THE SUPREME COURT[Supreme Court Appeal No. 188/2008]
[High Court Record No: 2006/ 857 P]
Denham C.J.
Charleton J.
O’Malley J.
THOMAS J. ROCHE
RESPONDENT
APPELLANT
JUDGMENT of Ms. Justice O’Malley delivered the 21st day of July 2017.
Introduction
1. This is yet another offshoot of the litigation concerning the mining company Bula Limited (“Bula”) that has been before the courts in one form or another for more than thirty years.
2. The appeal is against the decision of MacMenamin J. in Roche v. Wymes [2008] IEHC 141. The findings of fact in the case are set out in considerable detail in that judgment and it is not proposed to give more than a brief outline here by way of introduction. This particular litigation arises out of the fact that in the late 1970s and early 1980s Mr. Thomas J. Roche and Mr. Michael Wymes, together with Mr. Roche’s late father and Mr. Richard Wood, each gave personal guarantees (up to specified limits) in respect of three bank loans taken out by Bula. Two of the guaranteed loans were with Northern Bank Finance Corporation, the predecessor of National Irish Bank. It is referred to here as “NBFC” or “NIB” depending on the context. The third loan was with Ulster Investment Bank, which eventually became Ulster Bank and is here referred to as “Ulster”.
3. The company was unable to meet the loan repayments and eventually the banks sought to enforce the guarantees. Ultimately, after many years, Mr. Roche settled with both banks and discharged his liability under the guarantees. In these proceedings he has sought a proportionate contribution from his co-guarantor Mr. Wymes. MacMenamin J. awarded him a total sum of €1,707,119. In the appeal Mr. Wymes has mounted a challenge to the finding of liability on a wide-ranging basis, raising issues as to the necessary proofs to ground Mr. Roche’s claim for contribution; whether his liability was extinguished by the failure of Mr. Roche to consult him before entering into the settlement; whether the claim as against him was statute-barred; whether the bank’s claim as against Mr. Roche was statute-barred and, if so, what the consequences would be. There are also a number of matters in respect of which Mr. Wymes says that he was not given proper credit, by way of reduction in the final figure, by the trial judge. He makes an overall argument that he was unsuccessful on certain factual issues because the trial judge mistakenly formed an adverse view of his credibility.
Relevant History
4. On the 20th December, 1982, NBFC obtained judgment against the guarantors, on foot of its two guarantees, in the sum (including interest) of IR£3,912,335.12 (€4,967,609.20) plus costs. On the 26th October, 1983, it registered a judgment mortgage in the amount of the judgment against Mr. Wymes’ house and lands at Bective in Co. Meath.
5. On the 1st November, 1983, on consent, the Supreme Court affirmed the High Court order of December, 1982. There was a stay on the order until the 1st February, 1984, on condition that the guarantors paid certain specified sums to NBFC before the 3rd January, 1984. Those sums were paid, and execution on foot of the judgment was further deferred in consideration of subsequent payments made to the bank.
6. Ulster obtained liberty to enter final judgment against the guarantors in the sum of IR£2,321,559.29 plus costs in the Master’s Court on the 2nd March, 1984, with a stay to the end of April of that year. It then entered into a series of agreements pursuant to which it did not enter judgment while agreed payments were being made. The evidence was that these payments were applied to the monthly interest due from Bula. The agreements came to an end with the notification to the guarantors by Ulster, in January 1985, that it was proceeding with the entry and registration of the judgment against them. The relevant papers were lodged on the 7th March, 1985.
7. On the 9th March, 1984, the Roches executed a mortgage in relation their family homes and surrounding lands in favour of NBFC. The mortgage contained a covenant to pay on demand the amounts outstanding on the judgment together with interest. They then entered into a series of time-limited conditional agreements whereby the bank agreed to defer execution in consideration of payments of specified amounts.
8. Mr. Wood and Bula also provided further security to the banks, and over the course of 1984 and 1985 a number of payments were made to the banks by each of the guarantors.
9. In 1986, the company, along with Mr. Wymes, Mr. Wood and the Roches, instituted proceedings against the banks (“the Bank proceedings”). They claimed damages and orders setting aside all loan agreements, securities, guarantees and judgments in favour of the banks. Separate proceedings were issued by the same plaintiffs against Tara Mines and the Minister for Energy (“the Tara proceedings”).
10. Meanwhile the banks attempted to enforce their judgments. NBFC made demand of the Roches in December, 1987, and issued proceedings by way of special summons on the 12th January, 1988, seeking possession of their family lands in accordance with the mortgages. These proceedings were stayed pending the outcome of the Bank proceedings.
11. On the 26th February, 1997, Ulster registered a judgment mortgage, on foot of the judgment registered by it in March, 1985, against the interest of Mr. Wymes in the property at Bective. The following month it commenced bankruptcy proceedings against all the guarantors. Mr. Roche Senior died in 1999, while these proceedings were still in being, and Ulster petitioned for an order for the administration in bankruptcy of his estate. The sum claimed by Ulster was the amount of its judgment debt - IR£2,321,559.29 plus costs in the sum of IR£122.50 (totalling IR£2,321,681.79) - with no claim for interest.
12. Meanwhile the Roches had lost faith in the litigation and by April, 1997 they had withdrawn from all of the proceedings in which they were plaintiffs. Mr. Wymes and Mr. Wood persevered with the actions against Tara and the banks. They were eventually disposed of in this Court, in favour of the defendant parties, by orders made in January 1999, February 2003 and July 2003. The stay on NBFC’s mortgage proceedings was therefore lifted and it served a notice of intention to proceed in July, 2003. On the 25th November, 2003, NIB wrote to Mr. Roche and to the executors of his father’s estate demanding payment of a sum in excess of €11.9m, failing which the bank would seek an order for possession of their lands.
