Solicitor Gerald Kean is facing a legal costs bill estimated at €450,000 after a High Court judge ruled he is liable for 90 per cent of EBS's costs of its successful case over his failure to return title deeds of two properties.
The costs orders have been stayed pending appeal.
The deeds concern two properties owned by Dolores Corcoran in Co Waterford over which EBS has a first legal charge and which were later subject to remortgaging with Permanent TSB. Ms Corcoran was a client of Mr Kean's firm at the relevant time.
Mr Justice Michael Twomey made final orders on Thursday arising from his judgment last month finding Mr Kean was not entitled to give PTSB the title deeds to the two properties at Hunter's Way, Williamstown, and Portnahully, Carrigeen.
He ordered Mr Kean, within 21 days of the court order being formally made, to notify PTSB he was not entitled to give it the relevant deeds and to take steps to retrieve those and return them to EBS.
Stay refused
He refused to place a stay on the deed retrieval orders on foot of an undertaking offered by EBS to hold the proceeds of any sale of the two properties pending the outcome of any appeal.
However, he said he would stay the costs orders pending Mr Kean’s appeal against the judge’s findings in favour of EBS. An appeal may not be heard for up to two years.
The judge said it was likely the costs of the 10-day case would be a six-figure sum “which would be out of the reach of most individuals”.
Mr Kean, he said, is a principal of a “relatively small” solicitor’s firm and the court had no evidence of his current financial circumstances and must assume he is a solicitor of “average financial means” while EBS is a large financial institution.
For cashflow reasons, it could result in an injustice to Mr Kean if he was required in the short term to pay the significant costs and then in two years’ time the Court of Appeal was to find in his favour and conclude there was never any need for him to pay EBS’s costs, the judge said. For those reasons, he would stay the costs orders.
Costs arguments
Richard Kean SC, for Mr Kean, had earlier argued the court should make no order for costs, meaning each side pay their own, while Andrew Fitzpatrick SC, for EBS, maintained it had won the case and was entitled to all of its costs against Mr Kean.
The judge found Mr Kean was liable for 90 per cent of the costs because he had lost on the primary issue – whether he was required to return the deeds to EBS in line with undertakings provided by him, as principal of the firm, to EBS in 2008 concerning the properties.
He said EBS must pay 10 per cent of its own costs to reflect the judge’s finding that the High Court had no jurisdiction at first instance to find Mr Kean guilty of misconduct arising from failure to return the title deeds.
In his main judgment, Mr Justice Twomey said the initial problem in the case arose from a “simple human error” by a solicitor in Mr Kean’s office which led to Mr Kean being bound by “double” undertakings – to give PTSB a first charge over Hunter’s Way and Portnahully and at the same time return to EBS the deeds of those two properties because one of its loans secured on them was not redeemed.
That mistake led to a fourth loan not being discharged which was necessary for Mr Kean to be able to give PTSB the title deeds and a first charge over the properties. The firm’s internal error was “exacerbated” by Mr Kean’s reaction to it, he said.
He held Mr Kean should not have given the deeds to PTSB in the “teeth” of advice from a solicitor in his office and should not have made a “false” statement in a 2014 letter to PTSB that his firm had issued proceedings against EBS.
