Here's a pretty tough case

littlemac1980

I haven't read every line but it appears that what happened is:

Your financial adviser/accountant asks for some temporary financial assistant (presumably) tells you that the transfer process is simple as both of you bank at the same branch of AIB.

AIB essentially take your payment of his debt without question or query (bank drafts are made out to his account so far as I can tell)

AIB know how substantial his debt with them is, and would in all likelihood have full details of his assets/liabilities etc.

AIB would know also that he is a Financial professional.

AIB willingly accept your part (yet substantial) payment of his debt until you are effectively cleaned out and then question whether you are "under pressure" of some sort to be making these payments.

The Judge seems to have decided it upon the principle that a bank generally owes no duty of care to a Customer, but I can't help thinking there may be a bit more than the general common law position going on here.

Anyone have any thoughts/comments.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/fd3d61b44d9f0f2680257f490050b206?OpenDocument

ohnonotgmail

i think you have included the wrong link to the case. no mention on that link of AIB or financial advisors

Victor

You've linked to a landlord & tenant case.

THOMAS THOMPSON HOLDINGS LIMITED,
MONTAYA DEVELOPMENTS LIMITED AND
CARLOW CENTRE MANAGEMENT LIMITED
AND
MUSGRAVE GROUP PLC,
MUSGRAVE RETAIL PARTNERS IRELAND LIMITED AND
MUSGRAVE OPERATING PARTNERS IRELAND LIMITED

littlemac1980

Apologies - edited the original post to include the correct link

ohnonotgmail

after a quick read i can see why he lost his case. You describe this as a difficult case OP but i cant see why. A man loaned out a substantial sum of money with a lease as security and did so without legal advice whatsoever.

At the very heart of Mr Delaney’s claims against AIB is his belief that they ought to have told him of Mr Killaly’s position in the bank, which they knew, in circumstances where they also knew that it was Mr Delaney who was the source of the significant lodgments to Mr Killaly’s account.

How he thinks the bank could do that and not breach the DPA at the same time i dont know. The man was naive in the extreme. Bonus points for mentioning Denning though.

littlemac1980

ohnonotgmail wrote: »

after a quick read i can see why he lost his case. You describe this as a difficult case OP but i cant see why. A man loaned out a substantial sum of money with a lease as security and did so without legal advice whatsoever.



How he thinks the bank could do that and not breach the DPA at the same time i dont know. The man was naive in the extreme. Bonus points for mentioning Denning though.

Well I described it as a tough case, and I can't say that I don't find the decision - which leaves the man without any recourse - a very tough decision and situation for him.

One thing that occurred to me is that it the facts of this case - while they are obviously different from such - are not so far removed from those of important decisions establishing and developing Undue Influence - and the implication that in certain situations banks are unable to rely on contractual securities from third parties where they are put on enquiry that undue influence may be a factor, and in particular that they are then required to take a number of steps which do not interfere with confidentiality rules to ensure that they may later not be prevented from enforcing those securities. Those particular steps serve two purposes - the one mentioned - i.e. they can rely on the security in the future, and to protect a potentially vulnerable person.

ohnonotgmail

littlemac1980 wrote: »

Well I described it as a tough case, and I can't say that I don't find the decision - which leaves the man without any recourse - a very tough decision and situation for him.

One thing that occurred to me is that it the facts of this case - while they are obviously different from such - are not so far removed from those of important decisions establishing and developing Undue Influence - and the implication that in certain situations banks are unable to rely on contractual securities from third parties where they are put on enquiry that undue influence may be a factor, and in particular that they are then required to take a number of steps which do not interfere with confidentiality rules to ensure that they may later not be prevented from enforcing those securities. Those particular steps serve two purposes - the one mentioned - i.e. they can rely on the security in the future, and to protect a potentially vulnerable person.

a tough decision for Mr Delaney for sure but not a tough decision for the judge. I do not see any mention of undue influence in the decision. Mr Delaney did not rely on this in his evidence. As for the matter of security this would have been found quite easily if Mr Delaney had done his due diligence. This was not a loan for a small amount. Mr Delaney should have done his due diligence preferably via a solicitor. he decided not to do this. that is to his detriment.

littlemac1980

ohnonotgmail wrote: »

a tough decision for Mr Delaney for sure but not a tough decision for the judge. I do not see any mention of undue influence in the decision. Mr Delaney did not rely on this in his evidence. As for the matter of security this would have been found quite easily if Mr Delaney had done his due diligence. This was not a loan for a small amount. Mr Delaney should have done his due diligence preferably via a solicitor. he decided not to do this. that is to his detriment.

Yes I agree with everything your saying. It's obvious that Mr. Delaney didn't seek professional advice and had he done so things could have turned out differently for him.

Perhaps I'm not being clear, but from what I can tell Mr. Delaney was not represented during the course of his appeal.

What I'm asking is whether posters here feel he could have had an arguable case for Undue Influence and also any other discussion regarding potential remedies that he might have availed of, e.g. unjust enrichment which it appears was pleaded but was rejected by the Court.

Another point, which I could be totally wrong about (but I have a vague recollection of coming across this point previously) that a Superior Court Judge may decide to grant equitable relief even where such has not been specifically pleaded.

ohnonotgmail

littlemac1980 wrote: »

Yes I agree with everything your saying. It's obvious that Mr. Delaney didn't seek professional advice and had he done so things could have turned out differently for him.

Perhaps I'm not being clear, but from what I can tell Mr. Delaney was not represented during the course of his appeal.

He chose not to seek legal representation. Hence the McKenzie fried.

What I'm asking is whether posters here feel he could have had an arguable case for Undue Influence and also any other discussion regarding potential remedies that he might have availed of, e.g. unjust enrichment which it appears was pleaded but was rejected by the Court.

i think you are confusing two things here. Any undue influence could only have come from Mr Killaly. There is nothing in the court ruling which suggests that was the case. The claim for unjust enrichment was against the bank.

Another point, which I could be totally wrong about (but I have a vague recollection of coming across this point previously) that a Superior Court Judge may decide to grant equitable relief even where such has not been specifically pleaded.

No idea.

Robbo

Here's the judgment from the High Court.

Sheds a bit more light on the level of enquiry the bank undertook and the duty of care they owe you (very little as it happens, they're not your mother). The plaintiff also asserted that an alleged conveyance involving his brother and the Killalys gave him rights to the property. This was in or around when he instituted proceedings against the bank and 4 years after the Killalys were bankrupted so draw your own conclusions on that.

I'd like to know what kind of advice the McKenzie friend was doling out here.

Mr. Incognito

A approached the bank for a loan.

Bank gave loan.

A loaned that money to third party.

Lost it.

Raises defence that bank owes a duty of care to see where the money is going.

By that logic, your friend could raise an equally valid defence you for not doing due diligence on him as you also owe him a duty of care.

You havent thought that one through.