13. In February, 2003 Mr. Wymes sought the cancellation of the judgment mortgage that NIB had registered in October, 1983. NIB successfully objected to this. In correspondence with the Land Registry NIB’s solicitor conceded that the “ordinary” limitation period in respect of both the judgment debt and the judgment mortgage ran from the date of the Supreme Court order of the 1st November, 1983, and had therefore expired on the 30th October, 1995. However, it was asserted that Mr. Wymes had acknowledged his debt to NIB on the 14th April, 2000, in an affidavit sworn by him in the action against the banks. This was said to be sufficient to revive the limitation period, having regard to ss. 56, 58 and 59 of the Civil Liability Act 1961. The judgment mortgage was not cancelled at this time.
14. The bankruptcy proceedings brought by Ulster against the guarantors were fixed for hearing in late March, 2004. At that stage the bank’s claim was for €1.989m (after credit of approximately €1m had been allowed for certain securities realised by Ulster in 1985).
The settlement with Ulster
15. On the 26th March, 2004, Mr. Roche and his father’s estate entered into a settlement with Ulster, pursuant to which they agreed to pay the sum of €1.4 m and the bank agreed to release them from all claims relating to the loans and consented to the dismissal of the bankruptcy proceedings as against them.
16. It was agreed by Mr. Roche and his witnesses that the settlement was negotiated without informing or consulting Mr. Wymes, and that neither he nor Mr. Wood were notified until after the agreement had been reached. Mr. Roche’s solicitor said that since 1993 there had been five “sustained attempts” to involve them in “realistic” negotiations with the banks, none of which had succeeded. It was believed that there would have been no point in involving them in this matter.
17. Mr. Hayes, who negotiated on behalf of the bank, said that he had taken a tough position, initially seeking the full amount but finally agreeing to accept the sum of €1.4m from the Roches. Ulster then, on the 29th March, 2004, sought payment of the outstanding balance of €589,841.84 from Mr. Wymes and Mr. Woods. It also re-entered its well-charging proceedings against them, on foot of an affidavit making it clear that the sum now sought was €589,841.84. In his defence, Mr. Wymes relied inter alia on the Roche payment of €1.4m in arguing that his liability had been discharged. He also pleaded that the matter was statute barred.
18. In 2006, it came to Ulster’s attention that Mr. Wymes was proposing to sell some of his property. Negotiations were then carried on between the parties and Mr. Wymes eventually paid the sum of €589,841.84 on the 1st August, 2006. It is clear that he did so in order to be able to pass good title to the property. An initial effort to make the payment on a “without prejudice” basis was not persisted with. The effect of the payment was that nothing further was due on foot of Ulster’s judgment against the guarantors.
The NIB settlement
19. On the 23rd June, 2004, Mr. Roche and the executors of his father’s estate reached a settlement with NIB. They agreed to pay €9m in discharge of the demand for €11.9m, in return for which they were released from all claims under the loans and the mortgage was discharged. Mr. Roche’s solicitor, Ms. Isabel Foley, said in evidence that the sum due from the guarantors at that point was just over €10m. She had notified Mr. Wymes and Mr. Roche of the settlement after it was concluded, and their solicitor had responded that they did not accept that the settlement document truly represented the arrangements between the Roches and the bank. Ms. Foley said that there was no other “side deal” or arrangement.
20. Ms. Foley said that she had been aware that Mr. Wymes claimed that all of the bank debts were statute barred at the time the settlement was entered into. It was put to her that in those circumstances he ought to have been consulted. She responded that it had to be seen in a context that he had always asserted that he had no liability for any of the debts. If he had had to be consulted there would have been no settlement.
21. In 2004, NIB also commenced proceedings seeking a well-charging order, on foot of its judgment of 1982, as against Mr. Wymes’ property. Again, Mr. Wymes relied on the Statute of Limitations. Apart from that, in an affidavit sworn on the 8th July, 2004, Mr. Wymes deposed to his belief that the Roches had previously been discharged or released from the guarantee and judgment debt, with the effect that he too was entitled to discharge. It appears that this was a reference to his belief that the Roches had reached a private agreement with the banks perhaps as early as 1997. He also averred that the bank was incorrect in stating that the entire amount of the judgment remained due and owing, with reference to payments by the guarantors that he said amounted to some €10m. He specifically referred to newspaper reports of the sale by the Roches of the property that had been part of the security held by the bank.
22. The solicitors for NIB subsequently notified Mr. Wymes that in the light of “developments” the well-charging proceedings were being withdrawn. The evidence in the instant case was that NIB’s legal advisors believed that Mr. Wymes’ liability had been extinguished by the Roche payments in 2004.
23. In October, 2005 Mr. Wymes again applied for cancellation of the judgment mortgage registered by NBFC against his property in 1983. In making that application he said that the bank had by its own account received payments of a minimum total amount of IR£8,278,175.40 (€10,511,114.00) between May, 1984 and the 24th June, 2004, that were attributable to the judgment debt. In this context he referred to a “lodgement” by the Roches of IR£7,088,076.00 on the 24th June, 2004. He swore that, accordingly, no sum remained due by him under the judgment, “and the charge is paid”. The judgment mortgage was cancelled.
