High Court dismisses wife's mortgage defence, ruling she is bound by her conduct and agreement despite alleged lack of signature.

APPROVED [2025] IEHC 419

THE HIGH COURT

Record No.: 2019/60 CA

BETWEEN:

BANK OF IRELAND MORTGAGE BANK u.c.

Plaintiff -and-

PETER CODY and HEATHER CODY Defendants ___________________________________

Record No.: 2017/574 S

BETWEEN:

BANK OF IRELAND MORTGAGE BANK u.c.

Plaintiff -and-

PETER CODY and HEATHER CODY (otherwise HEATHER McMILLAN)

Defendants ___________________________________ Record No.: 2019/1092 P BETWEEN:

HEATHER CODY

NO REDACTION REQUIRED s

Plaintiff -and-

PETER CODY, JAMES CODY & SONS SOLICITORS, THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND and BANK OF IRELAND MORTGAGE BANK u.c.

Defendants

JUDGMENT of Mr. Justice Rory Mulcahy delivered on the 24 July 2025

Introduction

1. This judgment concerns three separate sets of proceedings all relating to two loans advanced by Bank of Ireland Mortgage Bank u.c. (“BOIMB”) in 2005, secured by a mortgage over a property jointly owned by Mr and Mrs Cody, Kilmurray, Gorey, County Wexford (“the Property”).

2. There is no dispute that there has been default in repayment of the loans. BOIMB claims that Mr and Mrs Cody were both parties to the loans and mortgage and, in those circumstances, it seeks to exercise its entitlement to possession under the mortgage and seeks judgment for the sums due and owing. It has obtained orders for possession and judgment against Mr Cody, which he has not appealed. Mrs Cody, however, contests both claims on the basis that she was not a party to the loans and mortgage, which she contends were created by Mr Cody, in collusion with BOIMB, without her knowledge and consent.

3. In the first set of proceedings, BOIMB seeks possession of the Property (“the possession proceedings”) which it is not disputed is Mrs Cody’s home. These proceedings commenced in the Circuit Court, where BOIMB was granted orders for possession against both defendants. Mrs Cody appealed the order against her, and, following a judgment of the Supreme Court ([2021] IESC 26), the possession proceedings were adjourned to plenary hearing before the High Court.

s

4. The second set of proceedings concern BOIMB’s application for judgment against the defendants (“the judgment proceedings”) in the sum of €648,782.18 together with continuing interest. Judgment in default of appearance was entered against the first defendant on 18 January 2018. By order of the Master of the High Court dated 14 May 2019, the judgment proceedings against the second defendant were adjourned to plenary hearing.

BOIMB sought to appeal that order, but ultimately applied to have the judgment proceedings against Mrs Cody adjourned to plenary hearing and heard together with Mrs Cody’s proceedings. By order dated 28 February 2020, the High Court (Simons J) adjourned the judgment proceedings to plenary hearing.

5. The third set of proceedings are Mrs Cody’s proceedings against BOIMB and the Governor and Company of the Bank of Ireland (“Bank of Ireland”). Mrs Cody makes various claims which can be grouped into two categories. The first set of claims relate to the circumstances in which the loans and mortgage the subject of the proceedings were created in her (and Mr Cody’s) name. She claims that she was not aware of the loans and mortgage and that she never executed the loan agreements or mortgage. She alleges collusion between BOIMB and Mr Cody. She also alleges that BOIMB and Bank of Ireland (together “the Bank”) created a large number of bank accounts in her name without her knowledge. The second set of claims relate to the alleged improper conduct by the Bank and its representative in bringing and maintaining these proceedings, which Mrs Cody claims has caused her profound stress and illness. Many of the factual matters relied on by Mrs Cody in her claim were also raised by her in defence to BOIMB’s claims.

6. The parties agreed that the three sets of proceedings should be heard together.

7. Evidence in the proceedings was heard over eight days in March 2025. BOIMB called evidence in its two cases. Mrs Cody called evidence in defence of those two cases and as plaintiff in her own case. The Bank then called evidence in response to Mrs Cody’s case.

8. Subsequent to the conclusion of the evidence but before legal submission were heard, BOIMB made an application to amend its pleadings. That application was heard on 11 April 2025. Legal submissions were heard on 20 May 2025, following which I reserved judgment.

s

9. For the reasons set out in detail below, I have concluded that BOIMB is entitled to an order for possession in the possession proceedings and to judgment in the judgment proceedings. Mrs Cody’s claim against the Bank will be dismissed.

Structure of judgment

10. In circumstances where this judgment concerns three separate but related sets of proceedings, I propose to structure the judgment in the following way in order to avoid unnecessary repetition:

I. Factual background;

II. BOIMB’s claims;

III. Mrs Cody’s defence to BOIMB’s claims;

IV. Mrs Cody’s claims against the Bank;

V. Summary of evidence;

VI. The application to amend;

VII. Arguments of the parties – BOIMB’s proceedings;

VIII. Arguments of the parties – Mrs Cody’s proceedings;

IX. Issues to be decided;

X. Discussion of BOIMB’s claims;

XI. Discussion of Mrs Cody’s claim;

XII. Conclusion.

I Factual background

11. By letter dated 5 July 2001, BOIMB offered a loan facility in the sum of €190,460 to Mr Peter Cody and Ms Heather MacMillian, which is a slight misspelling of Mrs Cody’s maiden name, MacMillan. The letter was addressed to Mr and Mrs Cody’s then home address, Ramstown, Gorey, County Wexford. The loan was to be secured by a mortgage over the Property. It appears that Mr and Mrs Cody built a new house on the site of the Property in or about 2000 or 2001. It then became their family home.

s

12. Monies were forwarded to Mr and Mrs Cody on foot of this loan offer and the loan was secured by a mortgage. Mrs Cody was a purported party to the loan and mortgage. The following year, a top-up loan in the sum of €50,000 was advanced to Mr and Mrs Cody, secured by the existing mortgage. The offer letter for this loan, dated 27 February 2002, was also addressed to Peter Cody and Heather MacMillian at the Ramstown address. Both the 2001 and 2002 offer letters have been signed in the names of Peter Cody and Heather MacMillan. Mrs Cody claims to have been unaware of either of the loans or the mortgage and not to have signed the documents.

13. A valuation by Warren Estates Limited was carried out on the Property. It is dated 12 August 2005. It describes the Property as a substantial two-storey residence set on an elevated 12-acre site. It valued the Property at €1 million ‘as is’, or a total of €1.25 million if two portions of land were sold off for development purposes.

14. In January 2005, Mr Cody acquired a residential property in Carlow for his own use, with the benefit of a 100% mortgage from BOIMB. He had previously been using a rented property.

15. In or about August 2005, Mr Cody spoke with Mr Brendan Byrne of BOIMB about obtaining new loan facilities from BOIMB. On 6 and 8 September 2005 two loan offer letters were issued by BOIMB, addressed to Mr Peter Cody and Mr Heather McMillan, with their address given as, 1 Pembroke Court, Centaur Street, Carlow, Co. Carlow. It is common case that this is not the correct address for either Mr or Mrs Cody but is, apparently, an amalgam of Mr Cody’s residential and business addresses. The combined offer made by BOIMB was for a loan in the sum of €650,000, made up of one loan of €300,000 and another of €350,000.

16. On 31 August 2005, Mrs Cody had a consultation with Ms Geraldine Carthy (now Judge Geraldine Carthy) of Reidy Stafford Solicitors. Though there is a dispute regarding what was discussed at this consultation, it is agreed that the prospect of further borrowing from BOIMB was discussed.

17. The 6 September 2005 letter (“the -973 loan”) referred to a requirement for a certified copy of Mr and Mrs Cody’s separation agreement or judicial order of separation or divorce.

s

The letter also required that the existing loan be discharged and that the existing mortgage on the Property be vacated. The borrowers were to provide a new first legal charge over the Property. The 8 September letter (“the -965 loan”) included as a condition of that loan that the borrowers’ solicitor provide an undertaking to apply €150,000 of the loan amount to the capital account of Peter Cody in the solicitor’s firm of which he was then managing partner, James Cody & Sons, Solicitors. €200,000 was to be paid over to Heather McMillan in respect of the separation settlement as agreed between the parties.

18. By handwritten letter addressed to Brendan Byrne, Manager, Bank of Ireland, BOIMB was advised that the settlement would be a financial settlement, not a separation settlement, and BOIMB was asked to amend the offer letters accordingly. The letter was signed “Heather MacMillan Cody” and “Peter Cody”. Mrs Cody denies that she signed this letter.

19. A revised version of the -973 loan offer issued dated 20 October 2005, omitting the requirement for a copy of any separation agreement and referencing instead a financial arrangement. It included a requirement that the agreed financial arrangement limited payments to Heather McMillan to €3,000 per month.

20. On 24 October 2005, Ms Carthy wrote a letter on Reidy Stafford’s headed paper “To Whom It May Concern”. It confirmed that Reidy Stafford had given Mrs Cody legal advice in relation to the -973 loan offer. The letter was provided to Justin Cody of James Cody & Sons, who was the solicitor managing the transaction, on 29 October 2005.

21. Both loan offers were accepted in writing on the same day as the letter from Ms Carthy,

24 October 2004. Mrs Cody contends that the signature on the loan offers is not her signature. The signatures on the loan offer letters were not witnessed. There is no provision for witness signatures on the loan offer letters.

22. On 9 November 2005, Justin Cody provided solicitor’s undertakings to BOIMB in relation to the -973 loan offer and -965 loan offer. The authority to do so purports to have been signed by Mr Peter Cody and Mrs Cody in the presence of Justin Cody. As emerged in evidence, the purported signing by Mrs Cody did not take place in the presence of Justin Cody, rather, her purported signatures had already been affixed when he executed the undertakings.

s

23. On 22 November 2005, Justin Cody sent a cheque requisition to BOIMB in which he undertook, inter alia, to apply €150,000 of sums received to Peter Cody’s client account and €200,000 to Heather McMillan “as per the Deed of Financial Arrangement.” Justin Cody wrote a similar letter on 1 December 2005, save that the later letter expressly referenced that the Deed of Financial Arrangement limited the living expenses of the borrowers to €3000 per month.

24. On 14 December 2005, BOIMB issued the sum of €650,000 to James Cody & Sons. Of that sum, €206,938.46 was applied to discharge the existing mortgage over the Property.

€200,000 was sent by cheque to Heather McMillan and €173,000 was transferred to Peter Cody’s capital account. A separate payment of €10,000 was also made to Heather McMillan.

The cheque for €200,000 was lodged to Mrs Cody’s Ulster Bank account on 15 December 2005.

25. By mortgage dated 12 January 2007 (“the Mortgage”), the Property was charged to BOIMB as security for all sums due and owing from Peter Cody and Heather MacMillan to BOIMB. The mortgage deed signatures bears the signatures ‘Peter Cody’ and ‘Heather MacMillan’. It was purportedly signed in the presence of Ms Siobhán Butler, a legal secretary in James Cody & Sons (in fact, Peter Cody’s legal secretary). Ms Butler confirmed in evidence that Mrs Cody’s name was not signed in her presence.

26. As appears from the folio for the Property, the mortgage was registered as a charge on the Property in the Land Registry on 21 December 2007. No application has ever been made to rectify the Register.

27. On 3 November 2008, a further loan offer letter was issued by BOIMB addressed to Mr Peter Cody and Mrs Heather Cody, with their address given as the Property. This offer was for a loan facility in the sum of €245,000, and the property to be mortgaged was described as Ardamine, Courtown, Co. Wexford, a property jointly owned by Mr and Mrs Cody. This was referred to in evidence as the Sea House. It appears that this loan sum was advanced by BOIMB and in circumstances where there was default in repayment, the property was sold by BOIMB and the loan discharged by agreement with Mr and Mrs Cody. Despite her agreement to the sale of the Sea House in order to discharge their liability to BOIMB, Mrs Cody now claims that she was unaware of that loan and mortgage until demand was made for repayment.

s

28. There was default in relation to the -973 and -965 loans from in or about 2012. No payments have been made since then. There was substantial engagement between BOIMB and Mrs Cody in relation thereto between 2012 and 2015. Mrs Cody met with representatives of BOIMB and proposals for resolution were made on both sides. During this period, Mrs Cody sought to take responsibility for negotiations with BOIMB on behalf of Mr Cody due to health difficulties he was suffering but she was never formally authorised to negotiate on his behalf.

29. In correspondence in 2015, following a letter from BOIMB which threatened legal proceedings, Mrs Cody suggested for the first time that she had had no involvement with the loans and mortgage the subject of these proceedings.

30. On 10 June 2016, BOIMB issued a demand letter for repayment of all sums due on the two loans and advised Mrs Cody that if she did not make repayment, it could start legal proceedings against her, including possession proceedings. The loans were not repaid.

31. BOIMB commenced Circuit Court possession proceedings against Mr and Mrs Cody by issuing a Civil Bill for Possession on 5 January 2017.

32. As set out above, the Circuit Court made an order for possession on 12 February 2019, but following an appeal by Mrs Cody to the High Court, and a subsequent appeal by BOIMB to the Supreme Court, the possession proceedings were adjourned to plenary hearing before the High Court. The possession order against Mr Cody was not appealed by him.

33. The judgment proceedings were commenced by Summary Summons on 30 March 2017 and were adjourned to plenary hearing in 2020. Judgment in default of appearance has been obtained against Mr Cody.

34. Mrs Cody commenced her proceedings by plenary summons on 11 February 2019. She delivered a Statement of Claim on 13 September 2019. On the same date, she filed a Notice of Discontinuance of the proceedings against the first and second defendants, Peter Cody and James Cody & Sons Solicitors.

35. On 25 October 2024, all three sets of proceedings were listed for hearing together on 3 March 2025.

s

II BOIMB’s claims

36. BOIMB’s claims in both its sets of proceedings are straightforward. In the possession proceedings, it contends that it is the registered owner of the charge on the Property, and that the register is conclusive in this regard. No application has been made to amend the register.

37. In addition, it contends that it advanced the loan sums to the defendants in December 2005, that there has been default in repayment of the loans following demand, and that, accordingly, its right to seek possession under the mortgage has arisen. It claims, therefore, to be entitled to an order for possession pursuant to section 62(7) of the Registration of Title Act 1964, as amended (“the 1964 Act”).

38. Similarly, in the judgment proceedings, BOIMB claims that there has been default in repayment of the two loans, entitling it to demand repayment in full together with interest.

It calculates the total sum due and owing as at the date of its Statement of Claim in the judgment proceedings as being €670,672.30.

39. It claims, in the alternative, that Mrs Cody is liable to it for money had and received to the use of Mrs Cody in the same amount.

III Mrs Cody’s defence to BOIMB’s claims

40. BOIMB called witnesses to prove all the documentation supporting its claims, and originals of key documents were produced to the court. Mrs Cody did not make any argument that BOIMB had not loaned the sums in issue, that a charge hadn’t been created and registered in the Land Registry or that there hadn’t been default in payment. Her defence is that she was not a party to any of these transactions and, in particular, that she did not sign the loan offers, the solicitor’s undertakings or the mortgage.

41. In her defence to the possession proceedings, she denies any knowledge of the terms and conditions of the loan offers, accepting the loan offers or signing them. She denies s

acceptance of the sum of €200,000 for her personal use. She denies signing the mortgage or having any knowledge of it.

42. She denies receiving legal advice “whereby there was any access to the… loan documents or the terms and conditions of the Loans were explained.” She denies that there was any evidence of her having received legal advice as required by the loans. She contends that the loan papers were withheld from Reidy Stafford solicitors.

43. In her defence to the judgment proceedings, she pleads that she was “kept in the dark”

about the proposal that €150,000 from the loans would be paid to Mr Cody’s capital account.

She describes the person ‘Mr Heather McMillan’, referred to on the loan offers, as a fraudulent name for a person who does not exist. She claims that Mr Cody stole her identity and created a fictitious person in collusion with BOIMB.

