The defendants were provided with a loan of over €21 million in 2008 by Ulster Bank Ireland Limited (“the Bank”). The loan was provided in order for the defendants to purchase a site, however the plans did not go ahead and the defendants were left unable to repay the loan. Prior to this, the Bank had settled a claim, receiving €5 million, against CBRE for their alleged negligent valuation of the site the defendants had planned to purchase.
The compromise reached between the parties was allegedly breached and the Bank sought summary judgement (totalling €22,090,302.64) against the defaulting defendants. The defendants argued that, alongside CBRE, they were concurrent wrongdoers and thus no further money was owed to the Bank by virtue of sections 17(2) and 35(1)(h) of the CLA.
At first instance, the High Court found that the defendants and CBRE were concurrent wrongdoers. However, Section 17(1) was not applicable in this instance as the settlement reached between the Bank and CBRE did not refer to the defendants, nor did CBRE admit any liability. In spite of this, the Judge did note that the amount paid in the CBRE settlement should be taken into account and could reduce the settlement owed by the Defendants. The judgement was awarded to the Bank and the Defendants appealed.
The Court of Appeal ultimately dismissed all three of the Defendant’s appeals. The Court confirmed that the claim was not an action seeking to recover damages, but a claim seeking to recover debt. As such, the claim did not fall within the remit of the CLA.
This case is significant as it highlights the inherent issues with parties attempting to rely on the CLA in debt recovery cases. In this instance, CBRE and the Defendants could not be seen as concurrent wrongdoers as they were never attempting to recover the same type of damage. Further, the Court noted that if the Defendants wished to include CBRE in their wrongdoing, expert evidence should have been adduced at trial in support of this. In spite of this, the case makes clear that for a debt recovery claim, the CLA is the wrong vehicle when trying to establish a concurrent wrongdoer.
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