Suspended solicitor Declan O’Callaghan is advancing a “wholly false” narrative that two businessmen who signed a Co Mayo €250,000 land transfer deal knew that sum was never to be paid to a company of one of them, the High Court has been told.
That narrative is that the 2006 deal for transfer of the lands owned by Nirvanna Holdings, a company of businessman Tom Fleming, to a now deceased businessman, Fred Preston, was “a business venture that simply went wrong”, barrister Ruadhán Ó Ciaráin said.
He was making submissions for Mr Fleming on Wednesday at the outset of an appeal by Mr O’Callaghan against four counts of professional misconduct found against him last year by the Solicitors Disciplinary Tribunal arising from his handling of the deal.
The three-member tribunal recommended Mr O’Callaghan be struck off the roll of solicitors. A strike-off application by the Law Society to the High Court is on hold pending the outcome of Mr O’Callaghan’s appeal.
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He has been suspended since 2018 arising from a separate Law Society investigation into matters at his now defunct practice Kilrane O’Callaghan & Co, which was based in Ballaghaderreen, Co Roscommon.
Concerns raised in an independent solicitor’s report included that he withdrew substantial fees from the estate of a bereaved child.
On Wednesday, barrister Michael Mullooly, for Mr O’Callaghan, said he would be calling three witnesses in the appeal: Mr O’Callaghan; Niamh Creighton, a solicitor in Mr O’Callaghan’s office in 2006; and another solicitor who acted for Mr Preston in various matters.
Mr Ó Ciaráin said Mr Fleming was his only witness and asked Mr Justice Micheál O’Higgins to keep “three facts” in mind throughout the hearing.
These are that a deed for transfer of land for €250,000 was entered into, the land did transfer and Nirvanna never got the €250,000, he said.
The appeal, he said, would involve Mr O’Callaghan’s side “trying to distract you from those three facts”, which gave rise to breaches of a solicitor’s duties. The breaches are a failure to ensure consideration for a transaction was on account before effecting the land transfer; failure, by acting for vendor and purchaser, to avoid conflict of interest; and failure to advise shareholders of Nirvanna separately regarding the conveyance and to get their own advice, he said.
Mr O’Callaghan’s side would take “one particular true fact” – that Mr Fleming retained a share in a company called Western Concrete – and “weave that into a narrative that is wholly false, that it was simply a business venture gone wrong”, he said.
In direct evidence, Mr Fleming (now aged 81) said he left school at 13, is dyslexic, can read but cannot write. After suffering a heart attack in 2005 he decided to step away from some of his work and business involvement and believed he ceased any involvement with Western Concrete in 2005.
In cross-examination, he agreed his case is that the Co Mayo land was to be sold by Nirvanna to Fred Preston for €250,000 and Nirvanna never got the money.
Mr Mullooly said Mr O’Callaghan would say his law firm was acting for Western Concrete regarding the deal, which arose in the context of a joint agreement between Mr Fleming and Mr Preston.
Mr Fleming described as “totally wrong” a suggestion he and Mr Preston instructed Mr O’Callaghan that they were putting together a joint venture and the Nirvanna lands were required as security for a bank’s loan offer.
He did not know he was still a shareholder in Western Concrete in 2006, he said. He ceased being a director of that company in 2005 and was unaware he still retained one share in 2006. Mr Preston, the court heard, held the other share.
Ms Creighton phoned him in his car on November 20th, 2006, to say would need to get another solicitor in relation to the land transfer deal and, shortly after her call, Mr O’Callaghan phoned him to say he would not need another solicitor, that Mr O’Callaghan would take care of it, he said.
When told Ms Creighton and Mr O’Callaghan both disputed saying what he alleged, he stood over his evidence.
He disagreed with Mr Mullooly his account of the deal was “so inconsistent” it was hard to conclude Mr O’Callaghan’s account of events was not accurate.
The appeal continues on Thursday.
