High Court of Ireland Decisions

1. The plaintiff had originally brought proceedings in the Dublin Circuit Court in a Civil Bill dated the 11th December, 1985 and she got a decree on foot of it from Judge Smith (as he then was) on the 30th October, 1986 which was for the sum of £11,250.00 together with interest thereon at the rate of 11% per annum on the principle sum from the 29th November, 1985 to the 29th October, 1996 and costs when taxed and ascertained. Subsequently by an order dated the 17th February, 1987, Judge Cassidy ordered an inspection of the accounts in the Bank of Ireland, 1 Main Street, Dundrum, Dublin 14 and in the Allied Irish Bank, 43 Prussia Street, Dublin 7 and all accounts with the Irish Permanent Building Society under the provisions of the Bankers Book Evidence Act, 1897. On the 8th July, 1996 before Judge O’Connor, the defendant sought an order setting aside the proceedings on the grounds of irregularity and on the basis of fraud and misrepresentation and mistake and looking to extend the time for an appeal. The court ordered that the defendant’s application be refused. This ordered that the plaintiff be at liberty to execute the order of the court dated the 30th October, 1986 and made no orders as to costs. While these proceedings commenced on the 3rd June, 1992 at first the impression might be given that the matter was moving very slowly. However it was perpetually in and out of court. Practically all judges in the High Court have been involved in this case at some stage or other. The matter has also of course been several times in the Master’s Court and indeed on at least one occasion in the Supreme Court. The President of the High Court directed that this court should hear the case and proceed with it to a final conclusion. Because the defendant and possibly the plaintiff felt that they were badly treated in some of the Irish courts and the defendant certainly finds his treatment in the Californian courts unfair, this court has extended every possible facility to both parties to present their case as their advisors deem necessary. While this court might be accused of spending far too much time on the case both parties seem satisfied that they got the opportunity of putting their respective cases to the court. Unfortunately there were occasions when the parties did not have lawyers representing them. There had been about thirty three orders in this case already in the courts in Ireland and there have also been innumerable applications for adjournments. Two weeks before the case started the first named defendant served notice that he wished to rely on the Statute of Frauds. However, it was agreed by both parties that that could only arise after the evidence and after certain findings of fact by this court. As already noted in the Circuit Court the judgment was entered for the sum of £11,250.00 which by 1993 was £17,500.00. The plaintiff has sought to execute it against the defendant but has failed on all occasions. After a short recess and certain terms, the plaintiff agreed to the amendment of the defence and was to provide a further amended reply.

2. The plaintiff has made it clear that her claim was restricted to the four sums mentioned by her Counsel and the court need not concern itself with any other matters.

3. Costello P. dealt with the slander of title action in which the plaintiff had purported to sell land to a Philip Kelly but the defendant claimed he had one acre of it and wrote a letter as a result of which the sale fell through: the deposit was forfeited and it was a number of years before the lands were sold. Costello P. held that the defendant was not entitled to the one acre of land and accordingly the issue remains one of assessment of damages only claim, arising out of the actions of the defendant. However, Counsel for the plaintiff stated that at this stage they were not proceeding with that aspect of the case “ but it is still there ”. It will be held in abeyance. If the plaintiff fails in any money claims the court should adjourn any issue in relations to the issue of the assessment of damages for another day.

4. The first named defendant filed the first defence and also a counterclaim. In paragraph 1 of the latter he states:-

5. He further alleges that the plaintiff maliciously and/or fraudulently and/or negligently intervened in the SIGC claim in the US (which the court will discuss at a later stage).

6. However, this counterclaim was struck out by the President of the High Court in its entirety. As regards these American proceedings, it is submitted on behalf of the plaintiff that this matter cannot be heard in this court because of the aforesaid order of the President of the High Court.

7. Much of the submissions were concerned with various pleadings and with the particulars and also very markedly with the lack of particulars.

8. It is contended that the defendant’s claims are fraudulent, malicious and vexatious. However, it will be seen later that paragraph 80 of the plaintiff’s reply to the defendant on the counterclaim may be relevant when we come to consider the American proceedings. Mr Nolan also argued on behalf of the plaintiff that even if monies are not part of a trust, the decision of the American court in 1989 and the findings of the American court gave a cause of action against Mrs Jackman because it constituted a new cause of action starting in 1989, proceedings in this matter were issued in 1992 . He is merely alerting the court at this stage that this argument might be pursued at a later stage. Gold coins which are now in the possession of this court were claimed by Mrs Jackman before Costello P. as entirely her property. Costello P. therefore directed that she be joined as the defendant and the then President determined that that issue, (i.e. the ownership of the gold coins) be heard in this case and directed amended pleadings. Defence was amended by order of O’Donovan J. on the application of Mr Vincent Browne BL, to add the defence,

9. It is alleged that this paragraph is entirely contradictory to the one recently recited in paragraph 1 of the counterclaim and also paragraph 3 of that document which reads:-

10. In March, 1993 the first named defendant says:-

11. However, as we have seen, he then also pleaded he only offered advice solely on an informal, ex gratia basis arising from their friendship.

12. These statements certainly seem inconsistent. The American judge specifically found that there existed a fiduciary relationship between the parties. Mr Nolan referred to paragraph 6:-

13. And yet he executed a document as a trustee saying that such a debt did exist and that in fact it was to be paid over to the plaintiff, yet here he says:-

14. As we shall see there were in fact initially two trust documents and it is alleged by the plaintiff that the first named defendant is still a trustee of both of them. In his defence the first named defendant concedes that he had entered into a partnership with one Christopher Delahunty (about whom more anon) in furthering a venture (unrelated to the issues of these proceedings) but in the event no such venture materialised. At paragraph 16 the first named defendant pleads:-

15. The plaintiff alleges that should be £36,000, the defendant admits that he received £32,000.

16. It is the plaintiffs case that the defendants jointly opened accounts for their daughter Catriona, purchased coins while the American proceedings were in being. The plaintiff says that it was an attempt by them to avoid any form of tracing by the plaintiff of their funds, although the plaintiff has not actually seen the accounts of either of those banks. As already noted, both parties here dispensed with solicitors initially and acted on their own behalf for several years. Indeed the plaintiff succeeded (by her advisor Mr Hyland) before the President, her application to strike out of the defence and counterclaim. The court than read some of the orders and in particular a Mareva type order granted by Blayney J. on the 4th June, 1992. The next Order by Costello J., as he then was, was made on the 22nd June, 1992. It was made on notice giving the plaintiff the right to inspect certain bank accounts. The first named defendant was restrained from leaving the jurisdiction. He had to deliver his passport, and the third and final order drawn to the court’s attention was particularly drawn and made on the 6th July, 1992, also by Costello J., as he then was, and it altered the Mareva type order allowing Mr Jackman to receive his United States disability pension. Then the court was referred to order of Lynch J. on the 16th July, 1992 ex parte , which allowed the then solicitor for the plaintiff to carry out inspection.

17. On the 22nd July, 1992 Morris J. gave permission for the plaintiff’s solicitor to search the defendant’s house and to hold custody of certain documents. This was blocked so Morris J. made a further Order. On 28th July, 1992 Lardner J. returned the passport on certain terms.

18. In this case it was agreed between the parties in a statement of agreed facts as follows:-

19. The plaintiff and the defendants agreed that the following issues are issues to be determined by this Honourable Court namely:-

20. The first named defendant in his evidence produced a document he alleges purportedly gave him effective control. It provides certain preconditions then it will end up/ the first named defendant to continue as sole trustee representing John Purser and the plaintiff’s interests.

21. It is an interesting aspect of this case that while both parties blame Mr CJ. Delahunty neither side called him or joined him as a party. However it transpires that he is living in this jurisdiction and it is also alleged that he is avoiding a jail sentence in California. Unfortunately Mr Jackman made speeches in replies to questions by his counsel. The court and his counsel tried to contain him and as the transcript shows he wandered far from the issues which were agreed by the parties to be before this court. The ubiquitous Mr Delahunty was the sole owner of Brentwood Securities. There was a meeting of debtors of Brentwood Securities in the Hilton Hotel on the 10th December, 1984. Their claim was made by the first named defendant and indeed by the plaintiff. The court was then referred to a document filed the 7th February, 1985 between the Securities Exchange Commission, plaintiff and Brentwood Securities Limited and Christopher Delahunty, defendants and the facts are summarised in this document (P.51) and for the purpose of this judgment the court has edited the original:-

22. As noted above from 18th July, 1977 to the 13th December, 1984, Brentwood engaged in the business of buying and selling securities for its own account as well as the accounts of its customers. In December, 1984 the staff of the commission received information which indicated that serious improprieties were occurring at Brentwood. Accordingly, the staff commenced an investigation which revealed evidence set forth below that Christopher Delahunty was systematically stealing large amount of money from his clients.