The claim in the current proceedings
24. In late December, 2005 Mr. Roche became aware that Mr. Wymes had achieved the cancellation of the judgment mortgage. On the 1st February, 2006, his solicitors wrote to Mr. Wymes requesting payment of €2,669,478, which they calculated to be the rateable contribution due by him on foot of the payments made by the Roches to NIB and Ulster in 2004. This figure was later recalculated, in the course of these proceedings, to take account of payments proven in evidence to have been made by Mr. Wymes and Mr. Wood, and the amount ultimately claimed before MacMenamin J. was €2,048,375 in respect of NIB and €93,860 in respect of Ulster. As noted above, the total figure awarded was €1,707,119. In calculating this figure, the trial judge held firstly that the total common debt, in respect of which Mr. Wymes was liable to pay one quarter, was €7.326m. Thus, Mr. Wymes’ liability was for €1,831,500. Secondly, he held that Mr. Wymes had no remaining liability in respect of the Ulster settlement, in that his payment of €589,841.84 in 2006 represented an overpayment of his proportionate contribution in the sum of €124,381. This latter figure was then set off against the calculation of the proportionate amount due from him in respect of the NIB settlement.
The witnesses
25. The witnesses as to fact called on behalf of the plaintiff were Mr. Roche himself, a solicitor who had acted for him in negotiating the bank settlements, bank officials from each bank and the solicitors who had acted for the banks. Mr. Wymes was the only defence witness as to fact.
26. Both parties adduced expert evidence from chartered accountants. However, it was apparent that the sources of information upon which their opinions were based differed markedly. Mr. Carson, who gave evidence on behalf of Mr. Roche, said that in his examination of the issues in the case he had available to him the pleadings, the witness statements and the discovery documentation. Mr. Hyland, called on behalf of Mr. Wymes, appears to have been furnished with only the statement of claim, the witness statements of Mr. Wymes and Mr. Wood, and what was described as “certain information or explanations given to him”. It is apparent from the judgment that the trial judge considered this to be a significant factor in deciding upon the merits of such areas of disagreement as existed. I consider that this was a reasonable and correct view.
The role of this Court on appeal
27. The approach of an appellate court in assessing findings of fact by a trial judge was settled in Hay v. O’Grady [1992] 1 I.R. 210, where McCarthy J. stated that if the findings were supported by credible evidence, the appellate court was bound by them. This was so even if there was voluminous and apparently weighty testimony against the findings. In discussing this principle in Doyle v. Banville [2012] IESC 25, Clarke J. said:
“Finally, before moving on to the specific issues which arise in this appeal, it is also important to note that part of the function of an appellate court is to ascertain whether there may have been significant and material error(s) in the way in which the trial judge reached a conclusion as to the facts. It is important to distinguish between a case where there is such an error, on the one hand, and a case where the trial judge simply was called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case it is no function of this Court to seek to second guess the trial judge’s view.”
Issues raised by Mr. Wymes in the appeal
Findings as to credibility
28. The appellant submits that the trial judge made an unfair and erroneous finding as to his credibility. At paragraphs 87 and 88 of the judgment, under the heading “Credibility of the defendant”, MacMenamin J. referred to a document furnished by Mr. Wymes’ legal representatives to the Court. This had been handed to the judge in response to inquiries made by him in relation to the details of the property owned by Mr. Wymes in Bective. Counsel stated that the document had been prepared by his solicitor in relation to the closing of the sale of the property, and it showed the application of the proceeds of sale. Some doubt was expressed by counsel for Mr. Roche as to its status, and MacMenamin J. said that he would receive it de bene esse subject to what might emerge in cross-examination.
29. The document contained a list of deductions that included amounts owed to Ulster Bank, the receiver and Tara Mines, (mostly in respect of legal costs) and in the trial judge’s eyes appeared to convey that Mr. Wymes was solely liable for these, to the extent that he was left with only about €257,500 out of a sale price of nearly €13m. However, the document did not mention, and Mr. Wymes in his evidence did not initially refer to, the fact that Mr. Wood had a joint liability for these debts. The trial judge was dissatisfied with Mr. Wymes’ responses to cross-examination on this topic, when he accepted that he had entitlement to a contribution of €4.5m from Mr. Wood.
30. The judgment quotes the following passage from the cross-examination:
“Q. In those circumstances that combined sum, nearly €9 million, can I ask you to confirm have you sought any contribution from Mr. Wood in relation to that payment which you made?
A. I discussed it with Mr. Wood, My Lord, and he said he will honour his, as the honourable man that he is, when he is in a position to do so, if and when he is in a position to do so.
Q. In those circumstances do I understand the position he has agreed to pay the sum of half the amount that is due?
A. If and when he is able to do so.
Q. That is effectively an entitlement of €4.5 million to be paid by him to you; is that correct?
A. I would think so based on the law of this case.
Q. In this situation you are accepting as you see it an entitlement to be paid €4.5 million by Mr. Wood?
A. Yes, I think so, yes.”
31. The situation was subsequently clarified by Mr. Wymes’ counsel, who confirmed that in fact Mr. Wood was liable to contribute as much as €6m. MacMenamin J. did not accept that a figure such as this could have been forgotten. The judge also thought it clear that Mr. Wymes’ understanding was that there was a joint and several liability between Mr. Wood and himself, and that he had a legal entitlement to a contribution on foot of that situation. He said that for these reasons he found he was unable to hold that Mr. Wymes was a reliable witness whose testimony could be taken at face value.
32. Mr. Wymes contends that this finding constituted a serious error. The document, he says, was prepared by his solicitor for the purposes of meeting Law Society requirements for the sale of the Bective property. It had been offered to the Court for its assistance by his counsel, and had been expressly described as having been limited to the identification of the application of the sale proceeds. It had not been drawn up for the purpose of clarifying his own financial status.
