Two Supreme Court judges would have allowed Brian Murray’s appeal against a ruling requiring him to make restitution to Bank of Ireland Mortgage Bank over a roughly €200,000 loan taken out in 2007 using documents bearing his forged signature.
The joint judgment of Mr Justice Seamus Woulfe and Mr Justice Gerard Hogan was a dissent from the court’s majority. The majority, as described in their judgment, concluded that Mr Murray was obliged to make restitution to the bank.
The loan was ostensibly secured on the Murrays’ family home and intended to finance an investment property. Funds were drawn down between 2007 and 2009 and transferred to an account controlled by the Murrays. They were used for purposes including tax liabilities, a fishermen’s pension scheme payment and the purchase of a field. No investment property was built.
The High Court had found that Mr Murray did not sign the mortgage documentation. His signature had been forged, including on a marital-status confirmation document. A bank manager nevertheless purported to witness that signature.
The dissenting judges considered that conduct critical. They concluded that the bank official had made a false representation which helped cause the loan to be granted, making the bank a participant in the wider wrongful conduct rather than merely its victim.
They also disagreed with the majority’s approach to the Consumer Credit Act 1995. In their view, treating Mr Murray as outside its protections because he had never signed the loan would leave a fraud victim worse protected than an ordinary borrower and undermine the statute’s consumer safeguards.
A third ground concerned change of position. Mr Murray had received direct or indirect benefit from much of the money and spent it years before discovering the loan in late 2011 and the mortgage in 2012.
For those reasons, the two judges concluded that the bank should be barred from restitution and that Mr Murray’s appeal should have been allowed. That was not the majority outcome of the Supreme Court.