23. In September, 1981, Michael Jackman a customer of Brentwood who at the time resided in Ireland, wired $200,000.00 into Brentwood bank account for the purpose of purchasing US$ 2 million Treasury Bonds on margin. On the same day without Jackman’s knowledge or consent, $5,000 of these bonds were transferred to the account of American Middle Resources Corporation controlled by Mr Delahunty. Also on the same day Brentwood issued a cheque signed by Delahunty for $180,000.00 payable to Delahunty. This cheque was a deposit into Delahunty’s personal bank account. Delahunty then wrote a personal cheque in the amount of $120,000.00 to Wedwudge (sic), Brentwood’s clearing agent for the account of Jackman. Instead of purchasing $2 million worth of US Treasury Bonds on margin for Jackman from the account, Delahunty purchased only $1 million worth. As noted above Jackman, a US citizen during this time was residing in Ireland when he received an account statement and noticed that only $1 million US Treasury Bonds had been purchased and that $80,000.00 of his original $200,000 was missing. Jackman contacted Delahunty for an explanation. Delahunty assured Jackman that everything would be all right. Soon thereafter in November, 1981, Jackman instructed Delahunty to sell his US Treasury Bonds. On the 25th November, 1981 the settlement date, $1 million in US Treasury Bonds were sold for approximately $69,000.00. At Brentwood's instruction and without Jackman’s knowledge a cheque payable to Jackman in the amount of $120,000.00 was issued by Wedwudge (sic) out of Jackman’s account. Jackman never received either a cheque or any proceeds from the sale. The cheque was apparently forged. Again Delahunty offered new excuses about where this money had gone and Jackman hesitatingly accepted. On December 17th, 1981, Brentwood issued instructions to Wedwudge (sic) to wire transfer $40,000.00 from Jackman’s account. Jackman was unaware of these instructions and never received these funds. On the 28th May, 1982, again on the instructions of Brentwood and without Jackman’s knowledge, Wedwudge (sic) issued a cheque to Jackman in the amount of $10,000.00. Jackman never received this cheque. Again it appears that the cheque was forged. During this time “Jackman was still residing in Ireland ”.

24. Later the document continues:

25. It is agreed between the parties that instead of the $69,000.00 the profit was $52,500.00.

26. At the end of the document the following appears:-

27. It would appear that Mr Delahunty did not contest the injunction and it became a permanent one. Mr Jackman insisted that it was he who ranted at the Securities Exchange Commission to produce the results of closing down Brentwood and barring Mr Delahunty for life. Mr Jackman then took up the matter with SIPC which were the compensation board for brokers. By September, 1985, Mr Jackman believed the claim was going to be honoured in cash of $100,000.00 and Bonds $400,000.00 to be paid; the cash within two or three weeks and the securities within three or four months. In May of that year the plaintiff asked to have back the power of attorney given to him. He eventually sent it back. He had had the power of attorney since October, 1981. It was conceded by Counsel on both sides that the decision of Judge Russell went on appeal and was upheld. Subsequently it was appealed to the Supreme Court but that was not prosecuted and was struck out. Mr Jackman believed because he pursued the state authorities and that Mr Delahunty faced criminal proceedings and there is an indictment of the grand jury in October, 1986. It records the set up of a scheme to collect money for his representation. It falsely and fraudulently represented that he would invest all the money entrusted to him by victim clients in the United States Government Security and that he did in fact invest and that they would be safe. On foot of the Grand Jury indictment, Mr Delanunty came on for trial. Mr Delahunty pleaded guilty. None of the counts specifically referred to Mr Jackman’s predicament. He says that they just took two victims out of 131. Mr Delahunty was sentenced on the first count to 5 years with eligibility for parole after serving one third of the sentence and an order for restitution of a specific sum to John McGill, an aggrieved party. Mr Jackman maintains that he has tried to get Mr Delahunty extradited to the United States but was told that if he attempted to do so he would be shot.

28. He alleges his wife purchased the new coins for the benefit of his daughter and her future education. He alleges his wife purchased the coins, put them in a brown envelope and put them into a box. They then deposited them in the bank. The first named defendant was involved in establishing various companies in Shannon mainly to enable Americans to trade in the EU. Most of these were dormant because of the plaintiff’s injunctions. There was a Mareva injunction granted against Mr Jackman in 1992 and it is still extant.

29. A report was handed in from the well known consultant psychiatrist Dr. Peter Fahy who has been treating Mr Jackman and who is very critical of his insurance company and those advising it. He states that underlying the anxiety state, the depression and the other disorders described there is probably some conflict situation or unresolved conflict such as an inferiority complex. He is on continuing medication.

30. Under cross-examination he agreed that he had involvement going back to 1965 in various institutions including insurance companies and the bank where he worked in the consumer loan department, in the mortgages services department, the auto loan department, and the trusts department. He had developed a knowledge of trusts and how they operated during these years. He had become President of a bank which had 2,000 - 3,000 employees in California. He agrees that he has good recall of what has happened but says that he has been exposed to court for the last 10 years. He was essentially a salesman and was quite successful to his own amazement. He had met the plaintiff through mutual interest in transcendental meditation. He agreed that she was not a person who understood the world of finance. He agreed that the year that they met or indeed the next year that she was not competent to handle her own financial affairs.

31. They had met in February, 1975 in Cruise’s Hotel in Limerick. By May, 1975 Mr Jackman clearly knew a great deal about the affairs of the plaintiff and her position. Undoubtedly from a very early stage in their relationship the plaintiff was relying on the first named defendant for financial advise and in fact he was actually dealing long before he had power of attorney, by giving directions to brokers. The witness stressed many times the importance he attached to his social security from America and that he did not wish to be involved in any relationship in which he would be paid. He did not want his social security payments to be threatened. Mr Jackman agreed that £100.00 in June, 1975 would be worth approximately £500.00 in today's money. Mr Nolan Barrister-at-Law, cross-examined Mr Jackman over a large number of days. Mr Jackman in the course of these lengthy proceedings protested on his own behalf. He says he has been in the High Court over 200 times in the past few years and he still does not understand them or know anything about them. Mr Nolan pointed out that four cheques or at least three of them which he denied receiving on the previous day, he now admits he must have received, after he had seen the originals. He was then asked about a document emanating from him to the plaintiff dated 27th September 1976, confirming payment to him of £30,000.00 Stg. He undertook to insure his life so that she might benefit from his death benefit. His explanation is that he wanted to give her some comfort. She had offered him the £30,000.00 as a gift for his services during the previous year and eight months. He says he did not need the £30,000.00. He says that it was a mistake, that in fact it should be £32,000.00. He got this money for investment. Mr Jackman agrees that he did not give back the £30,000.00 or £32,000.00 and says he was prevented from doing so by the intervention of the plaintiff in his claim to SIPC.

32. He believed that the Californian Board were going to pay him in full and that they changed their minds after the intervention by the plaintiff. He agreed that he did not take out the insurance mentioned in this letter but fabulated at length that he took out insurance every time he flew and that he did a lot of flying. He was not able to explain why he inserted the word ‘Sterling’ in the letter when at the time he was getting IR£. The currencies were, of course, interchangeable at that time. He does not know why he put £30,000.00 and he admits it was £32,000.00. Mr Jackman insists that the plaintiff was part of the syndicate but she has categorically denied it. She was not part of or knew anything about the syndicate.

33. Mr Jackman had very clear recollection of dates in the 1970’s. He was able to correct counsel on several occasions in relation to dates. Mr Jackman was very emphatic that there were no discussions between himself and Mr Delahunty about joint partnership or anything of that nature while he was in America and that it only arose later in Ireland. Mr Jackman got a letter from Mr Delahunty on the 5th February, 1977 which he says came as a surprise to him as there had been no mention of a partnership up to that time. The quotation was:-

34. He was referred to the agreement entered into on the first day of January, 1977 between Christopher J Delahunty and Michael C Jackman both of Santa Monica, California. He had insisted that the discussion about partnership took place at the end of 1977. The witness did not give any clear explanation as to the reference in the letter of the 5th February to partnership. He denied he ever entered into a partnership with anyone, even with Mr Delahunty, then he agrees that he signed the document and says the partnership never developed! Mr Jackman purchased two copies on Partnership Law by Westwood and sent one to Mr Delahunty. He says that he did this because of Mr Delahunty’s constant questions about partnership agreements but it “had nothing to do with me”.

