Philip Lynch loses Supreme Court bidThursday 30 January 2014 17.03
The Supreme Court has described as "understated" a finding that businessman Philip Lynch gave "hopelessly confused and unreliable" evidence concerning the circumstances leading to a €25m loan being issued to buy development lands in Co Waterford.
Mr Justice Donal O'Donnell made the comment when dismissing Mr Lynch's appeal aimed at stopping Allied Irish Banks pursuing him to pay a €26m judgment obtained in 2011, with continuing interest.
It came after his failure to repay the loan made to him, his family and developer Gerry Conlan to buy the 86 acres at Kilbarry, valued in 2011 at less than €5m.
However, the three-judge court allowed the appeal of Mr Lynch's wife Eileen and four adult children, Judith, Paul, Philippa and Therese, to the extent of finding they are entitled to trial of an issue whether the bank is entitled to pursue them for the €26m judgment.
All of the Lynchs previously argued enforcement of the judgment would have potentially "catastrophic" consequences.
Giving the Supreme Court judgment, Mr Justice O'Donnell said the development deal appeared very attractive in 2007 as it was estimated to quickly produce about €20m profit for the Lynchs with apparently no risk attached.
Before there could be any real risk, there would have to be a total collapse in Irish property values and a "dramatic and total destruction" of the wealth of Mr Lynch and Mr Conlan.
It had seemed unlikely that would occur. "We now know better," the judge said.
The judge said the High Court finding Mr Lynch gave "hopelessly confused and unreliable" evidence he would not have gone ahead with the deal unless the loan was non-recourse appeared "amply justified and, if anything, understated".
Looked at realistically, the Lynchs' claim against AIB, particularly Philip Lynch's, always had a remote prospect of success given the terms of the loan documents, he found.
The real claim of the Lynchs, if their evidence was accepted, was against those whom they alleged had failed to properly advise them, or had advised them wrongly, he said.
He disagreed with the High Court that the LK Shields law firm owed no duty of care to the Lynchs when advising as to the nature of the €25m loan facility agreement.
The firm owed a duty of care to Mr Lynch and his family concerning the loan facility letter and breached that duty and was negligent because a solicitor with the firm mistakenly told the Lynchs the loan was a non-recourse loan when in fact it was recourse, he ruled.
However, the judge added that it would be an "injustice", given the particular circumstances of this case, to find LK Shields must indemnify the Lynchs against AIB's claim.
The particular circumstances included Mr Lynch's "highly implausible" claim he made a last-minute decision at Heathrow Airport hours before the deal closed he would not proceed with it if the loan was a recourse loan.
There was, he found, no reliance on the legal advice and therefore any damage suffered was not caused by the solicitor's error.
The Lynchs' loss was rather caused by a combination of the property collapse and the fact, despite their having had constant advice over a year that, to minimise tax, they should be borrowers in the deal, little or no attention was paid to the terms of the borrowing.
He rejected additional arguments that another law firm involved in the transaction, Matheson Ormbsy Prentice, had a duty of care to the Lynchs to ensure they were aware of the change in the loan documents which had the effect of giving AIB recourse to all the Lynchs.
Mr Justice O'Donnell said there was a significant difference between the position of Mr Lynch and that of his wife and
children in the transaction as the family were only brought in very late for Mr Lynch's own "understandable, private wealth management purposes".
The last minute change by AIB in loan documents concerning the issue of recourse caused confusion and led to the other family members being exposed to potential liability for €25m.
"It might not be unduly harsh to conclude that persons who stood to gain very significant amounts of wealth for little risk or involvement do not deserve particular sympathy if the transaction turns unexpectedly sour and the undeserved profit turns into an undeserved liability," he said.
"Harsher things have been suffered by many individuals in recent years."
However, the key feature which gave rise to the potential liability of Eileen Lynch and her children was "the tax driven requirement" they must be parties to the land transaction and be treated as borrowers of the loan.
It was the failure to address or appreciate the legal consequences of that step which exposed them to liability.
The family, whose net worth may be limited, now faced a "potentially ruinous" personal liability of which they were not advised and which AIB only obtained to facilitate enforcement of the loan against Philip Lynch and Mr Conlan.
In those circumstances, there may be "a residual question" whether it was equitable to permit AIB to enforce the judgment against the other members of the family.
To that limited extent, the judge said would set aside the judgment against the other family members and leave it to the sides to consider if there was any merit in pursuing that issue further.
Summary judgment against all of the Lynchs was granted in December 2011.
The High Court was previously told Mr Conlan accepted he had no defence to a similar judgment being entered against him unless Mr Lynch won his appeal.