33. It is also complained that the excerpt quoted from the transcript omits a question from the same passage as to whether Mr. Wymes had threatened to sue Mr. Wood, to which the answer had been that he did not think that he would, since they had a longstanding honourable relationship, but that it would be a very stupid thing to say that he never would. Mr. Wymes says that he thereby made it clear that he knew there was a legal obligation on the part of Mr. Wood.
34. Mr. Wymes says that the finding of unreliability became particularly relevant in relation to the question whether or not he was entitled to credit for certain payments that he claimed to have made to the banks in 1984/1985 (through Bula itself and through a company called Orpheus Mining Ltd.). He argues that if he had been given credit for those payments it would have eliminated or at least significantly reduced his liability in respect of Mr. Roche’s claim. These issues are dealt with further below.
35. A finding as to credibility is a finding of fact, and the role of this court in assessing it is therefore subject to the Hay v. O’Grady and Doyle v. Banville principles.
36. It seems to me to be clear that the trial judge’s finding in this instance was based more on the use made of the document by Mr. Wymes than on its content. Mr. Wymes was brought through it by his counsel in evidence in chief and he confirmed the various debts and the sale price. The trial judge asked him at that stage whether he had any of the €257,500 left and he replied that he had some, but that his son had also had a mortgage. It was not until cross-examination that he agreed with the proposition that Mr. Wood was liable to him for a contribution of up to €4.5m. At the end of his evidence Mr. Wymes was asked about this by the trial judge, who suggested that the impression given by the document was that €257,500 was all that was left after a series of transactions. Mr. Wymes said that he had not intended to mislead. It was his counsel, and not Mr. Wymes, who then clarified that Mr. Wood’s liability was joint and several, so the figure would in fact be about €6m.
37. In these circumstances I do not consider that the finding as to Mr. Wymes’ reliability was not soundly based or was the result of a “significant and material error”.
The Statute of Limitations (i) - whether NIB’s action against Mr. Roche was statute-barred
38. In the High Court this was described as a “central” aspect of Mr. Wymes’ case. The submissions on this issue were based on the fact that the judgment obtained by NIB became enforceable on the 2nd February, 1984, (the date upon which the Supreme Court stay expired). It was argued that no action was brought upon the judgment within 12 years of that date, and that there had been no acknowledgement or part-payment within the meaning of s.56(1) of the Act. Therefore, as of the date of the settlement between the Roches and NIB, the matter was statute barred by virtue of s.11(6) of the Statute of Limitations Act 1957. It was submitted that it followed that if Mr. Roche had no legal obligation to pay, there was no right to claim a contribution from Mr. Wymes.
39. On behalf of Mr. Roche it was responded that NBFC had indeed brought an action within the 12 years, having issued the special summons for possession in January, 1988. Counsel for Mr. Wymes countered that this was not an action upon the judgment, but an action upon the judgment mortgage. Mr. Wymes had not been a party to the mortgage, and was therefore not liable in respect of the debt arising therefrom. In those circumstances, it was argued that it could not be said that he was liable in respect of the same debt as Mr. Roche, and therefore he could not be subjected to a common demand. The only cause of action in respect of which there had been a common liability was the cause of action founded on the 1983 judgment, and that was statute barred. If the Roches chose to make payments in respect thereof, they could not at that stage seek a contribution from Mr. Wymes.
40. In the first place, this argument ignores the fact that the mortgage was, on its face, executed in order to secure the amounts due under the judgment against the guarantors, and therefore did relate to the common debt.
41. Secondly, Mr. Roche’s evidence was that he had sought advice on the limitation point and had concluded that he could not rely upon it. It may be observed that it is difficult to see how, in these proceedings between Mr. Roche and Mr. Wymes, the trial judge could have found that the Statute would have afforded a good defence to Mr. Roche in the possession proceedings brought by the bank. The dates alone would not be sufficient, since the issue arises only if it is pleaded as a defence. The bank would then have been entitled to adduce whatever evidence was available to it to demonstrate that the defence should not succeed. Since that issue was not litigated in this action, there was no basis on which the trial judge could have found that Mr. Roche would have prevailed.
42. As an alternative argument it was submitted that even if the special summons had stopped time running as against Mr. Roche, it could not do so as against Mr. Wymes.
43. On this aspect MacMenamin J. relied upon Wolmerhausen v. Gullick [1893] 2 Ch 514 and Gardner v. Brooke [1897] 2 I.R. 6 in holding that the right of contribution could be asserted against a co-surety notwithstanding the fact that the creditor’s right of action against the co-surety had become time barred. The material date was the date of payment by the claimant surety. In this case, the payments had been made in 2004, and therefore no time issue arose.
44. This is a well-established principle of law, which may be seen as flowing from the equitable nature of the right to claim a contribution. In my view it was correctly applied by the trial judge.
The Statute of Limitations (ii) - whether Ulster’s claim was statute-barred
45. Ulster had obtained liberty to enter final judgment on the 2nd March, 1984, with a stay on entry until the 30th April, 1984. The evidence was that it did not enter judgment until the 7th March, 1985, because of the intervening agreements. The bankruptcy proceedings were instituted on the 5th March, 1997. Mr. Wymes argued that time ran from the date on which the judgment was pronounced, rather than the date upon which it was entered. The 12 year period therefore elapsed on the 1st May, 1996.
46. Mr. Wymes also pointed out that in 2006 he had paid the sum of €589,841.84 to clear the outstanding amount claimed by Ulster. His evidence was that he did so under “economic duress” in order to be able to sell Bective and prevent bankruptcy proceedings. He accepted however that the payment had not been, as he had sought initially, without prejudice.