35. The idea of a partnership agreement was Mr Delahunty’s but I did not accept that it was going to be with me. He was interested in the partnership per se . He stated -

36. He later said there were vague discussions, no precise discussions on what the partnership was about. Mr Nolan then drew Mr Jackman’s attention to his own letter to Mr Delahunty:-

37. Under pressure he agreed that he had a joint account in 1977 with Mr Delahunty in the Bank of America in Dublin. He agreed that it was a joint account but says that it had nothing to do with partnership. He was referred to hand-written documents about the partnership that its business shall be to invest and that was signed by Michael C Jackman and Christopher J Delahunty. He insisted that this was looking for a vehicle for Mr O’Brien. He keeps denying that he had any involvement in a partnership but was listening to Mr Delahunty yet he sent him a book on Partnership Law and he enquired about life insurance policy “for the protection of our clients in the event of your (Delahuntys) death.” He was then referred to another letter emanating from himself and his wife where he asked if “ we” can proceed with investment in Canadian Mortgage. Mr Jackman was then cross-examined about the evidence he had given in the SIPC proceedings in California. It is obvious from the transcript that his evidence before this court on material points differed from what he had given before Judge Russell. He excuses himself on the grounds that he has been ill continuously since 1971.

38. He also admitted that he had got three cheques from Mr Delahunty which were apparently all cashed on the one day. He assumes they were to pay off a mortgage due by Mr Delahunty. He was then asked about various cheques stamped by the Bank of America between the years 1976 and 1978 totalling £8,862.92 which were paid by the plaintiff to him. The witness does not deny that he received the many cheques put to him by Mr Nolan but while he had a good memory for many details he could not recall a lot of these transactions.

39. Mr Nolan spent many days testing the memory and the accuracy of Mr Jackman’s evidence. Mr Jackman suffers from diabetes but is not insulin dependant and obviously has suffered from nervous complaints. However taking all that into account this court is not happy with much of his evidence. He agrees that he was sent a document from Mr Delahunty which says

40. One letter states:

41. Apparently cheques over $5,000.00 were referred to the Federal Reserve. This was to protect against drug money being laundered. Having sworn that he received no money from Mr Delahunty it is obvious that he did in fact receive a number of cheques from him. He protested that he had never read the partnership agreement which was produced to him in court but agrees he signed it. He maintained that he had never read the document not even when he came into court. He was referred to paragraph 111 (2) of the agreement which reads:-

42. When he was asked about what exactly that paragraph meant he disagreed with the interpretation because he said, “I never read it before”. Before Judge Russell he had sworn twice that he did not sign it. However, he was looking at an unsigned copy when he was before that court. He now accepts that the copy produced in this court was signed. This court finds the evidence of Mr Jackman on this point unsatisfactory to put it mildly and believes there was in fact an agreement for partnership between the first named defendant and Mr Delahunty. He did eventually agree before the plaintiff actually met Mr Delahunty that he had discussed the affairs of Jobling Purser and her mother. It transpired that certainly Mr Delahunty was advising the first named defendant about the affairs of Jobling Purser company and particularly the plaintiff and her mother. He kept protesting his integrity that he takes the oath seriously and explained the discrepancies between his current testimony and that before Judge Russell in California was due to the fact that he was very ill, mentally ill. “Anxiety neurosis is a mental problem”. He got £3,000.00 from the plaintiffs sister. Later the plaintiff refunded her sister this sum. The first named defendant was confused in his evidence about this particular item. He explained that it would not be possible to withdraw the £3,000.00 as there would be a loss involved and therefore the plaintiff should pay the £3,000.00 once her sister started demanding it back. Mr Jackman got caught out by Mr Nolan in his careful cross-examination on many points. It is not necessary for the court to deal with them in any great detail. Mr Jackman said that nobody persuaded Judith Jobling Purser to do anything. “I did not persuade the plaintiff ever in my life”. Mr Jackman was then asked about a withdrawal of £10,000.00 by the plaintiff on the 7th April, 1978 from Norwich Union Funds. He said he did not receive it. He knows that for a fact. He then told the court that he had given the US$50,000.00 to Mr Delahunty and that he invested them in Cattle Feed Fund or so he said. He agreed this was not a trust fund. The fund was a tax shelter fund for rich Americans. He would not agree that that was not the purpose for which he gave him the money, namely for the purpose of investing in dollar securities. However, that is what he told SIPC but says that was a mistake and that he made a lot of mistakes at that time. He states that he was totally traumatised by the intervention of the plaintiff in the SIPC case. His mental health was bad. He agrees that he may have made a few mistakes, but had been correct in most things. He just doesn’t know. Apparently Mr Delahunty had invested the $50,000.00 in about eight different programmes. He persisted that the $50,000.00 was a gift and that he wouldn’t take it. It was not a breach of trust, it was her own private money and he invested it on behalf of the plaintiff. Mr Jackman contradicted himself on a number of issues such as involvement of Mr Delahunty and himself in ACS Factory in Shannon. He blames another barrister whom he had retained for two years and nine months for throwing his papers all over the place, and that explains why he didn’t have certain documents. He did not receive anything from AAMR, however, it was proved that in fact he did. He then disputed it on the grounds that he thought it meant cash when in fact it was a cheque. The plaintiff was agitated during his cross-examination and was given breaks whenever required. He denies he has told lies. Some of his testimony is inconsistent with what he gave in the American Court. He said this was due to trauma due to the intervention of the plaintiff who caused him so much anxiety and lost him so much money. He produced a CV prepared by himself in which he describes himself as follows:-

43. He does not believe that that is in fact true although he prepared it himself. He agrees he helped with the first trust to get the plaintiff’s mother out of a problem and he then was appointed to the second trust. He was then referred to a letter of the 9th July, requiring £102,500.00 given from the trust fund to the plaintiff to deposit in her name and Mr Jackman’s in AIB Prussia Street, Dublin, subject to a sub trust. If the sub trust was not created the money would be returned with interest to the original trustees. On the same day the money was then transferred from this new deposit account into Jackman’s own deposit account. He denied that he authorised this transfer. He then had to retract his evidence.

44. He agreed that the money that went to the United States was the money from the AIB account and the question for this court is whether or not it was free from a trust. He took the money from the Chase Bank £15,232.96. He agreed that the $200,000.00 was the plaintiff’s money and that it was to invest in US Treasury Bonds. He blames all his misfortunes on Mr Delahunty who tried to kill him twice (but he never sought the assistance of the police). Once he was thrown off a four storey building.

45. However, later he makes the point that he did not understand the word “ owe” and he made a mistake. When it was pointed out that he had made a mistake he said the plaintiff did also. He was referred again to the depositions when he was asked for the origin of the $200,000.00 deposit at Brentwood. He agreed that this was from AIB and was totally the property of the plaintiff. However, his deposition in the American Court suggested that at least three people were involved in making up this fund. He agreed in the American Court that he owed money to several people and that he owed Juliet £102,000.00 and approximately another £30,000.00 but added “but Juliet also owes me”. In this court he agreed that that was his testimony and he stood over it. He agrees that he was asked in the American proceedings the purpose of the transfer and says “She was the beneficiary.... was to loan me the money interest free and that I could do exactly as I pleased with the funds because I was totally trusted by Juliet”. He agrees that the $200,000.00 were transferred from AIB and actually transferred into Mr Delahunty’s account. He alleges then that Mr Delahunty withdrew a $180,000.00 cheque for himself out of the Brentwood account and forged Mr Jackman’s signature on it. He also stated that he misinterpreted the questions asked in the American proceedings. In his American deposition he agreed that of the £102,500.00 some of the money went into ACS and it started to happen in November/December, 1981 but he now says that is not so. He stressed that these were not lies in his depositions but merely mistakes. In his American deposition he agreed that some of the money put into ACS’s was the plaintiff's. He made the point that she had the majority in ACS, namely 45%.

46. It is quite clear that his evidence in America does not coincide on many points with his evidence here. He was obviously trying to get as much money as he could, understandably from the American fund, and he blamed the intervention of the plaintiff for his failure to achieve that goal. Mr Jackman agreed that the money belonged to the plaintiff and was originally intended to be invested in securities then he subsequently said this was not true and that he could put it in anything he chose. Mr Buckley of A & L Goodbody stated that most of the instructions came not from the plaintiff but from Mr Jackman who because he was on total disability could not be described as a ‘financial advisor’. Mr Jackman’s attention was then drawn to two documents which he has signed and has the words ‘Financial Advisor’ under his name. He was referred to a letter of the 10th November, 1981 in which he was offered a partnership in Brentwood Securities Inc., on his arrival in U.S. in March, 1982.