44. BOIMB’s position in relation to Mrs Cody’s denials that she signed the loan offers, and executed the Mortgage is that the evidence weighs against those denials. Following the hearing of the evidence, but before legal submissions were heard, it made an application to amend its claim in both proceedings. I will address that application below.

IV Mrs Cody’s claim against the Bank

45. As noted above, Mrs Cody’s claim falls into two categories. The first category of claims relates to Mrs Cody’s allegation that the Bank has had a systemic practice of creating bank accounts in her name but without her consent. She alleges that this was done in collusion with her husband, Mr Cody. She alleges that she has evidence of at least 40 accounts created in her name and without her knowledge. Mrs Cody has made a number of data access requests of Bank of Ireland and her claims in this regard arise from documentation provided in response to those requests. She says that the loans and mortgage the subject of these proceedings were created without her knowledge or consent.

46. The second aspect of her claim relates to the conduct by BOIMB of its proceedings which, in summary, she claims has been oppressive of her and has caused her profound stress and illness.

s

V Summary of evidence

47. Evidence was given over eight days in these proceedings. Not all of it was relevant to the issues which I need to decide and there was much personal information provided which it would serve no useful purpose to record in this judgment. I propose, therefore, to provide a summary of each witness’s evidence insofar as it may be relevant to the matters in dispute.

Cormac Downes

48. BOIMB called four witnesses in support of its two claims. Its principal witness was Mr Cormac Downes who is currently the Head of the Aged Security Unit with BOIMB with whom he has worked for 13 years. Mr Downes’ role was to prove the records of BOIMB.

He was not an employee of BOIMB at the time of the matters the subject of these proceedings and was not in a position to give evidence of anything that had occurred other than by reference to BOIMB’s records.

49. He gave evidence that he had access to the original records of BOIMB relating to the case. He explained how the records of BOIMB are maintained and explained the various systems used.

50. Mr Downes was given copies of the documents on which BOIMB relies in its proceedings and he confirmed that they were the same as the original documents where the originals were still in BOIMB’s possession, and the same as the copy record held by BOIMB where there was no original. Originals of all documents held by BOIMB were made available for inspection, as was the original of the mortgage, provided courtesy of the Land Registry.

51. Mr Downes also gave evidence of the activity on the two loan accounts.

52. In their written legal submissions, BOIMB contend that they rely on Mr Downes’ evidence and further contend that the advance of funds on foot of the two loan offers the subject of these proceedings, the activity on the accounts, and the balance of accounts were proved by him in accordance with the Bankers’ Books Evidence Act 1879. Mrs Cody did s

not challenge any of the evidence given by Mr Downes in this regard. I accept that these issues were all proved to the required standard.

53. As regards the mortgage and the loan offers relied on by BOIMB, Mrs Cody does not dispute their existence. Rather her complaint is that she did not sign these documents, and that they are invalid, at least as against her, and that they were created through the fraudulent conduct of the defendants in her proceedings (notwithstanding that she has discontinued proceedings against Mr Cody and James Cody & Sons). It is this issue on which I propose to focus when considering the evidence given.

54. Mrs Cody questioned Mr Downes. There was a tendency on Mrs Cody’s part to make statements and submissions rather than to put questions to Mr Downes (and other witnesses), and it was frequently necessary to remind her that what she stated during questioning was not evidence, a point which I reiterated before she gave evidence herself. She also frequently put propositions of law to Mr Downes (and other witnesses) which I repeatedly advised her was not permissible.

55. There was detailed engagement between Mrs Cody and Mr Downes regarding the address to which loan statements regarding the two loan accounts were sent. Although Mr Downes gave evidence that the bank statements are now being sent to Mrs Cody, Mrs Cody’s contention was that that was not always the case. Although the position remained unclear from the evidence, it was ultimately clarified by Mr Downes (when giving evidence a second time) and it appears from BOIMB’s written submissions that it accepts that the bank statements were only sent to Mr Cody – in accordance with the instructions on the account, which likely came from Mr Cody – until those instructions changed in 2012, i.e.

after BOIMB contacted Mr and Mrs Cody regarding default in their loan obligations. Mrs Cody is therefore correct in substance in her contention that the bank statements were not sent to the Property for the first number of years after the loans were drawn down.

56. Mrs Cody asked Mr Downes about the address on the loan offer letters, which she referred to as being “the mortgage”. Mr Downes confirmed that that was not the address on BOIMB’s systems for Mrs Cody nor one associated with the loan accounts or mortgage.

57. He was asked whether he was aware that Mrs Cody’s signatures were forged on documents and said that there was no evidence of that from his review of the file.

s

58. He was then asked (Day 2, p. 145):

Q. … but you will see that the signatures don't actually match, they don't even look the same. And in the two documents you saw earlier, one said Heather Cody and one said Helen MacMillan?

59. Mrs Cody did not identify the documents on which two signatures were said to be different despite being requested to do so, although it is certainly the case that there are some instances in which her purported signature is in the name Cody, and others, MacMillan. In any event, Mr Downes observed that it seemed to him that where documents requiring signature were addressed to Mrs Cody, they were signed ‘Cody’ and where addressed to McMillan (or MacMillan), they were signed ‘MacMillan’. He expressed the view that the signature on letters that Mrs Cody sent to BOIMB “seemed the same” as the signatures on the documents in issue.

60. Mr Downes was asked about a document which Mrs Cody had obtained from a data access request. The document was a screenshot of a computer record. It referred to a Mr Heather McMillan, with a date of birth 18 August 1985, a solicitor with no children. Mr Downes said that this is not how Mrs Cody is recorded on BOIMB’s systems, where her details are recorded accurately. He suggested that the screenshot seemed to be from BOIMB’s ‘Mortgage Link’ system which may have been filled out at the time of application.

He rejected Mrs Cody’s suggestion that the entry had been created to make it look like the loan was being sought by two solicitors who were young and had no children, though this was clearly not a matter within his knowledge.

61. Mrs Cody suggested to Mr Downes that BOIMB had chosen to pursue her rather than Mr Cody and that BOIMB had “deliberately been protecting him as a witness” and to “protect all his assets because he is a solicitor”.

62. Mr Downes explained that the only reason that BOIMB has not been able to enforce its judgment against an unencumbered commercial property owned by Mr Cody was because of a caution registered against that property by Mrs Cody. This is discussed further below.

s

Geraldine Carthy

63. Ms Carthy is now a District Court judge. In 2005, however, she worked with Reidy Stafford. She met with Mrs Cody on 31 August 2005, and sent the letter dated 24 October 2005 referred to above in which it was stated that Mrs Cody had been given legal advice in relation to the -973 loan offer. As she was not a judge at the relevant time, I will refer to her as Ms Carthy in this judgment. Ms Carthy was subpoenaed to give evidence by BOIMB. In response to the subpoena, Ms Carthy brought her available records from 2005.

64. Prior to Ms Carthy giving evidence, at the outset of the hearing, Mrs Cody provided a booklet of documents to BOIMB on which she intended to rely in these proceedings. These included a copy of Ms Carthy’s attendance note of her meeting with Mrs Cody on 31 August 2005.

65. Ms Carthy gave evidence surrounding the advice she gave to Mrs Cody in 2005. She was asked about the attendance note that Mrs Cody provided prior to trial. She confirmed that it had been prepared contemporaneously with her meeting with Mrs Cody and that it accurately reflected her recollection of the meeting.

66. In relevant part, the attendance note records that the family assets were the Property, worth approximately €1 million with a mortgage of €200,000, the Sea House in Wexford worth €200,000 with no mortgage, the solicitor’s practice in Carlow of which Mr Cody’s share was worth approximately €800,000 and a house in Carlow in Mr Cody’s sole name subject to a 100% mortgage.

67. The attendance note records that it was proposed that Mr and Mrs Cody would separate and that Mr Cody had come up with a proposal to re-mortgage the family home in the sum of €450,000 of which Mr and Mrs Cody would each receive half. In evidence, Ms Carthy explained that the proposal was for a full re-mortgage, clearing the existing mortgage, so that the total figure to be borrowed was €650,000.

68. It was explained in the attendance note that Mr Cody needed €150,000 because he was overdrawn on his capital account in his solicitor’s practice. Mrs Cody is recorded as wanting money in order to fund one of her children’s college fees in the United States, stated in the attendance note to be €42,000 per annum. Mrs Cody would receive no maintenance under s

this arrangement, but Mr Cody would be responsible for servicing the loans. Mrs Cody indicated that she proposed to use her share of the money to start up a commercial business and she had identified premises for that purpose.

69. The attendance note records that Ms Carthy advised Mrs Cody that this was “a very bad deal”. The risk of Mr Cody not servicing the loans was set out. The attendance note concludes with what was described as advice to Mrs Cody:

“She should instruct me to get full discovery in respect of Peter’s financial dealings in the practice, which would tell us whether he does or does not owe the practice any monies and the level of his income in the said Practice before she does anything and I further advised Heather that this could take me a period of time to get this information together. I further advised Heather that in the event Peter receives the letter from me, whereby I am enquiring into all of his financial dealings, that I have no doubt that this will prevent him from signing any re-mortgage and she said that this was the last thing she wanted to happen. I felt that Heather had not fully thought this matter out and I asked her to consider this matter to revert to me with instructions. She advised me that when she received the mortgage documents from the Bank, she would ask me to look over the mortgage documents and at that stage she would instruct me as to what she wants me to do.”

70. Ms Carthy was shown a copy of a letter dated 23 September 2005 from her to “Ms Heather Cody” addressed to the Property, enclosing copies of “the Bank of Ireland offers in duplicate which has been furnished to me by Peter Cody” and also tax documentation and an accountant’s letter furnished by him. The letter says that as soon as Ms Carthy received “the accountants report” she would revert to Mrs Cody.

71. Ms Carthy confirmed that she had provided both offer letters to Mrs Cody as appeared from that letter. When asked about the fact that the offer letters referred to Mr Heather McMillan, she said that she assumed it was Mrs Cody’s maiden name and that the reference to ‘Mr’ was a typographical error.

s

72. Ms Carthy stated in evidence that the fact that the offer letters referred to a payment of €200,000 to Mrs Cody rather than €225,000 would not have changed her advice to Mrs Cody.

73. Ms Carthy was shown another letter of 23 September 2005, from her to Padraig Ferguson of Brenson Lawlor & Co Accountants. The letter enclosed her attendance note and the documentation received from Mr Cody and sought Mr Ferguson’s advice. In the letter, Ms Carthy expressed significant scepticism about the figures provided by Mr Cody and referred to feeling that the “wool is being pulled over my eyes somewhat”.

74. The letter to Mr Ferguson also enclosed “these remortgage documentation” and noted that she had advised her client not to sign them. Ms Carthy confirmed in evidence that she had sent that letter to Mr Ferguson with the enclosures referred to.

75. Ms Carthy was then shown a letter from her to Mrs Cody dated 24 October 2005 referring to a recent telephone conversation and enclosing a letter in respect of the mortgage application. The letter notes that Mrs Cody has decided not to take Reidy Stafford’s legal advice in respect of the matter. The letter was addressed to Heather Cody at the Property and marked “Private and Confidential”.

76. Ms Carthy gave evidence that this letter was preceded by a conversation with Mrs Cody in which she was very critical of the delay on behalf of the forensic accountant coming back with a report and stated that time was against her. Ms Carthy said that she had sent a reminder to the forensic accountant on 20 October 2005 in accordance with Mrs Cody’s instructions, but that she subsequently received a phone call from Mrs Cody saying that she absolutely wanted to proceed with the re-mortgage of the family home and that she required a letter confirming that Ms Carthy had independently legally advised her in respect of the obligations pertaining to the said mortgage.

77. Ms Carthy said that her advice was “steadfast” not to execute the documentation, but that she furnished the letter to Mrs Cody as requested.

78. She was shown a signed copy of the letter dated 24 October 2005 addressed “To Whom It May Concern”, referred to above, and confirmed that that was the letter she sent to Mrs Cody. She also confirmed she had not provided the letter to any person other than Mrs Cody.

s

79. Ms Carthy stated that she had no communication with Bank of Ireland in relation to the matter.

80. Mrs Cody cross-examined Ms Carthy. Ms Carthy confirmed that Mrs Cody had attended her in relation to a family law matter. When Mrs Cody put to Ms Carthy that it was Ms Carthy who had told Mrs Cody about the proposed re-mortgage rather than the other way round, Ms Carthy said that that was not correct and that Mrs Cody had provided her with the details contained within the attendance note.

81. Mrs Cody suggested that the meeting had lasted approximately an hour. Ms Carthy did not disagree, describing it as “quite a lengthy attendance”. Ms Carthy agreed that she did not have the loan offer letters at the time of the consultation but confirmed that she had sent them to Mrs Cody afterwards. Ms Carthy said that she was in a position to advise Mrs Cody at the meeting of the meaning and effect of being jointly and severally liable in respect of the re-mortgage based on the details provided to her by Mrs Cody.

82. Mrs Cody challenged Ms Carthy on the details contained in the attendance note, for instance, that she wanted a mortgage to pay for college fees, the size of those fees, or that she intended to start a business. She suggested that she wouldn’t have known that it was possible to get a mortgage to pay college fees and that they were, in any event, less than stated in the attendance note. She said she had no plans to start a business. Ms Carthy said that that was the information provided by Mrs Cody at the time.

83. Ms Carthy couldn’t recall whether she had had a second consultation with Mrs Cody when Mrs Cody put to her that there had only been one meeting, but repeated her evidence that Mrs Cody had telephoned her about the delay in obtaining the forensic accountant’s report, and had again telephoned her on 24 October 2005 requesting the letter confirming that she had received legal advice. When Mrs Cody put it to her that she had never returned to Ms Carthy’s office, Ms Carthy pointed out that Mrs Cody had, in fact, returned, seeking legal advice, in 2015.

84. Mrs Cody suggested that Ms Carthy had been in contact with Mr Cody about the mortgage. Ms Carthy said her only engagement with him was when he furnished the

s

documentation which she then provided to Mrs Cody in her letter of 23 September 2005.

Mrs Cody suggested that Mr Cody would say otherwise.

85. Mrs Cody asked why the ‘To Whom It May Concern’ letter referred to one loan application, Ms Carthy said that the two were intertwined – each loan offer letter refers to the other – and that she thought it was appropriate to refer to only one of them.

86. At the conclusion of her evidence, I asked Ms Carthy whether she knew Mrs Cody before their meeting on 31 August 2005. She said she did not. She also confirmed that she had had no dealings with Mr Cody before that date and that she “did not know them at all”.

Justin Cody

87. Justin Cody was subpoenaed by BOIMB to give evidence. He explained that he is a solicitor in James Cody & Sons Solicitors and was practising there in 2005.

88. He was asked about the solicitor’s undertakings executed by him in respect of both loan applications. The undertakings each purport to have been signed by Mr and Mrs Cody in the presence of Justin Cody. Justin Cody, however, confirmed that Mrs Cody’s signature was not signed in his presence.

89. He explained that Mr Cody had asked him to act for them both in relation to the loan applications but that he had advised Mr Cody that he could not act for Mrs Cody and that she would require separate advice, as there might otherwise be a conflict of interest given that some of the funds were to be used to pay down Mr Cody’s overdrawn practice account.

90. Justin Cody said that Mr Cody presented the documents to him with Mrs Cody’s purported signature already on them. He said that he asked Mr Cody why Mrs Cody wasn’t coming to the office to sign the documents, and was told that she was unwell, which he accepted because she had had recent health difficulties – he had, in fact, visited her in hospital. He said that he had no reason to doubt that Mrs Cody had signed the undertakings and that he took comfort from the fact that she had obtained independent legal advice, as confirmed in writing. He said that he believed that the signatures were Mrs Cody’s and that she had executed the loan offers and that he had her instructions to give the undertakings.

s

91. He confirmed that he had never advised BOIMB until giving evidence in court that his statement that the undertakings had been signed in his presence was false.