47. MacMenamin J. rejected the “economic duress” argument as “a misconceived effort to provide a line of defence”, and held that the payment was made to discharge the judgment debt. The limitation argument did not succeed, having regard to the finding he had already pronounced as to the time of accrual of Mr. Roche’s cause of action.
48. This finding is consistent with those in relation to the NIB settlement and I consider it to be correct. In any event, it is not entirely clear to me why Mr. Wymes raised this argument. His strongest point in relation to the Ulster settlement is the fact of his payment in 2006, and ultimately the trial judge found that this was in fact an overpayment on his part. He was therefore entitled to a reduction in the figure attributed to him in respect of the NIB settlement.
The Statute of Limitations (iii) - s. 35 of the Civil Liability Act 1961
49. It was common case between the parties that as a general rule time did not begin to run in respect of a claim for a contribution until the surety making the claim had paid more than his rateable share. However, it was argued that separate considerations arose where the creditor’s claim, while not statute barred as against the surety who made that payment, was barred as against the surety from whom the contribution was sought. It was submitted by counsel for Mr. Wymes that, to the extent that they suggested otherwise, Wolmershausen v. Gullick and Gardner v. Brooke should not be followed.
50. This aspect of the submission depended on the applicability of s.35(1)(i) of the Civil Liability Act 1961. The effect of that provision is that if damage to a plaintiff is caused by concurrent wrongdoers, and the claim against one of them becomes statute-barred, the plaintiff shall be deemed responsible for the acts of that wrongdoer. Counsel argued that the effect of the section was that in permitting its claim as against Mr. Wymes to become statute-barred, NIB became liable for his fair share (one quarter) of the common debt when attempting to pursue Mr. Roche. Mr. Roche had thereby, in effect, received a contribution from Mr. Wymes. If Mr. Roche had failed to rely upon s.35(1)(i) that was his own fault and could not justify a demand for a contribution.
51. MacMenamin J. held that this point was misconceived. Section 35 was concerned with determining issues of contributory negligence in an action for damages. The Act in general was concerned with common law claims in respect of “wrongs” as defined by the Act. It had no application to an equitable claim of this nature.
52. In my view this is manifestly correct.
The Statute of Limitations (iii) - estoppel
53. Counsel for Mr. Roche had submitted that Mr. Wymes was estopped from relying on the Statute. This is not dealt with in any detail in the judgment, presumably because the trial judge considered that the defence failed in any event. There does not appear to be any need to embark upon the topic, given the findings already recorded above.
The Statute of Limitations (iv) - acknowledgment
54. The trial judge found it necessary to consider whether, on the evidence, Mr. Wymes had acknowledged either the NFBC or Ulster judgments.
55. Mr. Roche contended in the High Court that Mr. Wymes had acknowledged his liability to the banks during the preceding 12 years, with the effect that the cause of action was deemed (pursuant to s.56(1) of the Statute of Limitations Act 1957) to have accrued on the date of acknowledgement. Section 58(1) of that Act requires, for this purpose, that the acknowledgement be “in writing and signed by the person making the acknowledgement”. Subsection (2) provides that it may be made by the agent of the person by whom it is required to be made.
56. The acts of acknowledgment alleged by Mr. Roche to have occurred all consisted of references to the judgments obtained by the banks in pleadings and affidavits filed on behalf of Mr. Wymes. The trial judge accepted that these were acknowledgments, and referred expressly to one example - an admission on behalf of Mr. Wymes and Mr. Wood, in a defence lodged in one set of proceedings in 1997, of the particulars of the bank judgments.
57. On behalf of Mr. Wymes it was argued that he never acknowledged the liability within the meaning of the Act. He had defended the well-charging proceedings in 2004 on the basis inter alia that they were statute-barred. He now contends in the appeal that an acknowledgment must be an admission of liability, and not merely an acknowledgment of specified facts that might give rise to liability were it not for the existence of other facts.
58. It is relevant, in my view, to note that in his analysis of this aspect MacMenamin J. found that Mr. Wymes had expressly relied upon the Roche payment in his application in 2005 for the lifting of the registered judgment mortgage and had not referred to the statute in that context (in contrast to a second application made at the same time in relation to a charge held by another bank). NIB treated the €9m payment as extinguishing Mr. Wymes’ liability and the judgment mortgage was cancelled in 2006.
59. Based on this evidence, the trial judge concluded that Mr. Wymes had been aware in 2005 of the €9m payment to NIB, had relied upon it, benefited from it and “ratified” or acquiesced in it. He could not now withdraw that ratification, and it permitted the equitable right of contribution to be exercised.
60. As far as Ulster was concerned, the trial judge found that there had been a number of acknowledgments arising in similar circumstances. However, it seems to me that the fact that Mr. Wymes made the payment of €589,841.84 in 2006 is in itself a complete answer to the issue. Despite his reluctance to do so, and his unsuccessful effort to have it treated as “without prejudice”, it can only be seen as an admission of liability under the judgment and a waiver of any defence he might have had. That payment extinguished his liability to Ulster. He therefore benefitted from the Roche settlement, since in its absence he would have had a joint and several liability for €1.9m.
61. In those circumstances I consider that it is not necessary to express a definitive view as to whether acknowledgment of the fact of a judgment implies an acknowledgment of liability to pay the sum awarded, where the defendant intends to rely on the statute.
The entitlement to claim a contribution - whether the plaintiff had proved payment of more than his rateable proportion of the common debt
62. Mr. Wymes accepted the general principle that an entitlement to claim a contribution can arise in equity where a surety has paid more than his rateable proportion of a common debt or liability.