47. Then there was the extraordinary position of the plaintiff and Mr Jackman who got Mr Buckley, the solicitor, to prepare documents stating that there was a loan to ACS. There is an assignment of debt of £118.527.00 which is allegedly owed by ACS to Michael C Jackman and the plaintiff as trustees as being assigned to the plaintiff absolutely and it is signed by the plaintiff and underneath ACS Teoranta acknowledge receipt of the notice of assignment of debt. It is signed on the 15th September, 1982 by Mr Jackman for ACS. Mr Jackman told Mr Buckley that in fact there was no loan outstanding. This is denied by Mr Buckley. Then a letter was produced to Mr Jackman which had been drafted or at least signed by him to Mr Delahunty in which he mentions “This represents a return of my $200,000.00 to the extent that it is has not already been paid”. Through a great deal of investigation it is not clear what exactly that meant. He says that nothing has already been paid. He points out he didn’t write it. It was typed but he agrees that he signed it. He was then asked about his interest in AMR as mentioned in correspondence but he stated he had nothing to do with it. Under pressure he agreed that what he had written in the letter namely that he has “invested a lot of money in ACS and in AMR” was untrue. The first named defendant was very confused about a letter which apparently was drafted by a lawyer employed by him. He alleged that he was intimidated by Mr Delahunty and wrote that letter at his dictation. However, in his own discovery it would appear that his own lawyer drafted this letter and gave it to him and made suggestions as to alterations he might put into it . The court warned him about perjury. He clearly received advice from a lawyer who sent him a draft letter. However, Mr Jackman swore in this court that he did not have anything to do with the drafting of it. The next day the first named defendant, Mr Jackman had apparently in error taken a double dose of valium and was unfit to attend court although he was in the building. It was then adjourned to a date to suit both parties. So as not to waste time and with the agreement of both parties, Mr Brian Nolan was called. This witness is a first cousin of Counsel appearing for the plaintiff so the barrister very properly withdrew and left the cross-examination of this witness to his solicitor. The barrister maintained that this witness was called primarily to embarrass counsel.

48. Mr Nolan said he had known Mr Jackman since the 1970’s and had invested $50,000.00. He stated that he was not really investing in any particular commodity but was investing in Michael Jackman and that he regarded his money that had been invested as lost, but he felt that he was owed in a moral sense a percentage of what he invested. He was aware that there was a number of other people who had invested in similar circumstances; however, he had not given a power of attorney to Michael Jackman.

49. Because of the complexity of the issues, the court requested Counsel to prepare submissions in writing to deal inter alia with the evidence which indicates the existence of a partnership and the duties of a partner one to the other in relation to funds entrusted to one or other of the partners. Was the money transferred by Mr Jackman to the US Trust Funds? The court wanted a trail of specific sums also. The court wished to be addressed on the question of the statute of limitations since it was pleaded. The court was anxious to deal with it as a preliminary matter but counsel on both sides pressed that it be left until after the evidence. Submissions could not be prepared until after the transcript was available. The final transcript was received during August.

50. He has chronic anxiety neurosis since 1971. On the 19th day of the trial, Mr Jackman was still in the box when a Western Union telegram from his wife, apparently to SIPC, states clearly that $200,000.00 deposited in Brentwood in September, 1981 was not part of any 1950 settlement (2) where The claim against Brentwood is filed on my own behalf (3) Under no circumstances should any monies due to me from my claim with SIPC be given to any other person or persons. He maintains that the plaintiff has changed her mind completely. When she was dealing with SIPC it was trust money but when it was transferred to America in 1981 it was out of trust. He persisted in stating that he was denied access to the plaintiff’s discovery. However, his counsel accepted that his solicitor and counsel have seen all the discovery and have got copies of everything they wanted and the copies were of course available to their client. However, Mr Jackman insisted that the documents and copies thereof were not made available to him, even by his own solicitor.

51. Mr Jackman, an American Citizen, invested in America but could not let mere Irish Citizens do it, without the consent of the Irish Central Bank. Thus money had to be in his name and that is why he pursued the matter in his own name against SIPC. That is why he pretended to that organisation that he was the full owner of all the monies involved. Mr Jackman complains at the time that in fairness he made lots of speeches. Frequently not on the point phrased by counsel. He complained also that this was the first opportunity he was getting to state his case. He complained that he has filed a case against the State because of the way he was treated. He was asked why his wife closed her account just two weeks after Judge Russell had come to a conclusion against him in his SIGC claim. He was then asked about what Judge Russell had said in the SIGC case namely:-

52. Basically Judge Russell did not believe him. He denied that he ever had a joint account with Mr Delahunty other than the Bank of America one which he allowed Mr Delahunty to use, then he withdrew all his money from it and left it entirely to Mr Delahunty. He agrees that there was a partnership account in the Bank of America in Grafton Street, he recently signed the partnership to Mr Delahunty to produce letters only in relation to one project name needed to set up a bank to exchange money. Then Mr Delahunty was involved in a car accident and was completely out of commission for a long time. He strongly denies that he ever took advantage of the plaintiff and says that when his daughter was expected he went with her brother to India where she had become ill and he went to California with her before that in 1978 to rescue her brother who had similar problems. He was to give him money to go on his own but then decided he was coming with him because he was not well enough to travel. Since then she has sued him for the £7,500 that he never got from her. He has appealed that. There is a mystery regarding this appeal. He was advised by the trial judge, his Honour Judge Kieran O’Connor to appeal. There was apparently a file. Despite diligent searching by this Court’s Registrar and several other people at the Central Office the file cannot be found. When he was asked did he hold the $200,000 dollars and other trust monies as a nominee for the 1950 Trust until a sub-trust was created, he answered:-

53. Mr Jackman had an account in Merrill Lynch in London but it was in dollars that was held for the gain of his investors. He apparently was not paying tax in America, England or Ireland. It was pointed out to him but he insisted that he was banned from travelling, that he was free to travel but on conditions but would be available to the court within fourteen days from date of notification from his solicitor of the plaintiff’s intention to cross-examine.

54. As to “your assets” the company it was suggested to him was not prevented from trading but was prevented from reducing its assets below £150,000. The injunction restrains a company from reducing its assets below a certain figure. He repeats that he didn’t delegate any responsibilities as a trustee. He said that and other money were taken out of his account by cheques payable to him and forged by Mr Delahunty. In other words Mr Delahunty stole the money from him.

55. The court pointed out that it needed to be addressed on the facts and on the law particularly on the question of two trustees abolishing the trusts and then what happened to the trust fund and why the plaintiff is claiming the trust fund when she has in fact given the defendant power of attorney over all her estate and she herself abolished the trust she transferred all this to the first named defendant and he says it is not trustee funds at all.

56. Did Ms. Jobling-Purser give Mr Jackman the money for a specific purpose? In re-examination he gave a history of the establishment of ACS with grants from Údarás in Galway and efforts to establish bank meetings with the Chairman of the Board of the Equity Bank in Limerick. In May, 1980 Mr Delahunty had a major automobile accident and everything just collapsed then. Letters which had previously been opened in part were now opened in full. The first was a letter from Brentwood Securities Inc. dated the 10th of November 1981 signed by Mr Delahunty part of which reads “similarly you will be admitted as a partner of the firm on your arrival here in March 1982”. Mr Jackman insisted that SIPC were going to pay him in full in cash and bonds in other words 100% of what had been appropriated “we wouldn’t have lost anything on the investment of $200,000 dollars we would have a profit of about four times...approximately three to four times that 300% - 400%.

57. The plaintiff’s case is that she gave money for the purpose of having it specifically invested in a specific fund and this was not done. It was mixed with other money and was transferred to the ubiquitous Mr Delahunty.