92. Justin Cody was then shown his letter sent to BOIMB requesting cheque requisitions dated 22 November 2005 and setting out certain undertakings to BOIMB, and the similar letter dated 1 December 2005. He couldn’t recall the reason for the second letter. The letters referred to a Deed of Financial Arrangement having been executed. He said that he recalled seeing it but had not retained a copy. He couldn’t recall whether he had sent it to BOIMB.

93. The letters referred to Mrs Cody having received independent legal advice. Justin Cody was shown the ‘To Whom It May Concern” letter. He confirmed that it had been faxed to his office on 29 October 2005 but could not recall from whom. He subsequently explained that the requirement for such a confirmation letter came at the request of BOIMB.

94. He confirmed that he received loan monies from BOIMB on 14 December 2005. In accordance with his undertakings, he discharged the existing mortgage in the sum of €206,938.46. He transferred €150,000 to Mr Cody’s capital account. He also sent a cheque in the sum of €200,000 to Heather MacMillan. He confirmed that that cheque had been lodged. The cheque was returned to James Cody & Sons bearing a stamp from Ulster Bank.

95. He confirmed that the mortgage had been registered with the Land Registry as per the undertakings, but did not believe that he had done this himself.

96. He was shown the pleadings and the allegations of collusion against him and his firm.

He denied those allegations.

97. Mrs Cody then cross-examined Justin Cody. She put it to him that she would have been well enough to attend a meeting with him in November 2005 because she had sufficiently recovered from her illness. He said that he didn’t know anything about that.

98. Justin Cody also explained the circumstances in which Mr Cody left the practice of James Cody & Sons. Having been a partner of the firm, he was made an employee in 2009 and his contract was terminated in 2011 when he became “uninsurable”.

Brendan Byrne

s

99. Mr Byrne worked for the Bank from 1978 until his retirement in 2018, in various positions. In 2005 he was senior business manager with BOIMB in Carlow, dealing with business banking. James Cody & Sons was one of his clients. In addition, he had dealings with Peter Cody, who had a client who was a significant customer of BOIMB.

100. He gave evidence that although Mr and Mrs Cody’s facilities were dealt with at branch level, during the course of a meeting with Mr Cody, Mr Cody asked him to look at an “equity release” from his principal residence. He recalled that it was for the release of approximately €450,000 of which €200,000 was to go to his “ex-wife” and €200,000 to Mr Cody’s partnership account. Mr Byrne understood that the equity release was part of a separation settlement. Although not usually involved in mortgage lending, he agreed to look after the loan.

101. He gave evidence that he told Mr Cody that he needed to meet Mrs Cody because he wanted “to make sure that she understood the nature of the transaction and what was being proposed before we put an application together”. He said that he then met Mrs Cody in the middle of August in his office in Carlow, in the business centre at the branch of the bank there.

102. He said that he remembered that they got to discuss what he wanted to discuss, that she understood what was being proposed and understood the risks. He recalled discussing the fact that one of Mrs Cody’s children was going to study in the United States.

103. He was shown a copy of a document entitled ‘Disclaimer Form Mortgage Protection Insurance’, a form in which the parties to a loan can indicate their agreement to proceed without life cover. The original of the document had been confirmed as one of the bankers’ books in Mr Downes’ evidence.

104. The document had been signed by him as witness to the signature ‘Heather MacMillan’.

In fact, the name Heather MacMillan had been signed twice, once in blue, once in black.

The document was also signed by Peter Cody, with Gillian McArdle, another BOIMB employee, who assisted Mr Byrne with this transaction, witnessing that signature.

105. Mr Byrne confirmed that it was his signature on the document. He stated that he couldn’t remember the meeting at which he signed the document, but confirmed that it could s

not have been done at his first meeting with Mrs Cody, as this document would have been created after any offer letters. He suggested it may have been presented to him already signed, and that because he hadn’t witnessed it being signed, he asked that it be signed again in his presence, thus explaining the presence of two ‘Heather MacMillan’ signatures. He said it would have been “natural” to him to get her to re-sign the document if it had been pre-signed.

106. In cross-examination, Mrs Cody asked Mr Byrne whether Mr Cody had attended the meeting that Mr Byrne had described, and he confirmed that he had not. She put it to him that she did not meet him in his office to discuss the loan, and Mr Byrne reiterated that he remembered the meeting in the office.

107. She asked Mr Byrne about an internal memo in which Mr Byrne discussed the need to revise the special condition regarding a separation agreement and Mr Byrne confirmed that he was getting his information from Mr Cody.

108. Mrs Cody suggested to Mr Byrne that they did meet once, in the foyer of a hotel, at a funeral, that he came over and spoke to Peter Cody and that that is when they talked about one of her children going to the United States. Mr Byrne said that he had no recollection of that meeting.

109. Mrs Cody suggested to Mr Byrne that someone had forged her signature on the document which he had then witnessed. He asked whether she meant that someone had masqueraded as her. When she confirmed that that is what she meant, he said that having met her a couple of months earlier, he would have recognised her.

110. When Mrs Cody put it to him that BOIMB had created a fictitious person, Mr Heather McMillan with a date of birth 18 August 1985, for the purpose of this loan, Mr Byrne said that he had never come across a contrivance of such a nature on any account and suggested that the reference to Mr McMillan with a 1985 birth date was simply an error that was carried on in BOIMB’s records.

111. Many of the other questions for Mr Byrne related to matters of which he had no personal knowledge. He did confirm his view that it would be inappropriate for BOIMB to open an account in a person’s name without their knowledge.

s

112. That concluded BOIMB’s evidence in the possession and judgment proceedings.

113. Mrs Cody’s first witnesses, Catriona Sinnott, Eilish Hanley and Siobhán Butler were taken out of order.

Catriona Sinnott

114. Ms Sinnott appeared pursuant to a subpoena. She confirmed that she is a bank employee and that Mrs Cody had approached her in a branch on the Friday of the bank holiday weekend in August 2019. Mrs Cody had a list of what she said were bank account numbers and asked Ms Sinnott to provide all relevant records relating to those accounts.

115. Ms Sinnott confirmed that she checked the first seven numbers on the list, all of which appeared to relate to accounts which had been closed, but then, given the time of day and the volume of the information requested, asked Mrs Cody to leave the matter with her. She then submitted a request that the information be sent to Mrs Cody. She did not retain a copy of the list provided by Mrs Cody.

Eilish Hanley

116. Ms Hanley also appeared pursuant to a subpoena. She confirmed that she worked in Mortgage Arrears in BOIMB from 2011 until 2016 and dealt with Mrs Cody during that time.

117. She recalled meeting Mrs Cody on a number of occasions to go through the Mortgage Arrears Resolution Process (MARP) and to help her fill out standard financial statements (SFS).

118. She was asked whether she thought it was strange that the focus was on Mrs Cody, but Ms Hanley said that her job was to have interaction with both parties where there is a joint mortgage. The SFS had to be signed by both parties. Her first meeting was with both Mr and Mrs Cody.

s

119. Mrs Cody asked her whether she remembered Mrs Cody telling her that Mr Cody had an unencumbered office building, why didn’t the Bank take that and Ms Hanley replying, “we don’t want to disturb the solicitors”. Ms Hanley said that she didn’t remember that.

120. She was asked about the negotiations between Mrs Cody and BOIMB, but said she had no knowledge of what terms BOIMB offered. When Mrs Cody asked her whether she remembered telling Mrs Cody that she wasn’t allowed to talk to her any more after Mrs Cody’s offer to BOIMB was declined, she said she didn’t remember saying that and that it was her job to engage with customers.

121. In cross-examination, Ms Hanley confirmed that she had met Mrs Cody three or four times at least. Mrs Cody had never told her that she hadn’t actually borrowed any money from BOIMB, that her signature had been forged on documents, that her husband had defrauded her, that BOIMB had defrauded her, or that James Cody & Sons had defrauded her. She never articulated any complaint about the making of the loans.

Siobhán Butler

122. Siobhán Butler gave evidence remotely. She was not provided with copies of the documents being discussed when giving evidence.

123. She confirmed that she was Mr Cody’s legal secretary at the relevant time. She said that she had never met Mrs Cody. She said that she would have witnessed any document Mr Cody asked her to at the time.

124. Ms Butler witnessed the signature on the 2007 mortgage. She said that a copy of the document had been provided to her by Mrs Cody in the week before trial by text. She said that she couldn’t recall whether there was a signature on the document when she purportedly witnessed it, but that it wasn’t signed by Mrs Cody in front of her.

Heather Cody

125. Mrs Cody commenced her evidence in the following way (Day 4, page 15):

s

“I am the ex-wife of Peter Cody, solicitor, from James Cody & Son. Over the years, between 2010 and -- sorry, 1985 and 2010, there were in excess of 40 bank accounts created in my name; in the joint names of Heather Cody, Peter Cody; Peter Cody, Heather McMillan; and a fictitious fraudulent name of Mr. Heather McMillan, MC Millan, and they were joint accounts created in collusion with Bank of Ireland. And they were used for loans and mortgages on various properties linked to me without my knowledge or consent.”

126. This is the essence of Mrs Cody’s defence to BOIMB’s proceedings, and of her own claim against the Bank.

127. She stated that she was a “victim” of Mr Cody and the Bank. She said that she had never had a consultation with a bank manager who talked her through mortgage documents, particularly the mortgage in question and never had a consultation with a legal representative who informed her of the legal consequences of a mortgage. Most seriously, she said, the mortgage was created in a fictitious name, Mr Heather McMillan.

128. She said that all of this only came to light when she started making data access requests.

129. She said that the Bank of Ireland “traumatised” her over the last twelve years through every court in the land while “absolutely protecting” Mr Cody, suggesting that the practice of James Cody & Sons was “one and the same” with the Bank because, it seems, it has acted for the Bank in repossession proceedings. She described how she stayed at home and looked after the couple’s six children while Mr Cody worked as a solicitor. She described him as a workaholic.

130. She referred to having “lost” their first house, in Ramstown, which she and Mr Cody had bought in 1990, but almost immediately also referred to it as having been sold in 1999.

She said that she had been unaware that it had been subject to a mortgage. She and Mr Cody built the Property the subject of these proceedings in or about 2000 and Mrs Cody said that she believed that it was being built with the proceeds of sale of the Ramstown property, but that she has since discovered that Mr Cody was creating mortgages, “forging her signature”, without her knowledge.

s

131. She said that around the time of the matters the subject of these proceedings, Mr Cody had begun a “reckless, very inappropriate” lifestyle. He bought a house for his own use in Carlow in January 2005.

132. She referred to €200,000 of the loans the subject of these proceedings being used “on his say” to renovate the Sea House property at Ardamine. A further mortgage was granted on that property in 2008, and they lost that property because “I hadn’t realised he put a mortgage on it”.

133. She contended that when Mr Cody got into financial difficulty, the Bank started picking on her and protecting him. She said that she tried to deal with the Bank and made a proposal that she be permitted to stay in the Property for five years until the last of her children finished school. She said that the Bank also said they would require Mr Cody’s Carlow property. She queried why they would not take the office building which he owned, the premises of James Cody & Sons Solicitors. She said that the Bank representative she was dealing with, Eilish Hanley, said that the Bank did not want to disrupt the solicitor’s firm.

134. Mrs Cody then went through a series of documents which had been provided in response to data access requests. She identified bank documents, referred to above, in which she is misdescribed as ‘Mr’, with a wrong date of birth given, and in which she is described as being a solicitor with no children. She referred to a letter from the Bank in 2019 apologising for a statement having been sent to the wrong address. She identified documents containing a series of what she suggested were account numbers “associated” with her, of which she wasn’t aware. She repeatedly claimed that there were in excess of forty accounts.

She referred to the documents surrounding the 2008 loan relating to the Sea House property and contended that her signature was forged on these documents too, and that a bank employee had not witnessed her signature.

135. She made various complaints about her treatment by the Bank and its representatives.

In particular, she complained that a summons server had been sent to the Property the night after she had written to the solicitors for the Bank advising that she had to go into hospital for treatment. She claimed that the Bank had had her appeal struck out when she was, as she had advised, in hospital with one of her children. And she complained about the Bank’s

decision to serve two of her adult daughters, who reside in the Property and have special s

needs, with copies of the possession proceedings. She acknowledged that she had been asked to accept service on their behalf but queried what mother would agree to that. All these matters caused her, she says, extreme stress and distress.

136. She referred to the Carlow property bought by Mr Cody and suggested that the Bank had claimed she was liable for that loan. She said that the property had been sold by agreement between Mr Cody and the Bank.

137. Mrs Cody was cross-examined about the valuation of the Property carried out in 2005 and was asked whether she remembered it. She said that she did.

138. She said that she didn’t know that there was any mortgage on the Property prior to 2005.

She was asked about the attendance note of her meeting with Geraldine Carthy and how Ms Carthy had been able to record borrowings of €200,000 on the Property. She said that Peter Cody had clearly contacted Ms Carthy beforehand. It was Ms Carthy who had told Mrs Cody about the proposed mortgage, not the other way around. She said that Ms Carthy had not been telling the truth about liaising with Peter Cody.

139. When asked about other details of that meeting recorded in the attendance note, Mrs Cody said that the attendance note had been fabricated because “you lawyers are all in it together” and that Ms Carthy had “completely exploited the meeting to please Peter Cody”, though she subsequently said that she thought Ms Carthy “is nice, I don’t think she had a motivation.”

140. She said that Ms Carthy hadn’t sent her copies of the loan offers or Mr Cody’s financial evidence as Ms Carthy had claimed in evidence. She initially said that the letter confirming that Mrs Cody had received legal advice had not been sent to her, but when pressed, she said that the letter “wasn't significant to me, I don't remember that letter, truthfully.”

141. She also initially said that she had never spoken to Ms Carthy again after their 31 August meeting but subsequently accepted that Ms Carthy might have rung her, “to clarify something about the mortgage or something”.

142. Mrs Cody was asked about bank statements being sent to the Property prior to the events the subject of these proceedings, which indicate outstanding borrowings of approximately €200,000 in 2005 and it was suggested that she must have known from them about the s

existing borrowings on the Property. She suggested that the statements were also being sent to Mr Cody’s Carlow address.

143. Mrs Cody confirmed that the payment of €200,000 out of the proceeds of the loans the subject of these proceedings was lodged to her bank account, but claimed that it was not for her “personal gain”. She suggested that Mr Cody would control how she used the money, and that she was the victim of coercive control. When reminded that her evidence was that Mr Cody did not live in the Property at this stage, she said that she never banned him from being around. She said that the money was used to renovate the Sea House property and that she “was responsible for that project”.

144. Mrs Cody denied telling Ms Carthy about any proposal to start up a new business, as referred to in the attendance note. It was put to her that her replies to particulars in these cases had referred to a business account being transferred to Ulster Bank in 2006 and the business closing in 2010. It was suggested that this was consistent with the attendance note.

She said that there had been an earlier business, a coffee shop, and she subsequently opened another business, an internet café, but that there was no business at the time.

145. She was asked about the sale of the Sea House. She acknowledged that she agreed to the sale of the house to pay off the mortgage, of which she said she had been unaware. She was asked why she didn’t make the same complaint then that she makes now. She said no one would have listened. It was put to her that a financial broker, Mr Conor McCarthy, would say that he had met Mrs Cody prior to that loan being advanced and that she was well aware of the nature of the transaction. She denied discussing that transaction with Mr McCarthy.

146. She was asked about the negotiations with BOIMB. She said that she had asked to remain in the house for five years, but that BOIMB had requested that the Carlow property also be sold and that it be given a charge over the unencumbered office property. She had rejected that proposal as unacceptable.

147. She was taken through correspondence from 2015, in which Mrs Cody refers to herself as joint mortgage holder on the Property and seeks a settlement, by a voluntary sale of the Property. It was put to her that at no time prior to the first letter from BOIMB threatening legal proceedings had she ever suggested that she was not a party to the loans and mortgage s

the subject of these proceedings and that her first letter suggesting that that was the case, dated 12 August 2015, followed immediately after that legal threat. She could not identify ever having raised the issue previously, either in correspondence or in meetings with Bank representatives.