63. In evidence Mr. Wymes expressed his belief that the Roches and NIB did not actually enter into the settlement recorded in 2004 but had reached some private collateral deal before that, related to the withdrawal by the Roches from litigation in the 1990s. That contention was not pursued in the closing written submissions lodged on his behalf and was dismissed by the trial judge on the basis that there was no evidence to support it. The evidence given by Mr. Roche, his solicitor and the bank officials was adamantly to the contrary and the trial judge was entitled to rely on their evidence. Although Mr. Wymes still appears to hold to his belief, I do not propose to discuss it further in the circumstances.
64. In relation to NIB it was argued on his behalf that there was no satisfactory proof that the amount paid by the surety making the claim in this case was in fact appropriated to the principal debt - that is, that Mr. Roche had failed to prove that his payment to NIB had gone to the discharge of the debt owed by Bula. The evidence was that a bank draft for €9m had been handed to the solicitor for the bank, and she was not in a position to say how it had been applied. Mr. Roche had said that he did not know if or how Bula had been given credit for it. Mr. Roche’s solicitor had not denied a suggestion by Mr. Wymes’ solicitor that the money had gone into a suspense account. The witness from NIB had not stated that it had gone towards the discharge of the Bula debt.
65. MacMenamin J. recorded the following features of the settlement (at paragraph 53):
“The NIB settlement was executed by the parties on 23rd June, 2004. It referred to the guarantee entered into by all four guarantors on 25th April, 1978 in respect of liabilities of Bula Limited to NIB, and to the guarantee entered into by the same parties on 10th January, 1980, also in respect of certain liabilities of Bula Limited to NIB. It provided that references to ‘the 1982 judgment’ were to the judgment of IR£3,912,335.12 with costs and interest granted by the High Court on 20th December, 1982, and affirmed by the Supreme Court on 1st November, 1983 in favour of NIB against Thomas J. Roche, Thomas C. Roche, Michael J. Wymes and Richard Wood. It provided that the payment of the sum of €9 million by Thomas J. Roche and the executors jointly, released Thomas J. Roche, the executors and the estate of Thomas C. Roche, from all or any actions or suits and costs (excluding an order for costs in [the unsuccessful actions against the banks], which NIB might have against Thomas Roche the executors or the estate of Thomas C. Roche.”
66. The trial judge held that the method by which the payment was banked in respect of Bula was irrelevant.
67. This finding seems to me to be unassailable. It seems absolutely clear that the relief of Mr. Wymes from liability to NIB on foot of the settlement could only have come about if the Roche payment was directed to the source of Mr. Wymes’ liability.
The residue of the debt
68. It was argued in the High Court on behalf of Mr. Wymes that the evidence disclosed that after the settlement between Mr. Roche and NIB there was a residue of debt, which was attributable to himself and Mr. Wood. The settlement agreement between the Roches and NIB specifically stated that it related only to the obligations of Mr. Roche and his father’s estate, and not to the obligations of any other party. The precise figure for the residue was unascertainable. Mr. Roche had therefore failed to prove that he had paid more than his share of the common liability.
69. The trial judge did accept that calculation of the aggregate amount of indebtedness of the guarantors was difficult, given the “real lack of clarity” in the evidence. (This appears to have been because the bank had not calculated how much was due from Mr. Wymes). He accepted the proposition, put forward on behalf of Mr. Wymes, that the proper approach was to identify the amount of debt for which the four guarantors had a shared liability. Because Mr. Wymes’ liability for interest, in the circumstances of the case, was agreed to be limited to Courts Act interest while the other guarantors were liable for commercial rates, the trial judge found that the shared indebtedness of the four guarantors was €7,326,000. This was the limit of the amount that could have been recovered from Mr. Wymes, on the basis of a figure of IR£3.9 m plus six years Courts Act interest. Examining the evidence, he found that NIB had received €14,489,117.00 from Mr. Roche and Mr. Wood.
70. At paragraph 100 of his judgment MacMenamin J. said:
“The payment of the €9 million was appropriated, not only to the debt owed by the Roches, but also to any debt owed by the defendant, Michael Wymes. It extinguished his debt.”
71. The evidence of the witness from NIB supported this finding. It was the reason why no further step was taken by that bank against Mr. Wymes. There is therefore no basis for overturning it.
Payments made to NBFC in 1984/1985
72. On foot of the agreements made with NBFC after the consent order in the Supreme Court, the guarantors made some payments in 1984, totalling the sum of IR£378,348, in consideration of a stay or deferral of execution of that order. There was a dispute in the High Court about how these payments should be treated, with Mr. Wymes contending that he should be given credit for them. The trial judge accepted the evidence of Mr. Roche’s accountant, preferring his analysis to that of Mr. Wymes’ accountant, that they were in respect of the Bula loan account and were so treated by the bank. They were not payments made under the guarantees and did not reduce the liability of the guarantors.
73. Mr. Wymes submits that this finding was in error, on the basis that the payments were “in return for the common and individual benefit of stays on execution achieved qua guarantor”. However, the point was that under the judgment agreements the guarantors agreed to make payments towards Bula’s indebtedness. The payments did not reduce their liabilities under the judgments obtained against them.
74. Other payments were made to NBFC by Bula in 1984, amounting to IR£475,885.31. There was a dispute in the High Court about the source of these latter payments. Mr. Wymes claimed that, although they were made by cheques written on Bula’s account, they were actually funded exclusively by himself and Mr. Wood, on a 60:40 basis. He said that this was done “through companies owned by us and realisation of shares in Bula Resources plc”.
