The High Court has refused an application by Noel Tynan and Brian Moloney to strike out third-party proceedings brought by Andrew Sheehy in a dispute involving Promontoria (Aran) Limited. Mr Justice Max Barrett said the related claims should continue so the outstanding issues could be heard together. He reserved the costs of the motion for a further hearing.
The application, made by notice of motion dated 28 February 2024, sought to set aside the third-party proceedings and other relief. The proceedings arise from a 2005 €3 million loan from Ulster Bank secured on lands in Portarlington, and later disputes involving a commercial property in Bucharest.
In separate proceedings begun by Noel Moloney in 2009, he sued Mr Sheehy for recovery of about €255,000. Mr Sheehy later counterclaimed, seeking relief concerning the loan debt and repayment of money. Those proceedings were settled in June 2017, but the issue of costs remains outstanding. The judgment says the 2009 proceedings are not fully settled and further discovery may be required.
Promontoria, which had replaced Ulster Bank, began separate proceedings against Mr Sheehy in July 2018, seeking more than €4 million. Tynan and Moloney were joined as third parties. Promontoria and Mr Sheehy later settled their dispute on the basis that the action between them would be struck out with no order as to costs. Mr Sheehy opposed the third parties’ offer to discontinue their claims with each side bearing its own costs.
Mr Sheehy argued, among other things, that Tynan and Moloney were jointly and severally liable for the debt claimed against him and that he could recover his legal costs from them. Those remain his claims, not findings by the court. Justice Barrett accepted that the law of indemnity could allow a defendant to claim the costs of defending a creditor’s action as damages from an indemnitor. He said he did not see those costs as reclaimable in another set of proceedings.
The judge also found an arguable case that Mr Sheehy and the third parties were concurrent wrongdoers in relation to Promontoria, applying the standard for third-party claims discussed in IBRC v Purcell. He concluded that Promontoria’s settlement with Mr Sheehy did not resolve all issues in the proceedings.
Justice Barrett refused all relief sought in the motion. The decision did not determine the underlying claims or the unresolved costs issue in the 2009 proceedings. He said he would hear the parties on the costs of the motion.