148. In relation to the unencumbered office property owned by Mr Cody, it was suggested to Mrs Cody that the reason that BOIMB had not sought to enforce its judgment against Mr Cody, for instance by registering a judgment mortgage over that property, was because of a caution which Mrs Cody had had registered against the office property on 6 December 2013, on foot of a Circuit Court order dated 18 October 2013 made in family law proceedings, restraining the registration of a judgment mortgage against the office property. The order was made pursuant to section 5 of the Family Home Protection Act 1976. The in camera rule was lifted in relation to this aspect of the order, in order to enable the Bank to be notified of it. When it was put to her that she was protecting Mr Cody’s assets from BOIMB, Mrs Cody said that it was her then solicitor who obtained that order.

149. She was asked about her decision to release Mr Cody and James Cody & Sons from the proceedings, and she said that, having seen them at a family funeral, she realised she did not want to see them on the other side of a courtroom. It was put to her that she was acting in concert with Mr Cody in relation to these proceedings and that they were working together to frustrate BOIMB, which she denied.

150. The cross-examination then addressed the service of proceedings on Mrs Cody’s daughters, which I will address below.

151. She was asked about the forty accounts which she alleges the Bank had created without her knowledge. She confirmed that no demand or claim had ever been made against her in relation to these alleged accounts, that she had never lodged money into them, or incurred any expenses from them. It was put to her by reference to the discovery documents that there were a total of 13 accounts created in her name between 1985 and 2010, seven with Bank of Ireland and six with BOIMB, as set out in the affidavit of discovery, but she said that the Bank’s own documents revealed many more accounts.

s

Peter Cody

152. Mrs Cody called Mr Cody to give evidence. He was not subpoenaed. Mrs Cody only asked him four questions. He said that Mrs Cody did not sign the mortgage papers in question, that he did not bring them home to Mrs Cody, that she did not go into his office or the Bank to sign them, and that she had never seen them.

153. He was cross-examined more extensively.

154. He confirmed that he qualified as a solicitor in 1981, and that he joined James Cody & Sons in 1984. He confirmed that he left in 2011 because of advice that the practice wouldn’t be able to insure him. He said that this related to five “spurious” claims against him which were ultimately disposed of. He accepted that he had been reprimanded by the Law Society for forging the signature of a commissioner for oaths on probate papers.

155. He accepted that he had no defence to BOIMB’s possession and judgment proceedings and that judgment had been entered against him. He had never been served with Mrs Cody’s proceedings against him.

156. He denied that there had been any collusion between him and the Bank and said that the loan accounts were accounts to buy properties.

157. He agreed that Mrs Cody was advanced €200,000 out of the proceeds of one of the two loans the subject of these proceedings. Mr Cody said that Mrs Cody knew about that loan but only discovered the second loan subsequently. He was unsure about when she discovered the first loan. He said that she didn’t know that it was backed by a mortgage on the family home. His evidence was that she was at all times aware of the original mortgage on the Property but she wouldn’t tolerate another mortgage on the Property.

158. Mr Cody agreed that there was a sum outstanding on the mortgage of approximately €200,000 in 2005 and that he owed €150,000 on his practice account and was coming under pressure from the other partners to clear that deficit.

s

159. He said that he discussed a loan of an additional €450,000 with a bank official but he didn’t think that that was Mr Byrne. He told BOIMB that he needed the money for a separation agreement, but that wasn’t true.

160. He said that he couldn’t remember when it was decided that the €200,000 would be used for the Sea House property, but when it was put to him that it was more likely that this was decided before he asked for the money, he agreed.

161. Mr Cody contended that he couldn’t remember the details of the loans the subject of these proceedings, but when asked about the signatures on the first loan offer letter in the name Heather MacMillan, he said that “Heather did not sign that document”. When asked who did, he said the following (Day 5, p. 32):

A. The answer to that now is going to attract criminal sanctions on somebody, but I'm telling you she didn't sign that.

162. It was suggested to him that it would be reasonable for the court to infer that he had signed Mrs Cody’s name. He said (Day 5, p. 32):

A. It could be inferred, the Judge -- that is a matter for the Judge, not me. But I'm just telling you Heather did not sign that document.

163. He was asked about the reference on the loan offer letters to Mr Heather McMillan, which he said must be Mrs Cody, and to the address which he explained was an amalgam of his Carlow property and his office address.

164. As regards the signatures on the second loan offer, the client retainer and authorisation purportedly witnessed by Justin Cody and the mortgage, Mr Cody’s evidence was in similar terms to that relating to the first loan offer letter. He also said that he had written the letter to the Bank asking it to amend the special conditions to refer to a financial settlement instead of a separation agreement.

165. He was shown the letter from Ms Carthy in which she referred to Mr Cody having furnished her with the loan offers. Initially, he suggested that he hadn’t furnished them to her, then amended his evidence to suggest that he couldn’t remember so doing. He said he s

didn’t remember ever having any dealings with Ms Carthy, who he did not know at the time.

He then seemed to accept that he had sent one loan offer and some financial information to the offices of Reidy Stafford at the request of Mrs Cody. He said that he didn’t provide any other information to Ms Carthy.

166. He denied any knowledge of a meeting between Mrs Cody and Mr Byrne.

167. In relation to the deed of financial arrangement, he said that there wasn’t one, but that there was “a piece of paper purporting to be one”.

168. He was asked about the 2008 loan for the Sea House. It was put to him that this loan was arranged through a broker, Conor McCarthy, who would say that Mrs Cody was aware of the loan. He couldn’t remember Mr McCarthy meeting Mrs Cody. He didn’t remember whether she was aware of that loan, but eventually acknowledged that she probably was. It was only mortgages over the family home which she had a difficulty with.

169. He was asked about the Circuit Court order pursuant to which the caution was registered and confirmed that he had not objected to it. It was put to him that section 5 of the Family Home Protection Act 1976 only applied to the family home, and he was asked why, therefore, he didn’t oppose the making of the order which clearly did not relate to a family home. He said that it was only an interim order, although he did not dispute that it remains in place.

170. It was put to Mr Cody that, on his evidence, his conduct was a “gross betrayal” of Mrs Cody. He accepted that “she was deceived”. It was put to him that it was surprising then that they maintained good relations and that their financial affairs remained entangled, in that they filed joint tax returns. He said it was easy to be cordial and that it made financial sense for them to file a joint return.

Brendan Moriarty

171. Unusually, Mrs Cody subpoenaed Mr Moriarty, the solicitor for the Bank, to give evidence.

s

172. Much of the initial questioning was about the conduct of the proceedings by the Bank.

In substance, Mrs Cody put it to Mr Moriarty that the Bank and/or he had acted inappropriately in their conduct of proceedings and in the instructions given to counsel, allegations which Mr Moriarty, unsurprisingly, did not accept.

173. He was asked about the circumstances in which Mrs Cody was served with proceedings in May 2017, very shortly after she had written a letter advising of a serious medical condition and containing certification of same, which sought a delay of proceedings for six months. Mr Moriarty explained that at the time of the receipt of that letter, summons servers had already been instructed to effect service and in fact did so before Mr Moriarty saw the letter from Mrs Cody, which he only saw the morning after it was sent. He said that in light of Mrs Cody’s condition, the Bank agreed to adjourn all extant proceedings for at least three months. The Bank did take further steps some five months later, issuing a motion for liberty to enter final judgment, but further medical evidence was received, and that motion was not served. Ultimately, the motion was served on her in April 2018, after Mrs Cody had appeared in court when the matter was listed, notwithstanding that the motion had not been served. This was more than eleven months after Mrs Cody’s initial request for a six-month pause.

174. He was asked about the costs of the High Court proceedings in which she had been successful, Mrs Cody claiming that he had refused to reimburse her for expenses to which she was entitled. Mr Moriarty’s evidence, by reference to the correspondence, was that he had at all times made clear that the Bank would discharge any valid vouched claim, but that Mrs Cody had not submitted such a claim.

175. There was detailed engagement about the Bank’s service of the possession proceedings on Mrs Cody’s adult daughters. Mr Moriarty explained that the Bank took the view that they were obliged to serve any person in occupation of the Property – presumably by reference to Order 9, rule 9 of the Rules of the Superior Courts (“the Rules”) – but that, owing to the vulnerable position of Mrs Cody’s daughters, who both have special needs, they sought to avoid the necessity for personal service on them, by having Mrs Cody accept service, but she refused. Again by reference to the correspondence, Mr Moriarty showed that he had made every effort to make clear that the daughters were not required to participate in the proceedings.

s

176. Finally, he was asked about Mrs Cody’s appeal being struck out when it was called over in the High Court on the Thursday prior to the hearing. He explained that the Bank had not applied to have it struck out, it had been struck out because Mrs Cody did not attend to call on her appeal – because her daughter was unwell – but that there was no issue about having the appeal reinstated. BOIMB’s counsel had not appeared at the call over. The appeal was reinstated by agreement the following week.

Paraic Oates

177. The Bank called Mr Oates, an employee of the Bank of Ireland, to give evidence in defence of Mrs Cody’s proceedings against it. Mr Oates had sworn Bank of Ireland’s affidavit of discovery in the proceedings.

178. In broad terms, Mr Oates explained that he searched Bank of Ireland’s records for the forty purported account numbers identified by Mrs Cody. His evidence was that he had been able to identify seven accounts in Mrs Cody’s name. He explained that he searched Bank of Ireland’s records by reference to various variations of the spelling of Mrs Cody’s married and maiden names and of her address. Many of the other purported account numbers identified by Mrs Cody were, in fact, Irish Credit Bureau trace numbers, not account numbers. In addition to the accounts claimed by Mrs Cody, he had discovered one additional account, with an account number similar but not identical to an account claimed to exist by Mrs Cody.

179. Mr Oates had no knowledge about the matters the subject of these proceedings other than the accounts he had discovered during his searches to comply with Bank of Ireland’s discovery obligations.

Conor McCarthy

180. Mr McCarthy is a retired financial consultant. He gave evidence that Mr Cody was a client of his in 2008 and that he met Mrs Cody that year.

s

181. He gave evidence that Mr Cody had approached him to organise an equity release on a property and that Mrs Cody had subsequently rung him (or he may have rung her) to discuss the proposal. He then met her for coffee in a hotel in Gorey where he outlined the nature of the joint and several borrowings proposed.

182. He was cross-examined by Mrs Cody and told her that he had wanted to make sure that she understood the nature of the loan, because he was aware that she had two children with special needs and that he had a natural empathy for her.

183. She put it to him that Mr Cody had advised him that he was going to sell his practice shares. He couldn’t recall that or discussing it with Mrs Cody.

Cormac Downes

184. Mr Downes was called to give evidence a second time as a defence witness in Mrs Cody’s case. He had carried out a similar process to Mr Oates in preparing BOIMB’s affidavit of discovery and gave similar evidence on its behalf, indicating that six BOIMB accounts had been identified from the list of purported accounts provided by Mrs Cody.

185. His evidence regarding the discovery process was similar to Mr Oates’ evidence. He had discovered six BOIMB accounts, the balance of the purported account numbers provided by Mrs Cody did not relate to any BOIMB account, many were Irish Credit Bureau trace numbers.

186. Two documents were put to Mr Downes, both headed ‘Letter of Authority – appointing a representative’ and dated 19 December 2016. In relation to each, Mr Cody appointed Mrs Cody to act as his representative in relation to specified accounts. The first document references one account, the second two. Mr Downes stated that he had not been able to identify one of the two accounts on the second document and speculated that the proper account number had been mis-transcribed. Mrs Cody put it to him that it was another bank account and he confirmed that from his searches, there was no account with that number associated with Mrs Cody.

s

187. Mr Downes also gave evidence regarding the date of drawdown of loans. Mrs Cody had suggested that the fact that the cheques issued from the Bank on 14 December 2005, and the date of drawdown of the loan was given on the accounts as 15 December 2005 called into question whether the funds had been provided by BOIMB at all. Mr Downes explained that the date of drawdown given on the accounts was a deemed date of drawdown and that it was BOIMB’s invariable practice that cheques would issue for a loan prior to the deemed date of drawdown.

188. Mr Downes clarified in his evidence that the instruction on BOIMB’s system regarding the address to which bank statements should be sent had been changed in 2012. From that date, statements were required to be sent to both Mr and Mrs Cody, but until then, the instruction on the accounts was to send statements only to Mr Cody’s address.

189. Mrs Cody questioned him about inaccurate information in the loan offer letters, and he suggested that the information in the letter would have come from the loan application but the complete application had not been retained, only the page on which the loan application had been signed. That page, ‘Declarations, Authorisations and Consent’ and dated 23 August 2005, bears the signatures ‘Peter Cody’ and ‘Heather Cody’.

Imelda Leahy

190. Mrs Cody requested that she be permitted to call Ms Imelda Leahy at the close of the Bank’s evidence. Counsel for the Bank did not object, so I permitted her to be called out of turn. She gave evidence remotely.

191. Ms Leahy worked as a solicitor in James Cody & Sons from 1999 until 2009. She gave evidence that she signed as a witness to signatures on the instructions of Mr Cody “on many occasions” when the person signing was not present. She stated that she had been asked to witness Mrs Cody’s signature when she was not present and had done so. In circumstances where Ms Leahy gave evidence remotely, no document was put to her as being one where she had witnessed Mrs Cody’s signature. She identified this as having occurred some time after the birth of Mr and Mrs Cody’s youngest child.

s

192. In cross-examination, Ms Leahy freely accepted that she had been fired by James Cody & Sons and had subsequently been struck off as a solicitor in 2018.

VI Amendment application

193. Following the close of evidence, the parties were invited to provide written submissions and a date was fixed for the making of further oral submissions.

194. Prior to delivering submissions, BOIMB sought and was granted leave to amend its pleadings in the possession proceedings and the judgment proceedings as set out above. The motion was heard on 11 April 2025. The parties exchanged written submissions on the amendment application.

195. The notice of motion set out the amendment sought. It was in the following terms:

“Without prejudice to the foregoing, the Second Named Defendant is estopped from denying that she signed the First Loan Offer Letter, the Second Loan Offer Letter and/or the Mortgage and/or that she was not a party to the contract contained in the First Loan Offer Letter, the Second Loan Offer Letter and/or the Mortgage (hereinafter, collectively, the “Transaction”) in circumstances where, at all material times, she represented to the plaintiff that she was a party to the Transaction comprised in the First Loan Offer Letter, the Second Loan Offer Letter and the Mortgage by, inter alia:

a. executing a Disclaimer Form Mortgage Protection Assurance in connection with the Transaction in the presence of an agent of the Plaintiff;

b. tendering a letter to the Plaintiff representing that she had been in receipt of independent legal advice in respect of the Second Loan Offer Letter (which said letter was expressly linked to the First Loan Offer Letter); and c. accepting the sum of €200,000, which said some had been earmarked for her personally under in the Transaction:

the Plaintiff relying on each of the foregoing representations in providing the monies the subject of the Transaction to, inter alia, the Second Named Defendant.”

s

196. In its motion grounding the application, BOIMB explained that it had relied on the loan and mortgage documentation on which Mrs Cody’s signature had apparently been witnessed when drafting its Statement of Claim in both sets of proceedings. However, in light of the evidence of Peter Cody, Siobhán Butler and Justin Cody, it appears that her signature was not witnessed as the documents suggest. This, it is suggested, puts BOIMB in a position which it could not “reasonably have expected” at the time of drafting its Statement of Claim.

In its substantive written submissions, BOIMB describes the amendment as having arisen from the “rather extraordinary developments at trial”. In this regard, it may be noted that all three witnesses who provided evidence that they had not, in fact, witnessed signatures, contrary to what appeared on the face of documents, gave evidence on foot of subpoenas.

BOIMB points out that one of the purported witnesses, Justin Cody, was a solicitor and officer of the court and it was entitled to rely on his representation that he had witnessed Mrs Cody’s signature.