75. Mr. Wymes accepts that he could not produce any documentation to support this contention. He objects to having been cross-examined on this point by reference to a transcript of evidence given by him before the Master of the High Court in 1985, and asserts that it is “unscrupulous” of Mr. Roche to deny him due and fair credit. The transcript in question deals with a cross-examination as to his assets on behalf of the bank. Mr. Wymes had referred to money owed to him on foot of loans made by him to the Bula companies in the 1970s but had said nothing about having made payments on behalf of Bula in the recent past.
76. The trial judge held that the onus of proof on this issue was on Mr. Wymes. He stated that he could not accept Mr. Wymes’ evidence at face value without corroboration. He referred to the absence of any documentary evidence and to the fact that Mr. Wood had not been called. However, more significantly, he found that, in any event, the payments were not made to reduce the indebtedness of the sureties and were not, therefore, to be taken into account.
77. This finding of fact cannot be described as resulting from any significant or material error. The complete absence of documentation contrasted with the situation of the other guarantors, where the persons making the payments were identifiable from the correspondence. In any event, the finding that the payments were not made in respect of the guarantors’ liability rules out the possibility of taking them into account.
Payment to Ulster in 1984
78. Payments totalling IR£253,408 were made to Ulster in 1984. Mr. Wymes contended that he and Mr. Wood made them, on a 60:40 basis. The trial judge found that there was no evidence to support this assertion. Furthermore he accepted Mr. Carson’s evidence that these payments were in respect of interest on the Bula loan account.
79. Again, this finding of fact cannot be disturbed.
Orpheus Mining Limited
80. Mr. Wymes asserted in the High Court that a payment of IR£36,735 made from a company called Orpheus Mining Ltd. to NBFC in 1985 should have been attributed to him. Initially he had claimed credit for 100% of the payment. However, that was reduced when he gave evidence, on the basis that he owned 76% of Orpheus (with Mr. Wood owning the other 24%). He complains that his evidence on this point was not accepted, despite the absence of any contradictory evidence.
81. MacMenamin J. noted that the original claim had been for credit for 100% of the payment. Mr. Wymes had no supporting documentation, and had not sought out any, for the assertion that payments made by Orpheus should be attributed to him personally. Mr. Wood had not been called to give evidence. It was further noted that in certain correspondence from the bank’s solicitor in 2005 to a company owned by Mr. Wood had ascribed this payment in its entirety to Mr. Wood. The trial judge therefore did not accept Mr. Wymes’ evidence on the issue.
82. This finding is not open to criticism on Hay v. O’Grady grounds.
Payments made to Ulster Bank in 1984-1986
83. Payments totalling IR£253,408.32 were made to Ulster Investment Bank in 1984. Mr. Wymes asserted that this was in consideration of the bank postponing the entry of judgment against the guarantors, and that credit for them should be apportioned between himself and Mr. Wood on a 60:40 basis.
84. Again, the trial judge found that the onus of proof in respect of the issue lay upon Mr. Wymes and that he had not discharged it. There was no corroborative evidence for his claim. The judge accepted the evidence of Mr. Roche’s accountant that this money was paid in respect of interest on the Bula loan account.
85. This was a finding that the trial judge was entitled to reach, and was not the result of any significant or material error.
Rockrohan
86. In December 1985 Ulster sold certain securities given by a company associated with Mr. Wood called Rockrohan Estates. The sale realised the sum of IR£690,405, which the bank put into a non-interest bearing account. This sum was eventually applied to the Bula debt in 2003. It was submitted on behalf of Mr. Wymes that if it had been placed into an interest bearing account, the amount standing to its credit in 2003 would have exceeded the amount allegedly owed to Ulster. The argument was that this should have been taken into account in negotiating the settlement with Ulster.
87. MacMenamin J. found that the question as to how this money was treated was irrelevant to the case before him. He again noted the absence of evidence from Mr. Wood. There was no legal authority cited to support the proposition that the situation afforded Mr. Wymes a defence or any form of set off to the contribution claim. In any event, in paying the balance due to Ulster in 2006 Mr. Wymes had given up any grounds for defence that he might have raised at that point. He could not now litigate those issues in defence of the contribution claim.
88. Mr. Wymes has failed to show any ground upon which it could be said that this ruling was incorrect.
The Gore & Grimes settlement
89. The Roches were the owners of a company called Crindle Investments, which held their interest in Bula. After the Roches disengaged themselves from the bank proceedings and the Tara proceedings, Crindle sued inter alia the solicitors that had acted for it in those actions. The essence of the case was a complaint that Gore & Grimes had failed to communicate with it in relation to an offer that had at one stage been on the table, and an allegation that they had refused a request by the Roches for access to legal advice that had been given. In evidence in the instant case Mr. Roche said that the solicitors had told them that they would take instructions only from Mr. Wymes. The losses claimed included the costs awarded against them in the proceedings, in respect of which Mr. Roche paid the sum of €3m.
90. Gore & Grimes settled the action with Mr. Roche and his father’s estate, in October 2005, for €2m without admission of liability. This was divided equally between Mr. Roche and the estate. The latter then paid its half over to Mr. Roche, as a repayment for the settlement with the banks.
91. It was put to Mr. Roche in cross-examination that the loss he had complained of in those proceedings related in part to his exposure under the guarantees and subsequent judgments, as well as the costs exposure in the bank proceedings and the Tara proceedings. In so far as the settlement represented compensation for the payments he had made to the banks, the suggestion was that some credit should have been allowed to Mr. Wymes.