58. After a very long delay in this very protracted case submissions on the evidence and particularly on the relevant law were made by the two excellent counsel (who have throughout shown a fantastic knowledge of all the documentation). The court is extremely grateful to both of them for all their assistance and their submissions. Before the matter came to this court there were twenty-three Orders already made contained in a separate Booklet of Orders. A Mareva injunction was granted. Lardner J. subsequently altered it but this did not prevent the defendant from leaving the country nor did it prevent the institutions known as Amtrade International Limited or STE from trading. The order merely prevented them from reducing their assets below the sum of £350,000 in this State. In his judgment delivered the 12th January, 1995 Costello P. made a number of findings of fact. These included that the first named defendant had become a financial adviser to the plaintiff; that the first named defendant was handling her investments; that the plaintiff obtained advice from the first named defendant in relation to family trusts; following the said advice various appointments were made by the trustees of the settlement; that monies the plaintiffs got from the trust together with other monies were given to the defendant and on the advice of the first named defendant the plaintiff allowed substantial sums of money to be invested in Brentwood Securities and that the financial arrangements entered into by the first named defendant went disastrously wrong. In the course of his considered judgment Costello P. says:-

59. Counsel and the respective solicitors are tired of clarifying the issues of what had become an extraordinary complicated case. These have been set out earlier in this judgment where documents edited “agreed facts - issues” is recited. The judgments of Judge Russell have been agreed in material respects as set out in paragraphs 10, 11 and 12 of the agreed facts and issues. It is argued by the plaintiffs that there is one issue which is not open to this court to determine; namely whether or not the facts found by Judge Russell and the conclusion of law found by him in the US Bankruptcy Court are well found and made. It is the submission of the plaintiff that this court does not have jurisdiction to confirm or in any way alter or comment upon the judgment of Judge Russell. That is perhaps stating the matter too broadly. There is no doubt the court accepts the matter was heard by Judge Russell. He made certain findings, and made certain orders. They are entitled to the respect due under the comity of courts. It is also clear he gave the matter a very full and considerate hearing. However this court is not bound by the decision of Judge Russell. It must make its own decision on the evidence produced here which of course includes the agreed judgment of Judge Russell. It is also argued that this court cannot in anyway determine whether it was inappropriate on the part of the plaintiff to intervene in the SIPC proceedings since that is a matter clearly for the jurisdiction of the American courts as to who could or could not intervene in those proceedings. In the opinion of this court that is stated too broadly. There is a presumption that the American court acted in accordance with law and correct procedures. There is no doubt that the American courts on the facts before them had to decide whether or not it was appropriate for the plaintiff to intervene in those proceedings. However this court on the evidence produced here is quite satisfied that it was appropriate for the plaintiff to intervene in the American proceedings. As a result of her intervention she has received $20,000 from the judgment of Judge Russell and is prepared to give credit for that amount against whatever this court determines is the liability of the first named defendant. While the behaviour of the plaintiff was certainly unusual if not bizarre she confirmed that the monies were at all time part of a trust. She is supported in this by the evidence of Mr Buckley, Solicitor Messrs A& L Goodbody who confirmed for the purpose of various letters produced to the court to transfer monies to the plaintiff and the first named defendant not yet trustees of the plaintiffs sub-trusts to say that they both acknowledge that they are holding the monies on behalf of the children’s trust. If it were not possible for any reason to go ahead with the sub-trusts he would return the money with interest. He is a well known and respected solicitor and he confirms that at no stage were the monies free of trust.

60. The first named defendant’s evidence lasted six days.

61. In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly or without belief in its truth or recklessly without caring whether it be true or false ( Derry & Ors v. Peek , (1889) 14 App Cas 337). Mr Nolan in his written submission listed a number of conflicts in the evidence of the first named defendant. The list is certainly not a full one. The court quotes from the submission:-

62. In Book 12, while admitting that he signed the partnership agreement in 1977 he denied that he had any involvement in the partnership with Mr Delahunty (book 12 page 30 onwards) yet when his deposition in the SIPC were put to him (page 50) where he denied that he signs the partnership he alleges that he was very ill.

63. In relation to cheques received from Mr Delahunty he initially denied that he received any cheques but then in reference to correspondence from Mr Delahunty in April of 1977 could not comment on how many cheques he received (book 15 page 30-38).

64. While on the one hand he is stating that he did not have a joint account with Mr Delahunty he accepted on production of cheques that Mr Delahunty had the right to draw cheques from his Bank of Ireland Account (page 27 of book 15). In book 16 the first named defendant concedes that he deliberately told untruths in the SIPC proceedings and he goes on to state that others have done likewise and more particularly Mr Buckley (book 16 page 15 and page 118). Undoubtedly the onus of proof in the case of fraud lies firstly on the plaintiff but it is on the balance of probabilities. It can be inferred from the facts submitted or proved. The required inference must of course not be drawn lightly or without due regard to all the relevant circumstances including the consequences of fraud. ( Banco Ambrosiano S.P.A. v. Ansbacher and Co ., (1987) ILRM 669, per Henchy J. p.672) Mr Nolan submits that the pertinent frauds seem to be as follows:-

65. It is also argued expressly the defendant was a constructive trustee where “....when a beneficiary has a vested interest in his trust fund so that he has a right to payment of the income, the trustees must at all reasonable per times .. give him full and accurate (emphasis added) information as to the amount and state of the trust property..... (Kenny J. in Chaine-Nickson v. The Bank of Ireland [1976] I.R. 393 at p. 396). In the current case it is very strongly suggested that the beneficiary concurred but there has been a fraudulent breach of trust. She was agreeable to the break-up of the trust. She gave the first named defendant the power of attorney and trusted him completely. The position is stated clearly in Keane Equity and the Law of Trusts in the Republic of Ireland (1988), paragraph 10.25 where the author (now Keane C.J.) states:-

66. Mr Nolan submits in relation to the £36,000 (and the defendant says £32,000)

67. The first named defendant made a representation to the plaintiff that this sum was invested by him for her sister in a U.S. bank account in dollars. Further the first named defendant represented to the plaintiff that if the investment were cashed the plaintiff’s sister would lose on her investment and that it would be preferable for her to take over the investment and pay off her sister. On that representation she did as she was asked. However no evidence whatsoever has been adduced by the first named defendant to support this contention. No account has been shown and no independent documentation has been presented. Accordingly it was a false representation made knowingly or alternatively made without any belief in its truth. In point of fact no evidence whatsoever has been furnished by the first named defendant in relation to where that sum went. Accordingly the representation was untrue and dishonest.

68. The court then concerned itself with the question of the Statute of Limitations pleaded in an amended pleading. Section 44 provides:-

69. Fraud required by s. 44 of the Statute of Limitations amounts to dishonesty. See Murphy v. A.I.B. [1994] 2 ILRM 220, per Murphy J. Under s. 71 of the Act a period of six years is fixed for the purposes of bringing an action based on the fraud of the defendant or its agent or the right of action as concealed by the fraud of any such person. But the period of limitation shall not begin to run until a plaintiff has discovered the fraud or could with reasonable diligence have discovered it. Fraud covers conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other. It is alleged that as there was a special relationship between the parties it would be inequitable to allow the defendant to rely upon the statute.

70. The definition of partnership is contained in s. 1, Partnership Act, 1890 and it is as follows:-

71. It does not have to be in writing.

72. This court is quite satisfied from the evidence of the first named defendant and from the various documents including the correspondence between the first named defendant and Mr Delahunty and the unsigned partnership agreement and the fact that there were to be small cheques (so as not to attract attention). The letter of the 1st July, 1978 which uses the term Jackman and Delahunty in relation to its investments and the management by the first named defendant and Mr Delahunty of the Bank of Ireland bank account in Grafton Street support the case that this was a partnership. The plaintiff was totally unaware of its existence. Also the findings of Costello P. in these proceedings which might give rise to res judicata but this court is not deciding this power.