197. While its “primary case” remains that Mrs Cody did execute the various documents, it wished, in the circumstances, to expressly plead, in the alternative, that Mrs Cody is estopped from denying that she signed the agreement in circumstances where, on its case, she had represented to BOIMB that she was a party to the transaction.

198. Mrs Cody objected strenuously to the amendment application, following as it did, the close of the evidence, stating that BOIMB should not be allowed to “put an estoppel” on her. She was, however, unable to identify any evidence which she would have tendered but had not, or any step in the proceedings which she would have approached differently, had the proposed amendment formed part of the initial claims.

199. The proper approach to amendment applications is explained in Croke v Waterford Crystal Ltd [2004] IESC 97; [2005] 2 IR 383 in which the Court adopted the following statement of principle from DPP v Corbett [2001] ILRM 674:

“The day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party. While courts have a discretion as to amendment that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendments should be made. If there might be prejudice which could be overcome s

by an adjournment then the amendments should be made and an adjournment also granted to overcome the possible prejudice and if the amendments might put the other party to extra expense that can be regulated by a suitable order as to costs or by the imposition of a condition that the amending party shall indemnity the other party against such expenses.” (at p. 678)

200. The Court of Appeal (Collins J) has recently summarised the relevant principles in Stafford v Rice [2022] IECA 47.

201. An amendment can be made at any time during the currency of proceedings (see MAU v Minister for Justice [2011] 1 IR 749). In Wildgust v Bank of Ireland [2001] ILRM 24, an amendment was permitted after the plaintiff’s case had closed, following a non-suit application by the defendants. In a reserved judgment, the court dismissed the plaintiff’s pleaded case, but permitted it to amend its proceedings to add a claim of negligent misstatement. This approach was upheld by the Supreme Court.

202. In Moorview Developments Ltd v First Active plc [2009] 2 IR 788, Clarke J (as he then was) refused an application for an amendment made after almost three months of trial. In doing so, he observed as follows (at p. 829):

“[123] 7.10 The only other question which arises concerns the possibility that if discovery were to be directed, additional evidence might emerge. However, it is in that context that it seems to me that the timing of the application is of particular relevance. Whatever might be the situation that would pertain if an application to amend were made at an early stage in the process, it seems to me that all of the authorities (see for example, the judgment of the Supreme Court in Wildgust v. Bank of Ireland [2001] I.L.R.M. 24) indicate that an amendment during hearing is not a desirable practice and should not frequently be permitted. The reason, of course, is that the risk of prejudice is all the greater where the amendment occurs while the case is at hearing. This is not the occasion to attempt to analyse all of the principles relevant to the limited jurisdiction to allow an amendment during the course of the hearing. It may well be that what might loosely be called "technical" amendments can more easily be allowed. Where, for example, a flaw in the case as pleaded emerges in the course of the hearing but where that flaw can be remedied without any significant prejudice, it would s

hardly be surprising that a court would allow such an amendment rather than see a party lose on a narrow pleading point.

[124] 7.11 On the other hand an amendment which would have the effect of allowing an entirely separate cause of action (even one which may bear some resemblance to at least some of the other claims already pleaded) is in a very different category. For the reasons which I have already sought to analyse there does not seen to me to be a stateable case on the evidence currently available for the proposition sought to be advanced by virtue of the amendment. The case could only go to trial if, therefore, full discovery was ordered, additional witness statements from all concerned were directed, and on the assumption that something emerged in the course of such a process which might afford the Cunningham Group a stateable case. To impose on these proceedings, which have already been at hearing for upwards of three months, such an additional claim would, in my view, be an inappropriate exercise of the court's jurisdiction to allow amendments. If the Cunningham Group wish to run such a case then it seems to me that it is more appropriately run in separate proceedings which can take their own course. Just because it cannot be demonstrated that a claim proposed to be included by amendment is bound to fail is not, in my view, a sufficient reason for permitting the amendment concerned when the case has been at hearing for a prolonged period. To permit such a practice on such a test has the potential to cause chaos for litigation.”

203. BOIMB argue that the amendment sought here is of the “technical” type which Clarke J indicated might more readily be permitted and does not involve a new cause of action at all. BOIMB’s case remains that Mrs Cody agreed to be bound by the loan and mortgage agreements.

204. Mrs Cody is particularly critical of the timing of the application. She says that her case has always been that she did not sign the documents in question and that the Bank can not claim to be surprised that the evidence supports that contention. There is some force to this.

In circumstances where Mrs Cody had averred on affidavit that she had not signed the documents, it could be said that it was within the realms of contemplation that the evidence might disclose that, contrary to what appeared on the face of the documents, no person had witnessed Mrs Cody signing the documents and that BOIMB might, therefore, have to make its case on that basis. s

205. Be that as it may, it seemed clear to me that the amendment sought was, as BOIMB suggested, at its height, a technical amendment, intended to avoid a potential outcome whereby BOIMB was defeated in its claims by a “narrow pleading point”. Moreover, and critically, Mrs Cody did not, at the hearing of the motion indicate how she had been or would be prejudiced in her conduct of the litigation by the amendment. Of course, if the effect of the amendment is to close off a gap in the pleadings through which Mrs Cody might otherwise escape liability, she could be described as having been “prejudiced”, but I do not understand this to be the type of prejudice which might defeat an amendment application.

Rather, had Mrs Cody been able to establish, or even suggest, that she would have conducted the case differently had the amendment formed part of the pleadings from the outset, or would require to call additional evidence in light of the amendment, I would likely have been persuaded that an amendment at the twelfth hour would be so prejudicial as to be impermissible. However, she could not identify any such circumstance. It is difficult, in fact, to imagine how Mrs Cody could have approached the cases differently, had the plea of estoppel always formed part of the cases.

206. In fact, the first question I asked counsel for BOIMB when dealing with the amendment application was whether the estoppel required to be pleaded at all since, on BOIMB’s case, it is an evidential estoppel, not a new cause of action, or indeed, any type of claim. BOIMB’s response was that the amendment application was being pursued out of an abundance of caution, in circumstances where the question of estoppel was not raised in the pleadings.

207. In order to be as fair as possible to Mrs Cody and to provide her with a further opportunity to oppose the amendment, and identify prejudice, I decided to make an order permitting delivery of amended Statements of Claim by BOIMB in both sets of proceedings, but without ruling that the amendment be permitted at that stage, and directed that both parties deliver submissions by reference to the amended claims. I made clear that, if, following consideration of the submissions, I concluded that the amendment would necessitate further evidence or prejudice Mrs Cody, the amendment would be disallowed. It didn’t appear that there was any necessity for Mrs Cody to deliver amended pleadings in reply, it being clear that she had already denied all of the matters relied on by BOIMB as allegedly grounding an estoppel.

s

208. I propose, therefore, to consider BOIMB and Mrs Cody’s arguments by reference to the amended claim. In the course of so doing, I will provide my conclusion on whether the application to amend should be allowed.

VII Arguments – BOIMB’s proceedings

209. In light of the proposed amendments, BOIMB makes four arguments, each in the alternative.

210. Its primary case is that the evidence enables the court to conclude that Mrs Cody signed the loan offers and the mortgage and that she is, accordingly, bound by them. BOIMB places reliance on the Bankers’ Book Evidence Act 1879 to prove the necessary documents and the relevant bank statements – in light of the evidence of Cormac Downes – but in truth, Mrs Cody did not challenge that evidence, only the authenticity of her signature on relevant documents and her agreement to the transaction.

211. As appears from the affidavit grounding the amendment application, BOIMB accepts that the evidence discloses that none of the purported witnesses to Mrs Cody’s signature in fact witnessed the signature and accepts that evidence has been given by Mrs Cody that she did not sign the documents. It contends, however, that a finding that she did sign the documents is still open to the court. In that regard, it relies on principles from criminal law in relation to circumstantial evidence, citing R v Exall (1866) 4 F&F 922 and People (DPP)

v Cumberton [2020] IECA 136 in its submissions.

212. It also refers to the decision of the High Court of England and Wales in Bank of St Petersburg v Arkhangelesky [2018] EWHC 1077, a case in which the court concluded, by reference to all the facts of the case, that the defendant had signed personal guarantees, notwithstanding that the only direct evidence as to signing was the defendant’s denials that he had signed the documents.

213. BOIMB also relies on the decision in Promontoria (Arrow) Limited v Burke [2018] IEHC 773 regarding the scepticism which a court should hold where a party negotiates on one basis and later challenges the fundamental premise of those negotiations (at para. 73):

s

“… the defendants, through their advisor, Mr. Deeney of AJS, engaged in negotiations with Capita on behalf of Promontoria to settle the alleged debt between March 2016 and March 2017 (albeit that the defendants maintain that any negotiations were with a view to agreeing a development and workout plan for the Bridgeford site and did not relate to the residual debt or any alleged personal liability of the defendants). However, it is clear from the affidavit sworn by Declan Brooks, Mr. Burke’s solicitor, on 2nd August, 2017 and from the affidavit sworn by Mr. Donnelly on 29th September, 2017, that the defendants retained Mr. Deeney of AJS to engage with Capita who were seeking financial information and proposals on behalf of Promontoria. It is difficult to see why the defendants would have done so in circumstances where they did not accept or were disputing that Promontoria had acquired their loan. Had they been genuinely disputing this, they would not have authorised Mr. Deeney to engage on their behalf with Capita/Promontoria.”

214. If the court concludes that, notwithstanding the circumstantial evidence relied on, Mrs Cody did not sign the documents, BOIMB contends that that does not establish that there was no agreement and that she is nonetheless a party to the transaction. In this regard, it relies on the decision of the High Court (Noonan J) in AIB v Sloan [2019] IEHC 270 (at para. 8):

“8. A number of putative defences have been raised by Ms. Sloan in response to the Bank’s application herein both on affidavit and by way of submission. The first is that the loan agreement exhibited in the Bank’s first grounding affidavit is not signed by her. That is so. Of course that without more cannot give rise of itself to a defence. The fact that a loan agreement is not executed does not mean that there is no agreement. It may mean that there is an additional evidential burden on the Bank to prove the terms of the agreement whereby the loans were advanced. A loan agreement that is purely oral is of course perfectly valid. Where the terms are set out in an unexecuted document, the Bank may be able to establish such terms by proving that the document was given to the plaintiff and the monies were subsequently drawn down, thus amounting to implicit acceptance of those terms. It is a question of proof in each case.”

215. It says that the evidence supports the contention that Mrs Cody agreed to the loans and mortgage, irrespective of whether she signed the relevant documents. It accepts that Mrs s

Cody could not be bound by the mortgage merely because she agreed to it if she didn’t sign it, unless its third alternative argument, arising from its amended pleadings, succeeds.

216. The third argument, in the alternative, arises from the doctrine of estoppel. BOIMB refers to the decision in Greenwood v Martins Bank [1933] AC 51, in which a husband’s name had been forged on cheques by his wife to access his bank account. When he discovered the fraud, he was persuaded by his wife not to tell the bank in question, but sued the bank after her death. The House of Lords concluded that his conduct was sufficient to ground an estoppel (at p. 58):

“The appellant's silence, therefore, was deliberate and intended to produce the effect which it in fact produced - namely, the leaving of the respondents in ignorance of the true facts so that no action might be taken by them against the appellant's wife. The deliberate abstention from speaking in those circumstances seems to me to amount to a representation to the respondents that the forged cheques were in fact in order, and assuming that detriment to the respondents followed there were, it seems to me, present all the elements essential to estoppel.”

217. During oral submissions, I queried with counsel for the Bank whether it was seeking to use estoppel to ground a cause of action. He argued that it was not, rather that, in this instance, the estoppel was a rule of evidence which precluded the raising of a defence – the Bank’s cause of action remained the same. He argued that this was contemplated by the seminal decision in Central London Properties Trust Ltd v High Trees House Limited [1947]

1 KB 130.

218. Reliance was also placed on the decision in Courtney v McCarthy [2008] 2 IR 376. In that case, the proposed purchaser of certain lands claimed (in a counter claim) for specific performance, relying on the vendor’s representation that the sale could complete at a date later than originally agreed provided that the purchaser complied with the other originally agreed terms. The Supreme Court concluded that the vendor was not entitled to resile from that promise, and the purchaser was entitled to an order for specific performance.

Geoghegan J, in discussing the question of whether estoppel was being used as a sword rather than as a shield, to borrow the commonly used metaphor, agreed with the following s

proposition from the English decision in Amalgamated Property Co. v Texas Bank [1982] 1 QB 84:

“In my view much of the language used in connection with these concepts is no more than a matter of semantics. Let me consider the present case and suppose that the bank had brought an action against the plaintiffs before they went into liquidation to recover moneys owed by A.N.P.P. to Portsoken. In the statement of claim in such an action the bank would have pleaded the contract of loan incorporating the guarantee, and averred that, on the true construction of the guarantee, the plaintiffs were bound to discharge the debt owed by A.N.P.P. to Portsoken. By their defence the plaintiffs would have pleaded that, on the true construction of the guarantee, the plaintiffs were only bound to discharge debts owed by A.N.P.P. to the bank, and not debts owed by A.N.P.P. to Portsoken. Then in their reply the bank would have pleaded that by reason of an estoppel arising from the matters discussed above, the plaintiffs were precluded from questioning the interpretation of the guarantee which both parties had, for the purpose of the transactions between them, assumed to be true.

In this way the bank, while still in form using the estoppel as a shield, would in substance be founding a cause of action on it. This illustrates what I would regard as the true proposition of law, that, while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on that estoppel, he would necessarily have failed. That, in my view, is, in substance, the situation of the bank in the present case.”

219. Similarly, BOIMB contends that it is not seeking to ground its cause of action on an estoppel, rather it relies on an estoppel to ensure that its claim in contract does not fail.

220. The final argument that BOIMB pleads in the alternative is that Mrs Cody is, in any event, liable to BOIMB for money had and received, as pleaded in its judgment proceedings.

In this regard, it places reliance on the High Court and Court of Appeal decisions in Bank of Ireland v Murray [2019] IEHC 234 and [2024] IECA 11 respectively. In those decisions, the courts applied the three stage test for an unjust enrichment claim identified in Corporation of Dublin v Building and Allied Trade Union [1996] 1 IR 468 (“BATU”) . I s

note that since the hearing of these proceedings, the Supreme Court has delivered its

decision on the appeal in that case, rejecting the appeal ([2025] IESC 24), both majority and minority decisions confirming the applicability of the three-stage BATU test. In circumstances where the Supreme Court upheld the decision of the Court of Appeal and High Court and applied the same test for unjust enrichment, it did not appear to me to be necessary to invite further submissions in light of that judgment.

221. In Murray, it was concluded that Mr Murray had not signed, or have prior knowledge of, relevant documentation pertaining to loans taken out in the joint names of him and his wife. He was nonetheless required to make restitution of monies received by him and of which he had the benefit.

222. On the basis of the rationale in Murray, BOIMB claims to be entitled to recover the sums advanced from which Mrs Cody directly benefitted, being the amount paid to discharge the existing mortgage together with the €200,000 paid directly to her.

223. As BOIMB only referred to Courtney v McCarthy in replying submissions – in response to a query from the court – I afforded Mrs Cody an opportunity to deliver further short written submissions addressing that case. She delivered submissions which complied with the court’s direction on 29 May 2025. She argued that estoppel “should not be used as a Legal weapon to undermine those less legally privileged or to exploit a complex legal Case which has already been heard or to override a fair and honourable Plenary Case for example.”

224. Mrs Cody claims that BOIMB’s case is based on false representations and fraud. She says that there is no evidence that she signed any document, received legal advice or signed any documents in the presence of a Bank representative or solicitor. She accepts that a signature is not necessary for there to be an agreement, but says that there was no oral agreement between her and BOIMB. She says that there is no basis for an estoppel.

