The Court of Appeal has allowed Dillon and Darren Kenny to join proceedings over the beneficial ownership of lands in Cork, so they can defend against the Nolan family’s claim and pursue their own claim by counterclaim. The court did not decide who owns the lands.
In a judgment delivered on 31 October 2018, Mr Justice Michael Peart said the Kennys had shown an arguable case for joining the proceedings. He said the source of the money used to buy the lands was an issue for trial and that the Kennys had a direct interest in the ownership dispute.
The proceedings concern lands described in the judgment as the “Nemo lands”, registered in the name of Dildar Limited, a company incorporated in the Isle of Man to acquire them. The Nolans claim that pension fund money held by Oaklands Property Trust funded the purchase and seek, among other relief, a declaration that Dildar holds its interest in the lands on trust for them.
The Kennys say they are the beneficial owners of Dildar and that Kenny family funds paid for the lands. They sought to join the case after the company’s administrator indicated it would take a neutral position on ownership. They argued that otherwise no party would oppose the Nolans’ claim.
The Nolans pointed to earlier statements attributed to Paul Kenny and John Millett about ownership and the source of funds, and argued that the Kennys should explain apparent contradictions and provide evidence supporting their claim before being joined. Justice Peart said that would go too far into the merits at this interlocutory stage. He said the Kennys had shown a rationally based case beyond mere assertion, while noting that prior statements could create difficulties to be addressed through evidence and cross-examination at trial.
The High Court had refused the joinder application, reasoning that adding the Kennys as defendants would give them a procedural advantage because they would not bear the burden of proof. The Court of Appeal disagreed: if the Kennys advance their ownership claim by counterclaim, they will have to prove it.
The Kennys had also begun separate proceedings against the Nolans. The Court of Appeal held that this did not make the appeal moot, and that joining the Kennys to the existing case would avoid the duplication and procedural burden of completing and consolidating separate proceedings.
The appeal was allowed. The court ordered the Kennys joined as defendants and directed that a defence and counterclaim be delivered within 21 days. It left further directions, and the ownership question, for later proceedings.