92. Mr. Wymes did not, in his own evidence, make a particularly strong case to this effect. He said, in effect, that he had never seen the point of the case against Gore & Grimes. He thought that it was a “difficult” question as to whether he had any legal entitlement to a share of the proceeds but considered that he had a moral entitlement. On appeal, he makes a somewhat confusing argument, the gist of which seems to be that it would be equitable to give him credit because he and Mr. Wood expended time and money in the interests of Bula, while Mr. Roche has become wealthy since that time.
93. The trial judge found that, in circumstances where it would have been open to Mr. Wymes to bring a similar action if he felt he had a cause of action, and where the amount received by Mr. Roche was significantly less than the full estimate of the claim, there was no basis for giving any credit to Mr. Wymes in respect of the settlement.
94. I can see no ground for disturbing this finding.
The limitation of Mr. Roche’s liability under the NIB mortgage
95. Mr. Wymes has submitted that the liability of Mr. Roche under the 1984 mortgage was limited to IR£600,000 and that he should not, therefore, have agreed to pay more than that figure in satisfaction of the bank’s claim. It was also submitted that if Mr. Roche’s liability was thus limited, then, taking into account the payments made by the other guarantors, it could not be said that Mr. Roche had paid more than his fair share.
96. The mortgage deed is dated the 9th March, 1984. It refers to the order of the High Court of the 20th December, 1982, and the affirmation of that order by the Supreme Court on the 1st November, 1983, under which judgment was given in favour of the bank against the mortgagors for the sum of IR£3,912,335.12 with costs and interest “pursuant to guarantees granted by them as security for facilities granted by the Bank to Bula Limited”. It goes on to recite that the mortgagors (Messrs. Roche senior and junior) had requested forbearance from immediate execution of the judgments, and had agreed in consideration of such forbearance to secure payment of the sum awarded (with interest) as further set out. The mortgagors jointly and severally covenanted to pay on demand the amount outstanding on the judgments together with interest.
97. The evidence as summarised in the High Court judgment on this aspect was that it was an “all sums due” mortgage. However, in correspondence between the solicitors for the bank and those acting for Mr. Roche, it was agreed in March, 1984 that the mortgage would be limited to IR£500,000 plus interest to accrue forthwith in the event of the mortgage being called in, provided certain terms were complied with. That limit was altered from time to time, along with stipulations of further lump sum payments as a condition of further deferrals of execution, again as agreed in correspondence. The limit stood at IR£600,000 at the relevant time. The letters from the bank continued to stipulate the terms which had to be complied with and also expressly stated that each deferment granted would “in no way prejudice the position of the bank in any security or rights held by it” or constitute a waiver of the bank’s rights.
98. The evidence of the witness from NIB was that these were temporary agreements, and that the amount that could be claimed by the bank was not limited to the figures referred to here. This was considered to be an issue that related purely to stamp duty, and if the mortgage had to be called in it could be “stamped up” to the necessary amount. When the conditions set in the letters were not complied with they lapsed, as a result of a letter dated 20th September, 1984, and the bank was entitled to enforce the mortgage for all sums due.
99. Mr. Roche said that his legal advice was that at all times the bank maintained the rights it had to execute on foot of its judgment. He did not agree that the specified limits meant that it could not seek more than IR£600,000 (or whatever figure was in place at any given time), saying that his advice was that the mortgage would be “unlimited” if the agreements to make payments on foot of the judgment “fell away”.
100. The trial judge agreed with this analysis and held that on its true construction the sum due on foot of the mortgage had, at most, been subject to temporary limitations which were put in place on the basis of the agreed terms as to payments by the Roches, and which fell into abeyance as of September, 1984 when those conditions had not been complied with.
101. In my view this analysis is clearly correct. The whole point of the mortgage was to provide security for an amount far in excess of the temporary limits, which could only have any force so long as the terms as to the payments were complied with.
Improvident transaction/No prior consultation with co-guarantors
102. Mr. Wymes asserts that the failure of Mr. Roche to notify him of the proposed settlement in advance prevented him from making the case that a better deal might have been struck. Reference is made to O’Donovan & Phillips, The Modern Contract of Guarantee (English edition) as authority for the proposition that co-guarantors should be given an opportunity to show that a proposed settlement would be an improvident bargain. He submits that, had there been consultation, three issues in particular could have been identified - the limit of Mr. Roche’s liability under the 1984 mortgage, the Statute of Limitations point and the manner in which Ulster had dealt with the Rockrohan money.
103. The trial judge found that the payments made by Mr. Roche in the settlements were made under legal compulsion, and under threat of the most serious legal sanctions. Rigorous negotiations had been conducted. They were not mere voluntary or “officious” payments and were not improvident.
104. Apart from this finding of fact, which was based on the evidence of those involved in the negotiations, it seems to me that this is not an argument that is open to Mr. Wymes having regard to the facts of the case. The extract cited from O’Donovan & Phillips does not purport to describe a rule of law, but rather advises that failure to consult a co-guarantor may have the consequence that the latter will defend a contribution claim on the basis that the settlement entered into was improvident. However, in this case the findings of fact negate any grounds for such a defence. The three issues put forward by Mr. Wymes in this respect were all rejected on the basis of credible evidence.
105. Furthermore, the result of the settlements was to reduce the potential exposure of each of the guarantors. In Mr. Wymes’ case, he has gone from a position of being liable to the banks for the totality of their claims on foot of the judgments obtained by them to a position where all that is sought from him is a rateable contribution to the settlement. It is difficult to see how he can be entitled to argue that the bargain was improvident from his point of view.
Conclusion
106. In the circumstances, Mr. Wymes has failed to establish that the trial judge erred in any manner that would justify interference with the judgment and order made in the High Court. I would therefore dismiss the appeal.