73. The defendant’s submissions prepared by Mr Boyle were very able argued by him. He states that clearly there was a good friendship between the plaintiff and the first named defendant from 1975 until at least 1985. He puts a gloss on the statement by the first named defendant that the plaintiff was not capable of managing her financial affairs. He says that he is clearly referring to investments. He says that the plaintiff was fully capable in day to day financial matters. He points out that Mr Buckley believes she understood the meaning of the sub-trust in 1981 and she understood what she was doing when she entered into the assignment that he drafted in September, 1982. He says that she provided an intelligent and robust response in cross-examination. This must rule out any suggestion of her being a vulnerable person taking into account the many fluent letters she was able to write unaided. Her dyslexia is mild. She has a strong personality and she became the first named defendant’s mentor. She was concerned about his health and rehabilitation. Indeed she brought him to Donegal in order to help him recover his self confidence. He alleges that there was never a fiduciary relationship. The first named defendant’s involvement in her business was informal. He concedes that his client received monies from the plaintiff over the years over and above what she is now claiming but he says that these were for expenses. The relationship was very informal with the first named defendant. He did not give her receipt as we have seen for the sum of either £32,000 (she claims is £36,000). Her dealings with the first named defendant concerning the sums of £10,000 and £3,000 were similarly informal. She never referred to these sums in her letters to the first named defendant and did not sue for them even when she was bringing other proceedings in late 1985. This uncertainty concerning the original donation is hardened into a claim only in 1992 with these proceedings. The plaintiff has unfairly used the judgment she obtained against the first named defendant in the Circuit Court proceedings in 1986 in an attempt to show him in a bad light in these proceedings. However the first named defendant is insistent that she did not tell the truth in the Circuit Court of the alleged loan of £7,500 and took advantage of the fact that the first named defendant was sick in California and could not attend the hearing. She has a tendency to blame others for her troubles. She sued her own mother and siblings as well as the first named defendant but she never pursued these proceedings. She also sued her solicitors A&L Goodbody arising out of the same matters but did not pursue these proceedings. She is bitter towards the first named defendant and sees opportunism in almost every aspect of their former friendship. This and the multiplicity of court proceedings shows a lack of respect and balance in her judgement and recollection. She changed her story regarding the first named defendant’s claim to a site in her farm in Co. Wicklow. At first she denied that she ever promised it to him but at the hearing before Mr Justice Costello she admitted she had. His finding was that she did promise it but that his claim was unenforceable. That finding vindicates the first named defendant’s stance. Her false claim that she had not promised the site to the first named defendant greatly damaged him.

74. The plaintiff’s evidence is that she withdrew £36,000 in cash from Norwich Union in September 1976 and gave it to the first named defendant to invest. She says that the first named defendant suggested Canadian Government Bonds (day six p.p. 16-17). The defendant’s evidence is that in July she offered him £32,000 or £30,000 as a gift for his work on her behalf which he felt he could not accept and said he would invest it for her. He said she agreed to this. He says that it went into an investment fund with his money and Mr Brian Nolan. It is common case that the first named defendant took $50,000 or the equivalent thereof to California in November, 1976 and shortly before he returned to Ireland he gave a cheque for that amount to Christopher Delahunty to invest with a promise of a return of 28 per cent. The first named defendant says that this sum was merely a part of his overall investment fund and is not directly identifiable with the plaintiff’s investment. She contends that it was her money converted into U.S. Dollars. The first named defendant says that that investment was turned into shares in ACS in 1980 and was eventually lost when that company finally collapsed in the mid-eighties.

75. On either version the first named defendant was to invest the money. If investments in Canadian Bonds was an essential term rather than a preferred option the first named defendant would have been in breach of their agreement in January, 1977 by giving the money to Christopher Delahunty. The plaintiff’ says that she discussed her investments informally with the first named defendant. It is significant that when she came to complain to the first named defendant about the loss of this investment in her letters of the 28th May, and 30th August, 1985 she did not refer to investing in Canadian bonds. In the letter of the 28th of May she referred to a promised investment of 26%. In the letter of the 30th August, 1985 she says “your account has always been that the IR£36,000 in 1976 were given to Delahunty before you left America in 1977”. This suggests that if Canadian dollars were ever mentioned she had accepted instead investment with Delahunty. Accordingly she cannot now claim that that investment was in breach of her agreement with the first named defendant.

76. The plaintiff says that she withdrew £10,118.32 from her account with Norwich Union on the 7th April, 1978 and gave £10,000 by endorsed cheque (day 7 p69 and p74) to the first named defendant for investment in Merrill Lynch and retained £118.32. It seems however that Norwich Union record only one cheque (day 8 pp57-59). The first named defendant denies that he ever received this money. The court only has only her oral evidence and her recollection that she paid it to the first named defendant. It is submitted that the court should be cautious about accepting such evidence at such a remove of time. The plaintiff did not refer to this sum in her letters to the first named defendant especially he initial letters of complaint of the 28th May and the 30th August already referred to. In the second of these letters she says:-

77. It is not credible that she would write this letter if she believed the sum of £10,000 should have been invested in Merrill Lynch.

78. The plaintiff says that in August, 1977 her sister Caroline wanted a return of a sum of £3,000 that she had invested with the first named defendant. He said there would be a small loss for Caroline if this happened but the plaintiff says that the first named defendant suggested she took over the investment and paid off Caroline by cheque dated the 29th August, 1977. The first named defendant admits that Caroline gave him £3,000 to invest which he put into U.S. Dollars so as to the question at that time which was would there be a loss, he said there would be. There was no agreement with the plaintiff along the lines she suggests. The existence of Caroline’s investment and the calculation of the loss are recorded in documents produced to the court but the alleged agreement is not and the plaintiff did not refer to it when she came to complain to the first named defendant concerning her losses in her letters in 1985 already mentioned. That the first named defendant owed the plaintiff’s sister Caroline was a chose-in-action. Under s.28(6) of the Judicature (Ireland) Act, 1877 it can only be assigned in writing under the hand of the assignor (i.e. Caroline). Moreover the section requires express notice in writing to the debtor. As neither is present here the plaintiff cannot recover.

79. If the First Named plaintiff was a constructive trustee of the money for Caroline the benefit of the trust could similarly only be outlined in writing.

80. This sum consists of

81. The submissions continues:-

82. The evidence of the plaintiff, the first named defendant and the bank officials all shows that thereafter the money was transferred to an account in the joint names of the plaintiff and first named defendant and from there to accounts in the sole name of the first named defendant. It is also clear that this was done with the consent of the plaintiff and that the purpose of this was to facilitate that the intended investment of the money in U.S. Treasury Bonds in the United States. The sub-trust was dated the 2nd September, 1981 and was produced in evidence. There is a dispute as to whether it was in fact signed on that day. This is immaterial to these proceedings. The plaintiff’s case is that the money passed from the trust to the sub-trust. The defendant’s case is that whatever and whenever the paperwork the plaintiff was entitled to and did bring the trust to an end or else be concurrent in breaching the trust or the sub-trust. Mr Boyle continues:-

83. It is further submitted that in agreeing to send the money to the U.S. for investment in U.S. Treasury Bonds the plaintiff brought the 1950 sub-trusts of the 1950 Children’s Settlement to an end. The creation of the sub-trust as Mr Buckley admitted was intended as a device to avoid a tax liability for the plaintiff and he conceded that she was the beneficial owner of the fund. By releasing it to the first named defendant in America she certainly behaved as if she owned it.

84. The plaintiff knew and consented to the movement of money into accounts in the sole name of the first named defendant. She knew it was going to be transferred to the USA and invested there in Treasury Bonds. The first named defendant put the money in Mr Delahunty’s firm-that in itself is perfectly in order. The plaintiff had met and knew Mr Delahunty since 1977/78. There is no reason to believe that she would have at that time have objected to his firm dealing with her investment. It is well established when a trustee without negligence is robbed of trust property in his custody, he is not liable for the loss ( Job -v- Job [1877] 6 Ch D 562). The plaintiff does allege that there was a partnership between the first named defendant and Mr Delahunty and that her money was used for its business without her knowledge or permission. As evidence of this partnership she points to the undated written agreement signed by Mr Jackman and Mr Delahunty in which it is stated on its face to come into force on the 1st January, 1977. She also asks the court to draw an inference that a partnership existed from miscellaneous hand-written notes of the first named defendant and of Mr Delahunty and from the fact that the first named defendant and Mr Delahunty had a joint account at Bank of Ireland, Grafton Street in 1977/78. The first named defendant’s evidence was that he did not discuss partnership, that the agreement was not acted upon and that the partnership along the lines envisaged in the document never developed. The first question posed by Mr Boyle is that if it is an alleged partnership, could that make the first named defendant liable for Mr Delahunty’s wrongdoing. He submits that that cannot be the case because it is common case that the plaintiff was not dealing with a partnership. However the plaintiff may not have been dealing with a partnership. The real question is whether if it was a partnership, Mr Jackman is liable for Mr Delahunty’s wrongdoing, did the first named defendant misuse the money either alone or in conjunction with Mr Delahunty so the alleged partnership is governed by the law of California. The court has no evidence of Californian law in relation to this alleged agreement. It is submitted that the first named defendant cannot be liable to the plaintiff for the wrongdoing of Mr Delahunty under any principle of partnership law.

85. The claim against the first named defendant for breach of contract, breach of trust and negligence became statute barred six years after the cause of action accrued. As more than six years passed before these proceedings were instituted on the 3rd June, 1992 the plaintiff must rely on some rule that extends or suspends the running of time under the statute.