225. In her submissions, she identifies a number of allegations of fraud. These include “identity theft” in which the Bank created a false person, Mr Heather McMillan.

s

226. She says that there was unlawful lending, in that the Bank created bank accounts in her name without her consent. She refers to loans relating to Ramstown, the Property and the Sea House being created without her knowledge.

227. In the course of the hearing, she referred to being the victim of coercive control on the part of her husband Mr Cody. This did not, however, translate to a plea of undue influence in circumstances, it can be surmised, where Mrs Cody claims that she was not a party to the relevant transaction at all.

228. Mrs Cody relies on the decision in Madigan v Promontoria (Oyster) DAC [2023] IEHC 741, a case in which the plaintiff claimed that she had not signed the relevant mortgage deed. The court (Heslin J) summarised the issue to be decided in the following way (at para.

3):

“In short, this Court’s task is to determine whether, on the balance of probabilities, the Plaintiff signed the mortgage, or not. If this Court finds that the Plaintiff did not sign the mortgage, the Plaintiff’s claim must succeed, the inescapable inference being that her signature was forged by another, rendering the mortgage a fraudulent instrument.

If this Court finds that she did sign the mortgage, there can be no question of such fraud and her claim must fail.”

229. In that case, the plaintiff led expert handwriting evidence to the effect that she had not signed the relevant documents. There was also disputed evidence regarding whether she had attended at a solicitor’s office to sign the documents. Having carried out a comprehensive analysis of all the evidence in that case, the court (Heslin J) concluded that the plaintiff had not signed the relevant documents and therefore her claim for damages succeeded.

230. In her submissions, Mrs Cody invited the court to reject the evidence of Mr Byrne, Ms Carthy and Mr Moriarty.

s

VIII Arguments – Mrs Cody’s case

231. In addition to the matters raised in submissions which can be regarded as a defence to the Bank’s claims, Mrs Cody claims that the Bank failed in its duty of care towards her. She alleges reckless lending on the part of the Bank.

232. She made numerous complaints about the Bank’s treatment of her during the course of these proceedings, reiterating in her submissions her claim that the Bank’s “plan was to protect Peter Cody and viciously attack me through every court in the land as the vulnerable party in the Case.”

233. The Bank in its submissions points out that the courts have repeatedly rejected the argument that there is a tort of “reckless lending”, referring to McConnon v President of Ireland [2012] 1 IR 449 and Healy v Stepstone Mortgage Funding Ltd [2014] IEHC 134.

234. They also rely on section 35(1)(h) of the Civil Liability Act 1961 and claim that in circumstances where Mrs Cody has released Mr Cody and James Cody & Sons from the proceedings, Mrs Cody becomes responsible for the wrongdoing of those parties. In its submissions, the Bank makes clear that this isn’t an acceptance that there is any substance to Mrs Cody’s claims, the success of which it describes as an “evidential, logical and legal impossibility”.

IX Issues to be decided

235. In light of the pleadings, evidence and submissions in BOIMB’s cases, the main issue to be decided is whether Mrs Cody signed the loan offers and the mortgage. A consideration of that question will necessarily involve a consideration of Mrs Cody’s claims of fraud.

236. The following issues arise in BOIMB’s proceedings:

• Did Mrs Cody sign the loan offers and/or the mortgage?

• If she didn’t sign, did Mrs Cody nonetheless agree to the transaction the subject of these proceedings?

s

• If she didn’t sign, is Mrs Cody estopped by her conduct from denying that she signed the relevant documents?

• If Mrs Cody is not bound by the transaction the subject of these proceedings, is she nonetheless liable to the Bank for money had and received?

237. There is some overlap between the issues in the Bank’s proceedings and Mrs Cody’s proceedings. These further issues arise in Mrs Cody’s proceedings:

• Did the Bank perpetrate a fraud on Mrs Cody?

• Was the Bank guilty of reckless lending?

• Did the Bank breach its duty of care towards Mrs Cody?

• Did the Bank target Mrs Cody and protect Mr Cody?

• Have the Bank conducted these proceedings in a manner giving rise to a cause of action on Mrs Cody’s part?

X Discussion – BOIMB’s proceedings

238. There are, it is apparent, significant conflicts of evidence on material issues in these proceedings. The credibility of almost all the witnesses has, therefore, been put in issue. In assessing the credibility of any of the witnesses, it is appropriate to consider their evidence as a whole and to consider that evidence in light of both established facts and other conclusions reached on the evidence. Where a witness’s evidence is internally consistent, and consistent with other factual conclusions, including objectively verifiable facts, it is more likely to be accepted. By contrast, evidence which is internally inconsistent or inconsistent with other known facts, is likely to be rejected. Moreover, where a witness gives evidence on a particular issue which by itself might be plausible, the plausibility of that evidence will be undermined if it forms part of an overall narrative which is implausible.

239. As noted above, BOIMB’s claim is straightforward. It has proved executed loan approvals and a mortgage over the Property. It is the registered owner of the charge. It has proven default in repaying the loans entitling it to possession under the mortgage. It has thus established the necessary proofs, by reference to the judgment of Baker J in, as it happens, s

Bank of Ireland Mortgage Bank v Cody [2021] IESC 26. The only aspect of the foregoing disputed by Mrs Cody relates to her execution of, and agreement to, the loans and mortgage.

240. Mrs Cody’s defence is that she did not sign the relevant documents and therefore is not bound by them. Her defence, however, is not limited to contending that she did not sign the documentation relied on by BOIMB in its proceedings, it is that she didn’t even know about the transaction, and that BOIMB has colluded with Mr Cody to, in effect, defraud her.

241. Before analysing the evidence, it is helpful to briefly consider each of the five witnesses whose evidence gives rise to the main disputes of fact in BOIMB’s proceedings. In this regard, I note that there was no significant disputes about the evidence of Justin Cody, Siobhán Butler, Eilish Hanley, or Catriona Sinnott. BOIMB invited me to consider that Imelda Leahy’s evidence was not reliable, but did not lead contradictory evidence.

242. The material disputed evidence involved Geraldine Carthy, Brendan Byrne, Conor McCarthy, Mrs Cody, and Peter Cody.

243. Ms Carthy presented as convincing in her evidence. Moreover, her evidence was wholly consistent with the documentary record. Having regard to the unusual circumstance where she was being cross-examined by Mrs Cody herself, there was a telling exchange when Mrs Cody challenged her on her evidence and the two engaged directly. Ms Carthy’s demeanour was that of a person urging the other to remember the encounter which she had just described. It struck me that there was nothing contrived about what presented as an entirely honest recollection by Ms Carthy of her engagement with Mrs Cody.

244. Similarly, Mr Byrne’s evidence was convincing. It is entirely credible that he would remember the slightly unusual circumstances in which he met Mrs Cody, given that he didn’t typically deal with mortgage applications. His evidence was consistent with the contemporaneous documents. He did not seek to embellish. His evidence regarding the likely circumstances surrounding his witnessing of a signature on the life assurance disclaimer form was far more plausible than Mrs Cody’s alternative theories and, indeed, is the only sensible explanation for the presence of two signatures purporting to be Mrs Cody’s, in different pens, on the form.

s

245. Mr McCarthy was also an entirely believable witness. He did not have a detailed memory of what occurred but presented a convincing basis for why he remembered as much as he did about his encounter with Mrs Cody in 2008. Given his personal circumstances, as detailed in his evidence, it is simply not remotely credible that he would have come to court to give anything other than truthful evidence. He had no reason whatsoever to give misleading evidence.

246. Mrs Cody’s evidence was, by contrast, unconvincing. It was full of internal contradictions – for instance, her complaint about BOIMB’s failure to enforce against Mr Cody when it is her actions which have frustrated that enforcement – and was contradicted by the relevant objective facts and by the other witnesses. Her denials of knowledge of the loans were given in generalities and when specific evidence or documents were put to her, she was evasive, preferring to repeat her complaints about BOIMB rather than address and engage with specifics. She made allegations against Mr Cody and James Cody & Sons which were inconsistent with her discontinuance of proceedings against them, and allegations against BOIMB with the thinnest of foundations, her interpretation (or misinterpretation as it emerged) of documents provided by BOIMB on foot of data access requests. In addition, she made allegations against Ms Carthy which were wholly unsupported by evidence and which were inconsistent with her own failure to make any complaint about Ms Carthy’s alleged misconduct and, indeed, her own actions in returning to Ms Carthy in 2015 in order to seek further legal advice. Mrs Cody seems to have pieced together a narrative from a patchwork of isolated facts, which ignores or is wholly inconsistent with the weight of the evidence.

247. Finally, Mr Cody’s evidence was, if anything, even more unconvincing than Mrs Cody’s. Unfortunately, his evidence was patently not completely honest. The pattern of his evidence suggested that he was prepared to make admissions where there was no risk to his interests, perhaps in an effort to seem more convincing overall, for example in relation to the Carlow and Ardamine properties which have already been sold, and the original mortgages on those properties discharged. His demeanour when doing so was relatively open, but when contrasted with his demeanour when giving the evidence about the transaction at the centre of BOIMB’s proceedings, this only served to undermine his evidence on that front.

s

248. The key evidence given by Mr Cody concerned the signing of the relevant documents.

Leaving aside the slightly absurd formula he adopted in order to encourage the court to infer that it was he, not Mrs Cody, who signed the relevant documents, without his actually saying so, his demeanour when giving that evidence was that of a person who was not telling the truth, not of a person confessing. He was evasive in evidence, and seemed to try to tailor his evidence to fit the facts in a way which supported Mrs Cody’s defence, irrespective of how illogical that narrative might be. Even on his main contention, that Mrs Cody had never seen the loan offers, his evidence was inconsistent, given his acknowledgement that he had sent at least one to her solicitor, Ms Carthy, at Mrs Cody’s request.

249. It was suggested to both Mr and Mrs Cody that they were acting in concert, which they denied. Mrs Cody’s first statement in evidence was that she was Mr Cody’s ex-wife. It appears, in fact, that they are not divorced or even legally separated. Regardless of their marital situation, it is clear that, at least in some respects, they continue to co-operate with each other. When issues first arose regarding the loans the subject of BOIMB’s proceedings, they worked together in dealing with BOIMB, Mrs Cody even seeking to negotiate on behalf of her husband.

250. In 2013, Mr Cody did not object to an order made in Mrs Cody’s favour in family law proceedings which, it seems, have gone nowhere since, which prevents BOIMB enforcing its judgment against Mr Cody’s unencumbered asset, the office building in Carlow. This, despite the fact that it was an order to which she was plainly not entitled, made pursuant to a statutory provision which is confined to the family home. Mrs Cody rejected an offer which would have enabled her to remain in the Property for five years, without any payment, because it would have required the couple to consent to a charge being placed over the office building. Mrs Cody has, therefore, repeatedly protected the office building from being subject to enforcement (notwithstanding her repeated complaints that the Bank has failed to enforce against Mr Cody but has instead pursued only her). Mrs Cody discontinued proceedings against Mr Cody despite the fact that, on any analysis, he was the chief architect of any fraud to which she claims to have been a victim.

251. The effect of Mr and Mrs Cody’s combined evidence in the BOIMB proceedings would be to achieve a similar effect in relation to their other main asset, the Property, i.e. to protect it from any enforcement. It is difficult to avoid the suspicion that the couple have for some s

time been co-operating with each other to defeat BOIMB’s efforts to recover the sums which were borrowed in 2005.

252. It must be acknowledged, however, that Mr Cody did not provide any evidence in support of Mrs Cody’s claim against the Bank.

253. Turning to the factual issues in dispute, it is convenient to address them as they arose chronologically.

254. The first relevant disputed issue is Mrs Cody’s claim that she was unaware of the 2001 and 2002 loans and the existing mortgage on the Property. This is wholly implausible. The relevant bank statements were being sent to Mrs Cody’s home address from the time that those loans were advanced. On Mrs Cody’s own evidence, Mr Cody did not live in the Property at that time. There is no basis upon which Mrs Cody could credibly say that she was unaware of the loans. She was not even supported in this assertion by Mr Cody.

255. Critically, as we will see, it is contradicted by the evidence of Ms Carthy, which I accept, to the effect that Mrs Cody told her about the existing mortgage on the Property.

256. Mrs Cody’s evidence that she was not aware of these loans and believed that the purchase and construction of the substantial Property had been entirely funded by the sale of their previous home is inherently implausible. I do not, therefore, accept that Mrs Cody was unaware of the existing borrowings at the time of the events the subject of these proceedings.

257. The next issue in time is not disputed, the valuation of the Property. This is a minor issue, but as Mrs Cody accepts that she was aware that the Property was being valued, this is more consistent with her being aware of some proposed dealing with the Property at that stage than none.

258. In or about the time the Property was being valued, Mr Byrne says that he met Mrs Cody and talked with her about the consequences of entering the transaction the subject of these proceedings. Mrs Cody says that the meeting simply didn’t happen. Mr Byrne’s evidence presented as far more convincing than Mrs Cody’s evidence of their only meeting being at a funeral. Moreover, it is difficult to see what motivation Mr Byrne, long retired, s

might have for inventing a meeting with Mrs Cody, whereas Mrs Cody’s motivation for denying a meeting which, if it happened, meant that she was fully aware of a transaction she claimed to know little about is all too obvious. It is more likely than not that the meeting happened as Mr Byrne described.

259. Mr Cody denied knowing anything about this meeting. Mr Byrne’s evidence was that “probably one of the first things he said” to Mr Cody was that he needed to meet Mrs Cody.

Any meeting would very likely have been arranged through Mr Cody. I do not accept Mr Cody’s evidence in this respect.

260. Perhaps the most critical conflict of fact in the case is between Mrs Cody and Ms Carthy. Of course, not everything is contested. Mrs Cody agrees that she met Ms Carthy for a family law consultation and that the proposed loan was discussed. From that point, however, their accounts diverge wildly. Even if Ms Carthy had not been entirely convincing in her evidence, which she was, Mrs Cody’s version of events is improbable to the point of impossibility. I have no hesitation in accepting Ms Carthy’s evidence over that of Mrs Cody where there is any conflict.

261. The first dispute relates to who raised the issue of the proposed transaction. Ms Carthy says that it was Mrs Cody, Mrs Cody says the reverse. Mrs Cody’s suggestion was that it was Mr Cody who had provided Ms Carthy with the relevant information. Ms Carthy’s evidence was that she had had no prior dealings with Mr Cody, who she did not know. Mr Cody said the same. Although I consider that some of his evidence was not honest, it is difficult to see why he would deny even knowing Ms Carthy if, in fact, he did.

262. The agreed evidence was that Mrs Cody was attending Ms Carthy for a family law consultation. It would, therefore, have been improper for Ms Carthy to be discussing matters with Mr Cody before even meeting Mrs Cody. I am sure that she did not. Importantly, therefore, this means that all of the information which Ms Carthy had about the proposed transaction at the time that she created her contemporaneous attendance document must have come from Mrs Cody.

263. This means that Mrs Cody, contrary to her evidence, was aware of the existing mortgage on the Property and of the proposed structure of the transaction the subject of these proceedings. She was clearly and repeatedly advised against the transaction, advice s

she elected to ignore. This, together with Mr Byrne’s evidence, also entirely undermines Mr Cody’s evidence that the transaction was a “solo run” by him and that Mrs Cody knew nothing about it.

264. Ms Carthy subsequently obtained copies of the loan offers and financial documentation from Mr Cody (on Ms Carthy’s evidence, her only interaction with Mr Cody) and forwarded that information to Mrs Cody. This is supported by the contemporaneous documents. Mrs Cody initially denied any further communication from Ms Carthy, saying that she had “run for the hills” after their consultation. She subsequently accepted that there may have been subsequent contact by telephone, but despite her “pin sharp” memory, couldn’t remember the details of any call. Similarly, she initially denied receiving correspondence from Ms Carthy but then said that she thought that she may have received letters but thought that they weren’t important. It is very clear that Ms Carthy did send the loan offers to Mrs Cody.

