Wednesday 28 June 2017

Gerald Kean is 'comfortable in the public eye and the TV studio but not in court', judge hears

Solicitor Gerald Kean
Solicitor Gerald Kean

Aodhan O'Faolain

A bank has urged the High Court to find solicitor Gerald Kean has breached his undertaking to return to it the title deeds of two properties owned by a woman in Co Waterford.

That breach amounts to misconduct and the court should draw inferences from Mr Kean’s failure to give evidence in the case by Educational Building Society against him, Andrew Fitzpatrick SC, for EBS, said.

Mr Kean is “comfortable in the public eye and the TV studio” but not about explaining what he did to the court, counsel said.

Citing a legal authority stating solicitors undertakings are about “professional honour”, Mr Fitzpatrick said there was “not much honour” here.

Richard Kean SC, for Gerald Kean, said the comment about his client being comfortable in the public eye but not in court was "outrageous and egregious", an attempt to attract publicity and entirely inappropriate.

Mr Kean did not give evidence because there was no need for him to do so as he accepted, as partner in the Kean firm, he had given the relevant undertaking and was completely responsible if the court finds there was any wrongdoing, counsel said.

There was not much honour by EBS in this matter and a “total dearth” of factual evidence to support its case against Mr Kean. The problems in relation to the title deeds arose because of “systemic failures” within the EBS itself and there was expert evidence to that effect.

Having heard closing arguments from both sides on Wednesday, Mr Justice Michael Twomey reserved his judgment. 

In its action, EBS has alleged Mr Kean has failed to return to the Society, in line with a signed undertaking, the title deeds for two properties of Dolores Corcoran.

In opposing the case, Mr Kean has alleged various “systems failures” by EBS concerning redemption of its loans concerning the two residential properties – at Portnahully, Carrigeen and Hunter’s Way, Williamstown.

The court has heard the title deeds are with Permanent TSB as a result of a June 2008 refinancing with it of three of Ms Corcoran’s four loans with EBS.

It is alleged a letter from EBS' indicating its security for another loan of Ms Corcoran's included a charge on the two properties was received by the Kean firm after the loans concerning those properties were redeemed and the deeds given to PTSB.

On Wednesday, Mr Fitzpatrick said four letters from EBS to the Kean firm in June 2008 stated Ms Corcoran's EBS loans could only be redeemed if all other loans were vacated.

He said the Corcoran remortgage transaction which EBS was told would be completed has not completed but, despite being requested to do so, Mr Kean has not returned the deeds to EBS and instead passed them to PTSB. Passing the deeds to PTSB was a breach of undertaking and a breach of undertaking constitutes misconduct, counsel said.

Richard Kean said it had taken six years for EBS to bring this case and seeking to judge a professional with hindsight was a dangerous concept.

EBS had made only delayed references to the second limb of Mr Kean's undertaking whereby, if a solicitor procures discharge of the mortgage, they comply with the undertaking. Mr Kean had to give an undertaking to PTSB to draw down money to give to EBS, that was done and there was no gain to either Kean's or PTSB.

There was nothing in the information from EBS to Kean's before the loans were redeemed to indicate a cross-security and the mistake was by EBS because it did not give a "straight" answer when Kean's asked how much was due on the properties.

Gerald Kean relied on the solicitor in his firm who handled the loans redemption and gave evidence but there was no suggestion of her being "positioned", counsel said.

The court should consider whether it was honourable for EBS to continue with the systemic failures that gave rise to this and to ignore the problems experts had identified with EBS concerning redemption issues.

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