86. The first named defendant said that he told her about the problems with the American investment in the Autumn of 1982 but she denies this. However on the 28th May, 1985 the plaintiff wrote an angry letter to the first named defendant complaining about the non-payment of her money and in particular referring to the sum of £36,000 and the money transferred in September, 1981. On the 30th August, 1985 she wrote another letter in a similar vein. On the 30th September, she made a competing claim in the SIPC proceedings and wrote to Mr Steckinger, the Attorney for SIPC, on the 20th and 26th November, 1985 challenging the first named defendant’s right to claim the missing $200,000. On the 29th November, 1985 she issued Circuit Court proceedings against the first named defendant claiming repayment of an alleged loan made in 1978. On the 18th January, 1986 she wrote another letter to Mr Steckinger setting out her complaints against the first named defendant. She received a notification date on the 14th February, 1986 from SIPC that her claim had been rejected. The SIPC proceedings including the appeal did not suspend the running of time. He argued that the test is whether exercising reasonable diligence the plaintiff had sufficient information to initiate proceedings not whether she may recover through a regulatory compensation scheme. The existence of that scheme is not a matter coming with s.71(a) of the Statute of Limitations to suspend the running of time and the plaintiff did not claim that she made a mistake within section 72. In fact the first named defendant’s clear evidence is that he had got an agreement from SIPC to pay his claim in full. The plaintiff was aware of that when she entered a competing claim whereas that gave SIPC, a body which the defendant pointed out is notorious for not paying compensation, an excuse to reject the claim, consequently she is the author of her own loss in that respect. He argues the section applies only to express trustees, there is no application to constructive trustees. He submitted that the plaintiff cannot rely on s. 44 to prevent the statute from running in respect of personal monies advanced to the first named defendant (i.e. The sums of £36,000 in 1977, the sum of £10,000 in 1978, the sum of £3,000 in 1977 and the sum of £15,000 and £4,000 in 1981). He further submitted that the plaintiff had not proved fraud by the first named defendant and is not entitled to judgment for fraud so that s. 44 does not apply to the monies that originated in the 1950 trust. In the case of Superwood Holdings plc. v . Sun Alliance & London Insurance plc . [1995] 3 I.R. 303, Denham J. stated:

87. He argues that it is not clear what is the fraud that she is alleging. There seems to be two possible grounds to the allegation. Firstly that the first named defendant falsely represented to her that he would invest her money but took it not intending so to do. Secondly having taken it to invest he appropriated it either alone or with Mr Delahunty. These possible grounds of fraud do not stand up in relation to the four sums of money at issue in this case. In relation to the sum of £30,000 or £36,000 given in 1977 the first issue is whether the first named defendant agreed to invest it in Canadian Bonds, this is in dispute. There is no corroboration of the plaintiff’s allegation. It was never made in writing until these proceedings where issued. The court will not be justified in a finding of fraud on this basis. Also there is no evidence that the first named defendant misappropriated the money. In considering this issue the court should have regard to the fact that it was given in cash, no receipt was sought, and the plaintiff did not seek documentation or a detailed account thereafter. This strongly suggests that she gave the first named defendant a free hand in how he held, dealt with and invested the money. According to his evidence part of it was invested with Delahunty in January, 1977 and part of it was invested in Merrill Lynch. The plaintiff contends that her investment was entirely comprised in the sum of £50,000 and that it was given to Delahunty as part of an alleged partnership. There is no evidence that either the first named defendant or Mr Delahunty considered that to be the case. The first named defendant says that the sum was repaid with the agreed interest in the form of shares in ACS.

88. He argues that if the court were to conclude that it was received by Delahunty as part of a partnership with the first named defendant that fact would not amount to fraud for two reasons. Firstly there was the relative freedom concerning the money which the plaintiff had allowed the first named defendant and secondly the partnership agreement if it were implemented was precisely for the purposes of investment of client’s money. Mr Boyle continues that the plaintiff says that the sum of £10,000 was given to the first named defendant to invest in Merrill Lynch. There is no corroboration of her alleged instructions. Indeed her letters of the 28th May, 1985 and the 30th August, 1985 when she complains to the first named defendant and demanded the return of her money, made no reference to this payment. In the second of these letters she seems to be surprised to learn that there is a sum to her credit in Merrill Lynch (this was part of her investment of £32,000). She says it was given by cheque but she did not at any stage seek in writing investment documentation or a detailed account. If he got the money to invest there is no evidence that he misappropriated it. The plaintiff is asking the court to draw an inference on breach of trust or even fraud for the non-return of the money. It is submitted that the evidence is certainly too weak to ground a finding of fraud.

89. The plaintiff says that she “took over” her sister Caroline’s investment of £3,000 and this is denied. There is no evidence in writing of this assignment, she did not refer to it in her letters in 1985 again no evidence was adduced to show the first named defendant appropriated the money and the plaintiff is asking the court to draw an inference in that regard.

90. The position with regard to the sum of $200,000 is clear. The instructions to the first named defendant were to invest it in U.S. treasury bonds but apparently gave him a free hand as to where and how he did so. He attempted to buy these bonds at an established stockbrokers - Brentwood Securities Inc. (although he knew the President Mr Delahunty). His account is corroborated by the statements of his account with Brentwood Securities. The plaintiff places great reliance on the letter dated the 1st September, 1981 from the first named defendant to Mr Delahunty. It was put to the first named defendant that the letter dated the 1st September, 1981 was a device whereby Mr Jackman invested in the partnership or gave the money to Delahunty. It is submitted that this is not credible for several reasons:-

91. Mr Boyle in his submissions continues:-

92. Ms. Corrigan had pointed out the three certainties required in a Trust namely,

93. It is the submission of the plaintiff herein that the document could not be what it purports to be. It is a flimsy typed document and it is unlikely to have been produced by any reputable organisation of any description. No explanation has been offered in relation to the location of its execution, the manner of its execution or the purpose of its execution. Inconsistency arise in the evidence in relation as to whether it was created in California or New York for the purposes of opening a chequeing account with Paine Webber or for the purpose of buying gold coins. Further there is no receipt in relation to any purchase of gold coins in 1987. No explanation was given for the three year delay in making an application to the President of the High Court. She had stated that the payments from the social welfare were for herself and her daughter. She eventually told the court that the money only came from the social security payments of her daughter and undoubtedly her credibility was continually, significantly and seriously put in question in relation to the source of the funds and the purchase of the gold coins. It is clear however and the court so finds that the first and second named defendants had a joint account and that the second named defendant placed her daughter and her own social security monies into that joint account. It is also clear that the first named defendant had control over the second named defendant’s account as evidenced by the cheque made payable to the plaintiff from the second named defendant’s account.

94. It was submitted that at all material times the accounts of the first and second named defendants may be treated as joint accounts from which the gold coins where purchased and accordingly the gold coins are jointly owned by the first and second named defendants. There is some corroborative evidence of this by virtue of the manner in which the gold coins were stored namely the joint account both in America and in Ireland which came to light pursuant to the court orders. The court must also have regard to the failure on the part of the second named defendant to produce proof of documents despite continual references to such documents. In fact the court suggested that some documents could be faxed during this long trial. It was not done.

95. Mr Boyle on behalf of the second named defendant argued that the onus is on the plaintiff primarily. He argues that even if the coins were purchased from a mixed family fund it is not possible on the evidence to determine what proportion if any of the monies of that fund belonged to the plaintiff. The court would be speculating if it did so. If there were monies in that fund that belonged to the plaintiff some of which were trust monies her entitlement to recover that money would have crystallised on the date that she paid it to the first named defendant i.e. July, 1981. A claim to recover it in the form of some or all of the coins was long statute barred at the time of the commencement of the proceedings. He further argues that the second named defendant holds the coins in trust and relies on what she believes is a trust document. Ms. Corrigan’s evidence is irrelevant as she was talking about Irish law. The written trust would be governed by the law of the State of California of which the court has no evidence. He quotes from Underhill and Hayton, Law of Trusts and Trustees, (14th Ed. 1987) at p.39. He sets out basically the three certainties to which the court has already referred and adds:-

96. He submits that all these elements are present. The evidence of both defendants was that Mary Jackman told her husband she was buying the coins for their daughter to provide for her education. That statement and the purchase of the coins satisfy all the requirements for the creation of a trust. No writing is required to create a trust of personal property (Underhill and Hayton, op cit at p.175 and Keane op cit p.89) argues that that Trust will prevail over any claim of the plaintiff unless she can show that Mary Jackman had noticed that any money contributed by Michael Jackman was subject to the plaintiff’s trust. However, this court is satisfied as a matter of probability that the second named defendant was aware of the involvement of her husband in the trust funds of the plaintiff. Mr Boyle argues further that even if the trust fails, the result Ms. Corrigan confirms, that the ownership of the coins revert to the parties who paid for them, namely Mary Jackman and her daughter. If the first named defendant is found to have contributed to the coins he may also have an interest but only if she can show that his share in that fund was trust money (i.e. of the sub-trust only not her other monies). There is evidence that John Jobling-Purser gave money to the first named defendant as did Mr Nolan and John Doran. The plaintiff as a matter of probability would have to show what interest they might have in the fund that bought the coins. In other words she must set up some kind of money trail from the $200,000 transferred in 1981 and the monies used to purchase the first tranche of coins in 1987 and the second tranche in 1989. It is submitted that she has not come close to establishing this trail.

