A barrister had engaged in “an act of self-sabotage” as an artifice designed to create difficulty for a bank in enforcing its security over a property on which a loan of some €2 million is now owed, the Court of Appeal (CoA) said.
Mr Justice Seamus Noonan said barrister Donal Keane and his solicitor wife Frederique Keane failed to demonstrate any error in a High Court judgment which found they had attempted “to confound and frustrate the debt collection proceedings” brought against them by a financial institution.
He made the comments in a judgment on an appeal against the High Court’s dismissal of proceedings the couple brought against Ulster Bank DAC alleging certain failures and actions on the bank’s part in relation to their home and 147 acre farm at Camelton Stud, near Summerhill, Co Meath.
The bank successfully applied to the High Court to dismiss their case as showing no reasonable cause, were frivolous, vexatious and/or bound to fail.
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Mr Justice Noonan, on behalf of the three-judge CoA, said that in 2006 and 2007, the Keanes borrowed a total of €1.7 million from Ulster Bank with security by way of a mortgage and charge on Camelton.
From December 2010 onwards, the loans went into default. Negotiations took place to try to resolve matters but proved unsuccessful and the debt now stands at €2 million.
In 2012, the Keanes said they became aware of a title issue with Camelton which became a central issue of dispute with the bank.
The judge said the title deeds for Camelton comprise two separate listings, or folios, with most of the property in one folio.
However, the other folio for some 2.8 hectares covers 60-100 metres of the entrance driveway to Camelton. The Keanes got the opinion of senior counsel who advised that this meant the couple did not hold good marketable title to Camelton, the judge said.
As a result of this the Keanes asserted Camelton was unsaleable and has a zero valuation, he said.
At the time they got the Ulster Bank loans, the bank was provided with a certificate of title for Camelton which “did not advert to any issues” concerning the entrance driveway or rights of way, the judge said.
The Keanes bought Camelton from Donal’s parents for IR£350,000 in 1996.
The judge said the Keane parents were fully aware that part of the driveway entrance was not included in the main property title deed.
He said this was clear from a number of statutory declarations which the Keane parents included in the deed stating they and previous owners had exclusive use of the entrance. It also stated none of the owners, at any time, acknowledged the right or interest of any party to this part of the property.
Donal Keane’s mother swore an affidavit in 2012 stating when the house and farm were transferred to Donal and his wife the couple were “fully aware of the situation” regarding access.
She also said she was shocked at a claim by Donal that he had been told by his parents that the access was by the express permission of an adjoining landowner.
To suggest that her late husband, who was himself an experienced conveyancing solicitor, would have bought Camelton in 1975 and then “gone cap in hand to a neighbour” for permission to access the purchased property was “a most grievous insult” to her husband’s memory and reputation, she said.
Mr Justice Noonan said it was perhaps surprising, given that Donal and Frederique Keane are themselves experienced lawyers, that they appear to have known nothing of these important statutory declarations as to title when they instructed senior counsel to give an opinion on title.
At a minimum one would expect a person seeking counsel’s opinion would first obtain copies of the title documents from their own solicitor, he said.
It was difficult to understand Donal Keane’s motivation in drawing a verbal exchange with his father to the attention of Ulster Bank which had the effect of undermining the title to his own property when the documents appear to indicate that the title was sound, he said.
“The only plausible explanation for such an act of self-sabotage is that it was an artifice designed to create difficulty for the bank in enforcing its security,” he said.
This impression is fortified by “the remarkable fact” that 12 years since being allegedly alerted to the title defect, the couple had done nothing to try to address it, he said.
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