Trustees acting on behalf of 13 members of family-operated haulage firm Nolan Transport have failed to persuade the Court of Appeal that a High Court judge was wrong to treat some of their witnesses as unreliable.
In a judgment on Thursday, Ms Justice Niamh Hyland said she and her colleagues were satisfied the High Court judge had applied the correct standard of proof to the claims and was entitled to decide as he did on the evidence.
She dismissed all grounds of appeal advanced by trustees of Oaklands Property Funds pension trust, which was established for the benefit of 13 Nolan family members.
The trustees – Ann, Elizabeth, Joan, Richard, Patricia and Sally Nolan – along with Quest Capital Trustees Ltd issued their High Court proceedings some years ago claiming their former solicitor and a former legal adviser misappropriated nearly €7 million of their pension funds after it had been internationally transferred, on their instructions, from an Irish bank account.
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A week into the hearing of their High Court case, in May 2022, their former solicitor Ciaran Desmond, formerly of McGuire Desmond Solicitors in Cork, consented to a judgment of €6.9 million against him for “negligence, breach of contract and breach of fiduciary duty” in the context of controlling a company into which pension money was placed.
Their action continued against other defendants who all denied their claims.
Last January, the High Court’s Mr Justice Denis McDonald dismissed nearly all of the trustees’ claims against their former financial adviser John Millet, of Dublin-based John Millett Independent Financial Advisors, and two of Mr Millett’s companies.
Finding there was an unauthorised disclosure of personal data, the judge directed Mr Millet and his companies to pay €500 to each of the personal plaintiffs as “nominal damages”.
He dismissed all of the trustees’ allegations made against three other men – Paul Kenny, his son Dillon Kenny and nephew Darren Kenny – who claim to be the beneficial owners of the former Nemo Rangers development land in Cork.
Mr Justice McDonald discharged a 2017 order that had restrained the Kennys’ Isle of Man-registered company from taking any steps to dispose of the Nemo Rangers property.
He also directed that some €1.6 million that remained from an investment scheme could be paid out to the trustees and to any other party that establishes an entitlement to a share.
The central allegation in the trustees’ case was that pension money was in 2013 deployed, through an elaborate scheme, as collateral to finance the purchase of investment products to be issued by third parties in Singapore. They claimed the bulk of their money was misappropriated, while about €2.8 million was used without their knowledge to buy the Nemo Rangers property.
Mr Justice McDonald found the Nolan trustees promoted an untrue story about the instability of Irish banks to “mask their true intention” of attempting to use family pension funds to settle personal debts.
He held that some of the trustees’ evidence was “unreliable and untrue”, and there were significant issues about the credibility of some of the evidence of Richard and Patricia Nolan.
He described as “utterly implausible” their original explanation that funds were transferred overseas due to concerns about the stability of Irish banks.
In the trustees’ appeal to the Court of Appeal, they claimed Mr Justice McDonald was wrong to treat Richard and Patricia Nolan as unreliable witnesses and to have found they were prepared to engage in deliberate falsehood. He also incorrectly determined that the trustees’ intention in transferring their pension money was anything other than in accordance with their evidence, the trustees claimed.
The Court of Appeal’s Ms Justice Hyland concluded that there was sufficient evidence before the High Court to justify Mr Justice McDonald concluding that the trustees knew the money transferred would not be within their control and/or was being invested.
She was also satisfied he, having made findings in relation to some untruths, was entitled to disbelieve Richard and Patricia on general credibility grounds where the evidence was not controverted.
She also dismissed the trustees’ ground of appeal claiming the High Court should have drawn adverse inferences from a lack of controverting evidence to certain of their points.
Ms Justice Hyland said the High Court found there was “no prima facie case”. The burden of proof rests with the plaintiffs, and the Millet side was entitled not to give evidence, she said.
With the support of her colleagues Mr Justice Senan Allen and Ms Justice Nuala Butler, she dismissed all grounds of appeal.
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