97. The plaintiff’s counsel convincingly called into question the defendant’s capacity to live on their income in the early 1980’s. He challenged the validity of the Trust document and its provenance. He queried a transfer of $25,000 by the second named defendant in 1987 linking it to the unfavourable appeal judgment of Judge Barry Russell and submits that that is hardly sufficient to ground a claim to ownership of a particular fund. However, it is significant that these two events could be so close to each other and the circumstances of each event. This court does not believe that it was merely a coincidence. The court reserved judgment and spent a considerable time in reviewing all the evidence. The transcript became available in instalments over several months. The court prepared in an initial draft as long ago as last May. However, the court having reread the entire transcript and deciding that it should make findings of fact indicated that it was very concerned about legal matters raised by Mr Boyle and wished to be further addressed. Accordingly a date was set aside and further submissions were taken. While neither side were wholly convincing in their evidence it seems to this court that on the balance of probability and having regard to all the evidence the court should determine the questions submitted to it as follows:-

98. On the facts she would be entitled to all these sums subject is a legal point to be considered later. Having regard to her laches for which there is no real explanation it does not seem appropriate that there should be any interest. That answers the next query.

99. As indicated there was a late amendment to defence and a number of legal problems were flagged at an early stage in these proceedings. However, both parties agreed to postpone legal aspects and to await the determination of the factual issues.

100. After the evidence was concluded written submissions, with which the court has already dealt were made. The court then requested various points mainly raised by Mr Boyle’s written submission to be further discussed. The plaintiff’s sister was concerned about the morality of her investment. Rather than realise it, Mr Jackman suggested to the plaintiff that she should pay her sister and take over her investment. The argument of Mr Boyle was that this was a debt of the first named defendants owed to the plaintiff’s sister, Caroline. It was a chose-in-action under s. 28(6) Judicature (Ireland) Act, 1877. It could only be assigned in writing under the hand of the assignor. Mr Nolan argued that it was not a chose-in-action and if it were, Caroline would have had to assign to the plaintiff. He argues there was no assignment at all, Caroline was paid her money by the plaintiff. Mr Jackman had told the plaintiff that if Caroline wished to have her money back the result was that it would reduce the investment. This was a fraudulent misrepresentation. The money had at that time been already purloined by either Mr Jackman or Mr Delahunty or both. Indeed Mr Jackman does not say that it was given to Mr Delahunty and Mr Nolan said Mr Delahunty is not really relevant in relation to the £3,000. Despite three orders for Discovery there is no evidence that this £3,000 was ever invested. However, Mr Jackman said it was invested. Mr Jackman also represented that in fact the plaintiff’s interest would be increased. There is no evidence that they were in fact increased. The question of the Statute of Limitations or of the Judicature Act does not arise if the claim is based on fraudulent misrepresentation. This case is only concerned with four sums of money out of the many monies alleged to have taken place between the parties, as regards £36,000 in September, 1976 (or £32,000). This amount is in dispute. That was to be invested in to Canadian bonds. The documents associated have words like “sure” and “certain maturity”. The second sum is for £3,000 in August, 1997. This is Caroline's money which we have just discussed. The third sum is £10,000 in April, 1978 being monies which came out of the Norwich Union and would be invested in Merrill Lynch in London and the fourth sum is $200,000. The court then turns to the consideration of the Statute of Limitations, in particular s. 44 and s. 71 thereof. It is agreed by the parties that if a trustee has been guilty of fraudulent breach of trust then there is perpetual liability. Mr Boyle argues that the first three sums were at best subject to a constructive trust and that since the definition of a trust in s. 2 of the Statute of Limitations does not apply to constructive trust, it couldn’t be protected under s. 44. However, Mr. Nolan argues it is in fact an express trust and relies on the Judgment of Esher MR in Soar -v- Ashwell (1893) 2 AB 390, at p. 393:-

101. That passage and several others are approved in the Irish textbook of Kerr and Brady. Mr Nolan argues that the first three sums of money given to Mr Jackman for a stated purpose for a stated beneficiary and for a stated sum. Accordingly, this satisfied the criteria of the three certainties. The fourth figure of $200,000 is an amalgam. Some came from the ACC, others coming from Chase Bank and some coming from the monies deposited by solicitors of the trust. The other two sums into the children’s settlement. Mr Nolan argues that all of them came within the category of Soar -v- Ashwell . Mr Boyle relies on B and B Han -v- The Governor and Company of the Bank of Ireland (date ). Mr Nolan answers that Derry -v- Peake which is the corner store of this branch of the law, basically boils down to dishonesty. Mr Boyle tries to differentiate between fraud under s. 44 and s. 71. Mr Nolan says that fraud, unless otherwise defined, is fraud. It must mean the same thing used in the one statute. As regards the institution of proceedings, Mr Nolan argues that even Judge Russell in California was not able to resolve the complexity and that the plaintiff would not visibly realise that she was being defrauded financially by the first named defendant until she employed counsel to intervene and examine and cross-examine Mr Jackman in California. If so, that is the date from which time runs. Therefore these proceedings were instituted within the statutory period. However, Mr Nolan primarily relies on s. 44. This does not in any way abandon s. 71. The plaintiff had instituted proceedings for monies against the defendant, monies borrowed by him but those proceedings were issued in 1986. However, she did not know at that time that she could make a case in fraud or in breach of trust or in breach of fiduciary duty. The court was then concerned about the coins which were purchased from a mixed fund to which the second named defendant and defendant’s daughter, the first named defendant and various other people who had invested in Mr Jackman (“the Jackman Fund”). He maintained they had not put money into specific funds but into him. He made that point in SIPC Proceedings but it was not accepted by Judge Russell but he has made the same point in this court. The court pointed out they would not have a proper paper trail unless it excluded the other sources. If there were a share, the share would have to be identified. If it is a mixed fund and the plaintiff cannot trace it, then the coins revert to Mrs Jackman. The first three sums of money were given before the power of attorney, which was the 29th October, 1981. Mr Nolan submitted that the power of attorney, in fact, had no relevance to the four sums of money which he is claiming in these proceedings. Mr Nolan that he had a difficulty in establishing the paper trail in relation to the coins. It is that the onus is on Mrs Jackman to prove that she didn’t produce any information about her bank accounts. Mr Nolan in dealing with the rights of the child who was not represented and whose funds may have contributed to the mixed fund which bought the coins, eventually conceded this. The coins were at least half owned by the defendants. They were found in their accounts and joint accounts in the name of both defendants. Mr Nolan eventually agreed he would accept one third of the coins. Mr Boyle argues that even if Mr Jackman is only entitled to half the coins, or one third, we are back at the basic problem that the money he used was from a mixed fund and that the other contributors of Mr Jackman have an interest. Mr Boyle argues that the decision in Soar -v- Ashwell does not support Mr Nolan, on the grounds that in the Soar case, the trust fund was in existence under a will in trust for two persons in equal shares and on the death of each member the share went to the respective children. There was an express trust and Ashwell was not at any time nominated as a trustee of that trust. He was the solicitor of the nominated trustee. He argues very forcibly that Soar is not an authority for the proposition that in every case where someone invests money that somebody else may become an express trustee.

102. I have already determined the case subject to various legal points. The court is satisfied that Mr Jackman was an express trustee laid down in Soar -v- Ashwell . Therefore the defence of the Statute of Limitations does not apply. I also accept Mr Nolan’s argument, that the section of the Judicature (Ireland) Act, 1877 relating to assignment of a chose- in- action is not relevant. Accordingly, the court will give a decree for four sums of money. However, the court is not satisfied that a proper paper trail has been established between the plaintiff and the gold coins and in all the circumstances the gold coins must be returned to Mrs Jackman. This case is based on a decision that Mr Jackman was an express trustee.