265. There is some ambiguity from the correspondence about whether both loan offers were sent. However, Ms Carthy’s evidence was clear that both were sent. In circumstances where she had been told that the transaction was for a total sum of €650,000, it is implausible that she only received and forwarded one offer letter, as Mr Cody suggested, without raising any query, especially given her scepticism regarding the transaction. It is far more probable that she received and forwarded both letters and that Mr Cody’s suggestion that Mrs Cody only knew about one loan is an example of Mr Cody trying to make the facts fit a narrative which will protect the Property from enforcement.

266. A further important point of conflict relates to the provision of the letter confirming that Mrs Cody had received legal advice. Ms Carthy explained the circumstances in which Mrs Cody requested it. and that she provided it to her and only to her. Mrs Cody denies requesting it, but allows for the possibility that it might have been sent to her, though, if so, she disregarded it.

267. The only circumstance in which such a letter would have been written by Ms Carthy was if it was requested by Mrs Cody. Her requesting it was entirely consistent with her previous engagements with Mrs Cody as described by Ms Carthy.

268. Mrs Cody made much of the fact that she hadn’t returned to Ms Carthy to go through the loan offers when received, claiming that the attendance note showed that was what they s

had agreed. The attendance note does not indicate that. Rather it indicates that Mrs Cody would give her instructions once she had had an opportunity to consider the mortgage documents. That is precisely what occurred, on Ms Carthy’s evidence, which I accept.

269. The alternative to accepting Ms Carthy’s evidence is to accept Mrs Cody’s theory of events. I say theory rather than evidence, because Mrs Cody provided no evidence of any connection, still less collusion, between Ms Carthy and Mr Cody or BOIMB at all, or any reason, other than that lawyers are all in it together, why Ms Carthy would go to such lengths to support Mr Cody’s fraud on Mrs Cody. It is worth, nonetheless, considering what accepting Mrs Cody’s theory would involve. First, and most obviously, it would require the court to conclude that Ms Carthy had lied, extravagantly, under oath in these proceedings.

Second, it would require the court to conclude that she had acted in a wholly unprofessional, even criminal, manner by colluding with Mr Cody and/or the Bank to enable him to obtain a loan secured on the family home of Mrs Cody – her client – without Mrs Cody’s knowledge or consent. And third, it would require the court to believe that when doing so, Ms Carthy created an entirely false record in which she clearly urged Mrs Cody not to enter the transaction, or at least obtain more information before doing so, in anticipation that she would be required at some point in the future to try and cover up the subterfuge.

270. This is patently not the case. Ms Carthy was a convincing and truthful witness in the proceedings. Far from acting unprofessionally, she advised Mrs Cody carefully and prudently. Mrs Cody no doubt regrets that she did not take that advice, but that is no justification for alleging that the advice was not given and worse. The documentary record wholly supports Ms Carthy’s evidence. The explanation for this is straightforward. It is because Ms Carthy’s evidence reflects what actually occurred, not because the record was falsified twenty years ago so that it could be deployed now to cover up a fraud.

271. Ms Carthy’s evidence substantially undermines Mrs Cody’s defence. Contrary to Mrs Cody’s evidence and submissions, she was fully aware of the loans and the proposal to remortgage the Property. There was no conspiracy involving Mr Cody, nor did he seek to remortgage the Property without her knowledge.

272. Of course, the implication of Ms Carthy’s evidence is that not only did Mrs Cody know all about the transaction, but that she also took positive steps to facilitate it, by procuring the required letter confirming that she had received independent legal advice. Not only did she s

procure the letter, in circumstances where the letter was provided only to her, she must in turn have provided it to Mr Cody or to Justin Cody to enable the transaction to be completed.

In addition, she signed the life assurance disclaimer form, also facilitating the completion of the transaction and representing to BOIMB her agreement to the transaction.

273. I will pass over the question of whether Mrs Cody actually signed the loan offers, the solicitor’s undertaking and the mortgage, and the various arguments BOIMB makes in that regard for the present, and identify the next important piece of evidence, the fact that Mrs Cody received €200,000 from James Cody & Sons in December 2005 out of the loan funds.

274. Mrs Cody accepts that she received this money but says that it was not for her personal use because she used it, at Mr Cody’s direction, to renovate the Sea House property. The Bank criticises Mrs Cody’s failure to make discovery, as required, of her bank records, which would show how the money was used, but this may miss the bigger point. As now established, at this juncture Mrs Cody knew about the proposal to re-mortgage the Property, and that, out of the proceeds of the new loans, €200,000 would be given to her. She had taken active steps to facilitate the completion of that transaction. The cheque for €200,000 from James Cody & Sons, even though signed by Mr Cody, could only have been understood by her as the funds due to her under the transaction. If she had not, in fact, agreed to the transaction, and signed the loan offers, she would have been wholly mystified as to why she was receiving €200,000. She certainly provided no alternative explanation for it, other than that she was to use it to renovate the Sea House at Mr Cody’s direction. That does not explain at all why James Cody & Son Solicitors would be sending her a cheque for this significant sum.

275. Mr Cody suggested that Mrs Cody thought that it was a loan from the Bank not secured by a mortgage. This makes little sense. First, there was an existing mortgage. Why would Mrs Cody have believed that additional monies were being made available but now unsecured? There is nothing to suggest that Mrs Cody was then, or is now, so naïve as to believe that was likely. Second, and more importantly, Mrs Cody knew that one of the conditions for the receipt of that money by her was that a new mortgage over the Property would have to be created.

s

276. There can have been no doubt in Mrs Cody’s mind that the money she received was on foot of the loan offers on which she had received advice from Ms Carthy and which required her to re-mortgage the Property. Had she not consented to that proposal, or objected to it, one might have expected her to be astonished at this sudden windfall and queried it with her husband and, more importantly, BOIMB. Instead, on her account, she took the funds and invested them in the renovation of the Sea House, her “project”. Her silence at that time is only consistent with her having agreed the loans.

277. Indeed, her silence for the next ten years is only consistent with her having agreed the loans. Mrs Cody also claims that a loan and mortgage were created over the Sea House in 2008 without her knowledge, yet agreed to its sale to discharge that loan without apparent complaint. Mr McCarthy’s evidence show that Mrs Cody’s evidence that she knew nothing about this loan is, again, not credible.

278. She negotiated with BOIMB for several years over the debt the subject of these proceedings without ever raising the massive fraud which she says is at the heart of these proceedings. She suggests that it was only when she obtained documents following data access requests that she discovered what had happened. It may be that she only discovered internal Bank documents referring to a Mr Heather McMillan, with the incorrect date of birth and other incorrect information at that time, or the supposed existence of a huge number of bank accounts, but on her case, she always knew that she had not agreed two loans secured by a new mortgage against the Property in 2005. She would not have needed any documents to know that that was so, if true. She failed to raise it in any way and instead negotiated for several years on the basis that she was liable as a joint mortgagor in respect of the debt to BOIMB. Just as in Promontoria (Oyster) DAC v Burke, one can only be sceptical of her claims now that she never agreed the loans or mortgage having negotiated at length on the basis that she had.

279. Returning then to the question of whether Mrs Cody signed the loan offer letters, the solicitor’s undertakings and/or the mortgage. First, it must be noted that the apparent evidence that her signing of the mortgage was witnessed by a third party has proven to be without foundation. Ms Butler, despite purporting to witness the signature on the mortgage, has confirmed that she did not. BOIMB appears to have accepted that evidence. Similarly,

s

Justin Cody has confirmed that he did not witness her signature on the clients’ authorisations to give solicitor’s undertakings to BOIMB.

280. In addition, both Mr and Mrs Cody have sworn that she didn’t sign the documents. That evidence ought not readily be dismissed. Notwithstanding that evidence, however, I have concluded that, on the balance of probabilities, Mrs Cody did sign the loan offers and solicitor’s undertakings and did sign the mortgage.

281. I have already discussed my concerns with the evidence of Mr Cody which was patently not entirely truthful. Notably, even Mrs Cody did not consider that Mr Cody was a witness to be trusted. When examining Imelda Leahy, Mrs Cody asked her about Mr Cody’s private life. I intervened and asked why these questions hadn’t been put to Mr Cody. She replied (Day 8, p. 100), “[b]ecause he was -- I wouldn't have trusted that he would tell the true picture”.

282. Mr Cody’s assertion that the entire transaction was a “solo run” doesn’t stand up to any scrutiny. He had no explanation for the source of, or reason for, the Reidy Stafford letter regarding legal advice, or why he sent loan documentation to Ms Carthy without Mrs Cody’s involvement. Perhaps more straightforwardly, if the transaction was a solo run, why would €200,000 have been directed to Mrs Cody at all? Mr Cody’s evidence about this transaction was wholly implausible and I can, therefore, place no weight on his evidence that Mrs Cody did not sign the relevant documents.

283. In respect of Mrs Cody, if I had accepted her evidence on other issues, it might well be the case that I would have been prepared to accept her evidence on this question. In this regard, it might have been regarded as significant that Mrs Cody’s claim since the outset of these proceedings that no one had witnessed her signatures on the relevant documents has been ‘vindicated’ in the evidence. However, this has only the appearance of being significant. Whether Mrs Cody signed the documents or not, she has always known that her signatures were not witnessed by Justin Cody or Siobhán Butler.

284. Mrs Cody’s evidence has proved to be unreliable in relation to a number of key issues in the proceedings. I don’t accept her evidence that she was unaware of the existing mortgage on the Property, that she didn’t meet Mr Byrne, that she wasn’t the person who s

provided all the relevant information to Ms Carthy about the transaction at their meeting on

31 August 2005, that she didn’t engage with Ms Carthy subsequently in relation to the transaction, that she didn’t request a letter from Ms Carthy confirming that she had received legal advice, or that she didn’t pass that letter to Mr Cody or Justin Cody. Having rejected her evidence on so many issues relevant to the completion of the transaction, her evidence that she didn’t sign the relevant documents is seriously undermined.

285. The rejection of Mrs Cody’s evidence on the foregoing issues has two consequences.

Firstly, it renders unreliable, or at least open to serious question, all the evidence given by her.

286. But the second consequence is perhaps more telling. It is clear from the evidence that Mrs Cody knew precisely what was proposed and had been provided with the relevant documents. She may not have had those documents in front of her when discussing the matter with Mr Byrne or Ms Carthy, but she can have been left in no doubt as to the consequences of entering the agreement: she was expressly advised not to do so by Ms Carthy because of those consequences. However, she then took positive steps to ensure that the transaction could be completed, obtaining the letter confirming the receipt of legal advice and providing it to Mr Cody, without which there would have been no transaction.

That was done on the same day that the loan offers were purportedly signed. Why, if one accepts that she sought and obtained the legal advice letter on 24 October 2005 in order to facilitate the agreement, would one suppose that she would not have signed the loan offer letters that same day for the same purpose? It is far more probable that she did sign the letters that day. Although the client retainer authorising Justin Cody to give undertakings on her behalf is dated some days later, where all the evidence points to Mrs Cody having agreed to and facilitated the transaction, contrary to her version of events, there is no reason to suppose that she would not also have signed the solicitor’s undertakings.

287. That this is more likely the case than not is reinforced by Mrs Cody’s receipt, without demur, of €200,000, as provided for in the transaction, as she well knew. This is wholly inconsistent with Mrs Cody not having taken the steps necessary to complete the transaction, including signing the loan offers. Mrs Cody offered no plausible explanation for the receipt of the €200,000 other than on foot of the loan offer. The absence of any query, still less objection, by Mrs Cody about the source of the funds at that time is incompatible with Mrs s

Cody not having agreed to the transaction and strongly suggests that she knew that she had taken the necessary steps to facilitate release of the funds, i.e. signed the loan offers. The fact that the money may have been used for a different purpose than that discussed in the meeting with Ms Carthy or in the loan documentation only suggests that BOIMB was misled as to the purpose of the loan, not that Mrs Cody was misled as to the source of the funds.

288. The mortgage was apparently signed in January 2007, in other words after the receipt of the €200,000. Having not questioned the receipt of the monies on foot of the transaction, because she well knew that she had agreed to that transaction, it is more probable than not that Mrs Cody took the final step necessary to complete the transaction, signing the mortgage, having already authorised Justin Cody to give an undertaking to complete that process. Mrs Cody did not identify anything occurring between October 2005, when she agreed to the transaction and enabled it to complete, and January 2007, when the mortgage was signed, which might have impacted her executing the mortgage, the only relevant events being the receipt by her of €200,000 and, of course, the discharge of the existing mortgage.

289. It may seem strange that there has been no consideration in this assessment of the actual signatures on the documents in question. However, neither side called any expert evidence regarding the relevant signatures. Both parties referred in evidence to the signatures. Mrs Cody referred to them being “completely different”, though it was not entirely clear which two signatures she was saying were completely different from others. Mr Downes expressed the view that the signatures on the relevant documents seemed to him to be the same as those on the many letters which Mrs Cody sent to BOIMB.

290. I don’t think I can place any real weight on this evidence, or my own inexpert view of the signatures. Had there been a marked discrepancy between Mrs Cody’s signatures on the relevant documents and her signatures on the letters, or other signatures purporting to be hers, then that might well have aroused the court’s suspicion. Similarly, if the signatures had appeared similar to those of Mr Cody, who it seems certain signed the documents, that might also have lent weight to Mrs Cody’s claims of fraud. Neither is the case. None of the signatures by Mrs Cody which she denies in these proceedings are so dissimilar from the signatures in her letters written during the course of these proceedings that might cause one to suspect, absent her evidence, that they had not been signed by the same person. Nor do

s

the signatures of Mr Cody and the purported signatures of Mrs Cody bear any obvious similarity.

291. A separate question arises whether I should draw any inferences regarding the failure by either party to call expert evidence, in particular, whether I should draw any inference against BOIMB regarding its failure to call expert evidence to prove the signatures, notwithstanding that, absent the estoppel plea, it is an important proof to enable it to enforce its charge.

292. On balance, an adverse inference would not be justified. Mrs Cody raised the possibility of calling expert evidence and, it appears, commissioned a report from an expert some time ago. The correspondence shows that BOIMB made repeated efforts to arrange a meeting between its expert and Mrs Cody’s prior to trial, until the week before trial when Mrs Cody confirmed that she would not be calling an expert witness. When Mrs Cody indicated during the trial that she might call an expert witness after all, BOIMB did not object, and indicated that they would still seek to facilitate a meeting between experts so that they could assess the handwriting evidence on an agreed basis. In the event, Mrs Cody did not call her expert.

Although it was at all times open to BOIMB to call a witness irrespective of whether Mrs Cody intended to, in the absence of agreed samples of writing or signatures to compare, any such evidence might have been of limited value. In all the circumstances, an adverse inference would not be justified.

293. As to whether to draw an adverse inference from Mrs Cody’s failure to call a witness, this would also not be justified. She suggested that expense was a barrier, which is not implausible. In BOIMB’s proceedings, Mrs Cody did not have any onus of proof. True, proving that that signatures were forged would have been helpful evidence in her own claim, but that is not a basis to draw an adverse inference against her in BOIMB’s proceedings.

294. In light of my conclusion that, on the balance of probabilities, Mrs Cody not only agreed to the transaction, she also signed the relevant documents, and in particular the mortgage, it is not strictly necessary for me to consider BOIMB’s alternative arguments. I will do so briefly for completeness.

295. The first argument, based on AIB v Sloan, is that Mrs Cody agreed the transaction, irrespective of whether she signed the loan offers or mortgage. I have little doubt that that s

is correct for all the reasons stated above. Accordingly, she is bound by the loan agreements.

However BOIMB accepts that she would not be bound by the mortgage if not signed by her by reason of the Statute of Frauds.

296. It, therefore, relies on the estoppel argument in its amended plea in order to prevent her denying that she signed, in particular, the mortgage. Before dealing with that argument, I am bound to say that there is a more straightforward basis for concluding that Mrs Cody is bound by the mortgage. In light of the conclusions above, that Mrs Cody was a full participant in the transaction, by far the most likely alternative to Mrs Cody having signed the relevant documents herself is that she knew that they were being signed, presumably by Mr Cody, in her name. If Mrs Cody did not sign her own name, she knew that Mr Cody was signing it on her behalf and she either agreed to him so doing, or acquiesced in him so doing.

