A financial fund has been ordered by a High Court judge to pay €53,000 in damages to a businesswoman whose signature on a mortgage deed was found to have been “forged”.
The award was made by Mr Justice Mark Heslin in favour of Elaine Madigan, who sued Promontoria Oyster Designated Activity Company, and the receiver – Tim O’Brien – it appointed over a bungalow she owns at Ballinamorragh, Curracloe, Co Wexford.
The judge made the award after upholding a lower court’s order that the property was not to be sold by the defendants, which took control of it over four years ago.
Represented by Michael O’Connor SC, with Barry Mansfield, instructed by Rosemary Crowley of Swaine Solicitors, Ms Madigan said a signature on a 2004 mortgage, on foot of which the fund claimed it was entitled to appoint a receiver over the property, was not hers.
A handwriting expert retained by her gave evidence to the court that signatures on the mortgage and other documents were not hers.
She also disputed the fund’s claim that she signed the mortgage deed, allegedly agreed with Ulster Bank, and other documentation, in the presence of a solicitor.
The Co Kildare-based woman claimed she would never have signed away the three-bed house, as it has been in her family for many years.
She acquired it in the 1990s from her parents for £30,000 and without obtaining a mortgage.
She said she did not know if any money was ever drawn down on the purported mortgage agreement.
She claimed that, as the mortgage deed was not valid, the fund and receiver were not entitled to appoint a receiver over the property nor take any steps including selling it.
Ulster Bank purported to create a charge over the property in 2009 and in 2017 the alleged charge was acquired by Promontoria, which in 2018 appointed Mr O’Brien as receiver.
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Ms Madigan also claimed that the property was not properly maintained after the receiver was appointed, and sought damages over the failure to properly maintain the house.
The fund had fully defended the action and argued that the plaintiff’s claim was frivolous and was bound to fail.
The fund claimed that the mortgage was signed by Ms Madigan, her husband Richard Madigan, and was witnessed by their solicitor Eamon Keenan.
Ms Madigan had secured orders from the Circuit Court against the fund and the receiver preventing them from selling the property, and also ordered that the three-bed house be properly maintained until the legal dispute had been resolved.
That order was appealed to the High Court.
Dismissing the appeal, Mr Justice Heslin said that the court was being asked if Ms Madigan had signed the mortgage, “the inexplicable inference being that it was forged”, rendering the mortgage “a fraudulent instrument”.
The judge said that Ms Madigan gave clear and consistent evidence that she had never signed the mortgage agreement or a declaration that the property was not a family home.
The court did not have to make any determination as to who committed the fraud or how it occurred, he said.
The judge said he was taking into account evidence from a handwriting expert which he said “went only one way” to support her claim that the contested signatures on the documents were not Ms Madigan’s.
This was not contested by the defendants or any other party, the judge said.
The evidence before the court was such that the signatures were not Mrs Madigan’s, and therefore they could not have been witnessed by the solicitor, the judge said.
The solicitor, the judge said, had given bona fide evidence, and was “sincerely mistaken” in his belief that the signatures were Ms Madigan’s.
The judge said that in relation to the damages aspect of the claim, the defendants were made aware in 2019 of averments that the signature on the mortgage deed was forged.
The judge also found that the property was not properly maintained after the receiver was appointed.
Since getting the property back, Ms Madigan had to do a lot of work on it, the judge said.
He said Ms Madigan was entitled to €43,000 in damages for the 43 months for which the property, which was much loved by the plaintiff, was in the receivers’ control plus exemplary damages €10,000.
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