possible future recovery from secured assets did not prevent judgment for the balance due from Kelly.
Several pleaded allegations, including mistake, rescission and breach of contract, were not supported by evidence or submissions at trial, the judge said. She also rejected Kelly’s challenge to the bank evidence, accepting testimony based on a contemporaneous affidavit and records. The operative order states €11,407,826.09, one cent less than the €11,407,826.90 figure stated in the judgment’s earlier discussion of the claim.