The Court of Appeal has dismissed two appeals by property developer Patrick O’Connor in a dispute with Bank of Scotland plc and others, leaving in place a High Court judgment for €7,683,999.96 in the bank’s favour.
In a judgment delivered on 10 February 2017, the court said the appeal against the bank’s judgment would fail if Mr O’Connor lost his separate appeal against the refusal of his claims. It dismissed that second appeal and said any lis pendens remaining over lands forming part of the bank’s security should be vacated.
The dispute arose from loans used to fund developments at Lindville, Ashley and Five Firs. Mr O’Connor argued, among other things, that the bank’s 2002 security over Lindville was not meant to include the development’s common areas. The High Court found that the mortgage covered those areas and that Mr O’Connor knew this. The Court of Appeal declined to disturb that finding, holding that evidence accepted by the trial judge supported it.
The appeals also concerned Mr O’Connor’s claims that the bank promised in March 2010 to fund the Ashley development through completion if he provided additional security, and that it had promised €100,000 for a showhouse. The Court of Appeal upheld the High Court’s findings that neither alleged promise had been established. It also upheld the rejection of claims that the 2010 refinancing of earlier loans involved deceit or undue influence. The court noted that the 2008 facility’s further construction funding was subject to a presale condition that had not been met.
Mr O’Connor’s claims against the receivers included alleged conflicts of interest, inadequate maintenance of assets and allowing planning permission for two Five Firs houses to lapse. The Court of Appeal upheld the trial judge’s conclusions that the receivers had taken reasonable steps to protect the properties and had acted on professional advice when planning permission was allowed to lapse.
The court also upheld the rejection of negligence and conflict claims against solicitors who acted for Mr O’Connor and, in some transactions, the bank. It said the solicitors should have advised the parties about the desirability of separate representation under the professional guidance then applicable. However, the court found that no actual conflict had materialised and that Mr O’Connor had not established resulting loss.
Finally, the court agreed that the loans were taken out in the course of Mr O’Connor’s property development business, so he did not qualify as a consumer for the protections he invoked under the Consumer Credit Act 1995 and the Consumer Protection Code 2006.