If that is so, it is very difficult to see how ‘her’ signature on the document would not be regarded as sufficient to satisfy the Statute of Frauds (see, in this regard, Guardian Builders Ltd v Kelly [1981] ILRM 127).

297. Having enabled BOIMB to deliver amended pleadings and afforded Mrs Cody a further opportunity to identify why the amendment should not be allowed, she has not set out any new basis for disallowing it. Having regard to the principles in Stafford v Rice, I will, therefore, permit the amendment of the pleadings in both of BOIMB’s proceedings, which enables the real questions in controversy between the parties to be addressed.

298. BOIMB’s estoppel argument is more nuanced than the conclusion above that Mrs Cody’s signature on the documents satisfies the Statute of Frauds because the only reasonable inference from the evidence is that Mrs Cody must have permitted Mr Cody to sign her name if she did not, as she claims, sign it herself. BOIMB’s argument doesn’t necessitate Mrs Cody having agreed the execution of the transaction, merely that she represented to BOIMB that she had done so. Certainly, her actions in procuring the letter from Reidy Stafford, signing the life assurance disclaimer form in the presence of Mr Byrne and then accepting the funds could only have been understood by BOIMB as Mrs Cody representing that she had agreed to the transaction, particularly so in circumstances where Mr Byrne had met with Mrs Cody earlier to discuss the very transaction. It would be a clear injustice to permit Mrs Cody, having made those representations, to seek to avoid liability

s

under the loan agreements or the mortgage due to any doubt about whether Mrs Cody had signed those agreements herself.

299. I queried with counsel for BOIMB whether a conclusion that Mrs Cody was, in effect, precluded from denying the agreements by operation of an estoppel involved BOIMB deploying estoppel as a sword rather than a shield. Counsel argued that this was an evidential estoppel rather than estoppel as a cause of action – BOIMB’s causes of action and basis for them remaining claims for possession and judgment based on its contract with Mrs Cody.

Having regard to the decision in Courtney v McCarthy, I am satisfied that this is an appropriate distinction and it is appropriate to conclude that Mrs Cody is estopped from denying that she executed the agreements in light of her representations that she had agreed the transaction. Of course, in circumstances where the estoppel is, as described by BOIMB, an evidential estoppel, it was, perhaps, not strictly necessary for BOIMB to seek to amend their pleadings at all.

300. In light of the foregoing conclusions, subject to any of the claims in Mrs Cody’s proceedings providing a defence to BOIMB’s proceedings, BOIMB is entitled to an order for possession and judgment against Mrs Cody.

301. For completeness, I will address BOIMB’s claim in the alternative that, even if there was no agreement by Mrs Cody to the loans the subject of these proceedings, Mrs Cody is indebted to it for monies had and received, in other words a claim for unjust enrichment.

302. I am satisfied that prima facie the criteria for an unjust enrichment claim identified in BATU have been satisfied here. Mrs Cody undoubtedly received the benefit of the funds to discharge the existing mortgage and the cheque for €200,000 paid to her. Those funds came from BOIMB. Nothing identified in the matters addressed above gives rise to a defence to BOIMB’s claims for unjust enrichment. Therefore, subject to anything in Mrs Cody’s claim giving rise to a defence, BOIMB would have been entitled to an order for money had and received had I not been satisfied of Mrs Cody’s agreements to the loans.

303. I turn now to Mrs Cody’s proceedings.

s

XI Discussion – Mrs Cody’s proceedings

304. It follows from the discussion above, that I am satisfied that there was no fraud involved in creating the 2005 loans and mortgage the subject of BOIMB’s proceedings. Mrs Cody was aware of, agreed to, and facilitated the loans, in the teeth of independent legal advice not to do so. Her complaint now that the loans were given in the name of a “fictitious person”

has no substance.

305. Mrs Cody has tried to build a substantial edifice of fraud based upon typographical errors in loan offer letters which were provided to her, and in some internal bank records.

That is far too insubstantial a foundation for even a stateable case, which is, in any event defeated by my conclusion that Mrs Cody was provided with the loan offer letters containing the errors now relied on and rather than make any complaint about them, took positive steps to ensure that the loan transactions could be completed. Even if the presence of a typographical error in her name in the loan offers was a basis for disputing her liability, which it is not, her acquiescence in the subsequent transaction would defeat any basis for complaint.

306. Nor is there any evidence to support the contention that a fictitious person was created in order to create the impression that the loans were being sought by two, younger, solicitors with no children, rather than by Mr and Mrs Cody. The Bank’s evidence, from Mr Oates and Mr Downes, was that all matters would be looked at when considering a loan application. I accept the premise of Mrs Cody’s underlying proposition that, all other things being equal, a loan to two young solicitors with no dependents may be a more viable proposition than a loan to people in the position that Mr and Mrs Cody were in in 2005, but there is no evidence that BOIMB was in any way misled about the purpose of the loans or to whom they were being made. Mr Byrne met Mrs Cody to discuss the loans with her, and it is clear from his evidence and the loan offers themselves that BOIMB were well aware that the loans were being sought in the context of a separation between a married couple, and were being made to the existing mortgage holders. Still less is there any evidence that any person, whether Mr Cody or a bank official, created such a fictitious person in order to mislead.

s

307. There is no evidence of forty bank accounts having been created in Mrs Cody’s name.

Mr Oates and Mr Downes described a detailed discovery exercise and an attempt to identify all the accounts claimed by Mrs Cody and identified thirteen accounts, most of which were closed. This is consistent with Ms Sinnott’s evidence. In the context of the property transactions which were the focus of these proceedings - the original loans for the Property, the re-mortgage loans in 2005, and the loan for the Sea House, there is no difficulty in understanding the number of accounts held by Mrs Cody, with Mr Cody. Evidence was also given of property transactions pre-dating those the focus of these proceedings, entirely consistent with the number of accounts. Mrs Cody did not identify any account which I was satisfied had been opened in her name without her knowledge and, in any event, accepted that other than in relation to the Property and the Sea House, which I have dealt with above, there was never any demand made of her in relation to an account which was created without her knowledge.

308. I have already concluded above that there was no collusion between the Bank, Mr Cody, Justin Cody or any other party to perpetrate a fraud on Mrs Cody. It may be that Mr Cody deceived Mrs Cody in some respects as he suggested in his evidence, but I do not accept that she did not know about the loans the subject of these proceedings. Mrs Cody has, of course, discontinued her proceedings against Mr Cody.

309. I accept the Bank’s submission that there is no tort of reckless lending and, therefore no cause of action arises (see, for example, ICS Building Society v Grant [2010] IEHC 17).

I should say, however, that there is, in any event, no evidence of reckless lending by the Bank in this case. The loans the subject of these proceedings were, on the basis of the valuation of the Property in 2005, not obviously imprudent. It was a condition of the loan offers that there be a valuation on the Property showing a value of not less than €1 million, which there was. Mr Cody was, at the time, the managing partner in an apparently successful firm of solicitors. No evidence, expert or otherwise, was called by Mrs Cody to support her contention that the lending was reckless, whether on its own or in the context of Mr Cody’s recent purchase, at the start of 2005, of another residential property in Carlow. In the premises, I reject any claim by Mrs Cody that she is entitled to a remedy by reason of the Bank’s allegedly reckless lending.

s

310. Many of the questions Mrs Cody asked of the Bank witnesses in the case regarded its alleged breach of duty towards her. Her submissions contain a variety of alleged breaches of duty, including reckless lending and lending as security on the Property without her knowledge, and creation of accounts without her knowledge, claims which I have already rejected.

311. Insofar as she advances claims that have not already been dealt with, those appear to encompass arguments that the Bank, in particular BOIMB, did not take sufficient care to ensure that she was aware of the transaction the subject of these proceedings, or to explain the terms of the loans to her. I do not think that this is a valid criticism.

312. Mrs Cody clearly benefitted from the loans the subject of these. From the loan proceeds, her existing mortgage would be discharged and she would receive €200,000. Of course, she would also be jointly and severally liable for monies from which she would not directly benefit, the monies to be paid to Mr Cody’s practice account (as would he be, for the €200,000 to be paid to her). In those circumstances, BOIMB made particular efforts to ensure that she understood and was agreeable to the loans. Mr Byrne insisted that he meet and discuss the loans with her. I accept his evidence in this respect. In addition, it required confirmation that Mrs Cody had been independently legally advised, with which it was furnished. I accept that the loan offers were not available when she met with Mr Byrne, or first met with Ms Carthy, but that did not prevent them from advising her of the consequences of the entering the transaction. Moreover, Mrs Cody engaged with Ms Carthy after receipt of the loan offer letters, when her advice to her remained the same.

313. Even if Mrs Cody’s complaints about the adequacy of the advice were well-founded, and I have concluded that they were not, it is clear that BOIMB were entitled to rely on the letter confirming that she had received legal advice (see, for example, Everyday Finance DAC v Flood [2025] IECA 8), especially where Mr Byrne had already met Mrs Cody to discuss the loans. I can identify no breach of duty by the Bank such as to give rise to a cause of action on Mrs Cody’s part, or, for the avoidance of doubt, to vitiate the transaction the subject of BOIMB’s proceedings.

314. The other aspect of Mrs Cody’s claims relates to the Bank’s alleged treatment of her in subjecting her to this litigation and in the course of the litigation.

s

315. It is true that the proceedings, and in particular BOIMB’s possession proceedings have had an extended history, including contested hearings in the Circuit Court, the High Court and the Supreme Court. I accept Mrs Cody’s evidence that this has been very difficult for her. The fact that she has, other than in the Supreme Court, been a lay litigant must have been very challenging.

316. The Supreme Court, having allowed BOIMB’s appeal, remitted the matter to this court for hearing on the basis that it accepted the High Court’s conclusion that, on the basis of the affidavits exchanged, she had made out a credible case that she had a stateable defence to these proceedings. Of course, following that plenary hearing and the testing of the evidence, that defence has failed and many of the matters to which Mrs Cody had averred have been rejected by me. In those circumstances, it can be seen that although Mrs Cody was, of course, entitled to defend the proceedings, as is any litigant, her own actions have clearly contributed significantly to their protracted nature.

317. There are two aspects to Mrs Cody’s complaint about the treatment of her by the Bank during these proceedings. The first is that the Bank has pursued her, while at the same time protecting Mr Cody. This complaint is, I’m afraid, entirely illogical.

318. First, BOIMB has obtained an order for possession against Mr Cody in the possession proceedings and judgment against him in the judgment proceedings. The order for possession can not be enforced because of Mrs Cody’s defence of these proceedings.

319. The only evidence of another asset against which the judgment could be enforced against Mr Cody is his ownership of the office building in Carlow. However, Mrs Cody has obtained a caution preventing BOIMB from registering a judgment mortgage against that property. In addition, when BOIMB indicated that she and her daughters could remain within the Property for five years without any payment, described by Mr Downes as an “unprecedented” offer, subject to a charge being granted over the office property, Mrs Cody refused the offer.

320. In light of Mrs Cody’s complaints in the proceeding regarding the Bank’s failure to pursue Mr Cody, I pointed out to her that it was the Bank’s case that it was prevented from so doing by the caution registered against the office property. The following exchange took place (Day 9, pp. 57 – 58):

s

MR. JUSTICE MULCAHY: So you are the barrier to ...(interjection)

MS. CODY: So they are saying now, but I didn't realise that at the time.

MR. JUSTICE MULCAHY: Well, have you indicated to the Bank that you -- will you lift that order?

MS. CODY: But sure, they have never asked me. But can I just say, because I went into Felton McKnight to get a legal separation in 2013.

MR. JUSTICE MULCAHY: Mrs. Cody, that doesn't answer my question.

MRS. CODY: Well, I am not worried about that at all, I am not worried about the office, they can do what they like with the office, I want my family home. So if you want an order lifted, I don't mind lifting an order, if you think it is a fair conclusion. I don't mind. I never asked for it to stay...(interjection)

MR. JUSTICE MULCAHY: That is not something I can do in these proceedings.

It may be something which can be discussed or negotiated between yourself and the Bank.

321. In light of that exchange, the Bank’s solicitors wrote to Mrs Cody on 23 April 2025 asking whether she would now consent to vacating the caution. It recommended that she obtain legal advice on the matter. The letter stated that it would be brought to the attention of the court should she refuse to do as represented in her evidence.

322. Mrs Cody replied by letter the same date, describing the Bank’s letter as a “threatening letter” and as an interference “with the course of justice” and did not agree to vacating the caution. The Bank’s letter was neither of those things, but rather illustrates that Mrs Cody, unfortunately, views this litigation through a prism which does not reflect the underlying reality. She cannot complain about the Bank’s failure to pursue Mr Cody when it is her actions which are prevented it from so doing.

323. Finally, on this, Mrs Cody’s justification for why the Bank is pursuing her and not Mr Cody is also illogical. She claims it is because of his status as a solicitor. But the uncontested evidence is that Mr Cody has not worked as a solicitor for many years, and left James Cody & Sons in 2011. Even if there were any substance to a claim that the Bank would seek to recover against one spouse only in respect of joint liabilities because the other was a successful solicitor, that simply does not arise in this case.

s

324. The other aspect of Mrs Cody’s claims about the conduct of the proceedings is that she has, in effect, been bullied and harassed by the Bank and its representatives. Although Mrs Cody did not identify any cause of action to which this alleged conduct might give rise, it occupied a significant amount of evidence. Given the importance of appropriate conduct of litigation, by all parties, and having regard to the serious allegations made, I propose therefore to deal briefly with these matters.

325. Before doing so, I must make the following observation. Throughout the course of these proceedings, and in correspondence over the last number of years, Mrs Cody has made frequent complaints about the conduct, not just of the Bank, but also of its legal representatives, in particular Mr Moriarty. During the hearing she made frequent personalised attacks on all of the legal representatives involved. Although some latitude can be afforded to lay litigants in the conduct of litigation, particularly a challenging plenary hearing, all litigants are obliged to conduct themselves appropriately and to take steps to ensure that they understand the process in which they are involved. Legal representatives act on behalf of their clients and on their clients’ instructions. It is not, therefore, acceptable to blame legal representatives for giving effect to their instructions, still less to attack them personally for so doing. Unfortunately, Mrs Cody did so repeatedly, despite the court’s many interventions. Her response to the Bank’s letter referred to above regarding the caution was simply the latest example of such unwarranted criticism.

326. In circumstances where I have concluded that BOIMB is entitled to the orders sought in the possession and judgment proceedings, it was of course entitled to bring and maintain those proceedings. There can be no justifiable criticism of it for so doing. While not a matter on which this court needs to decide, it is clear that extensive steps were taken to avoid the necessity of litigation, and I do not disagree with Mr Downes’ description of the offer that Mrs Cody be permitted to remain in the Property for five years without payment as “unprecedented”.

327. Mrs Cody complains about several events during the course of these proceedings. Two in particular are worth highlighting, both dealt with during the course of Mr Moriarty’s evidence.

s

328. The first relates to a summons server attending at Mrs Cody’s property on the very day she had written to the Bank’s solicitors notifying them that she required medical treatment for a serious condition and asking for a pause on the proceedings. I have no doubt that the arrival of a summons server that very evening must have been particularly upsetting for Mrs Cody. However, her interpretation of this, and other matters, as a deliberate attempt by the Bank or its representatives to take advantage of her is simply unjustified. Mr Moriarty explained in evidence the unfortunate timing of his instruction to the summons server and his receipt of Mrs Cody’s letter. Moreover, it is apparent that the Bank, in fact, paused all proceedings for a significant period of time thereafter. Although I can understand her initial grievance about these events, I cannot accept that Mrs Cody is justified is continuing to characterise this unfortunate event in the way that she did, or to see it as part of a wider campaign by the Bank against her.

329. The second event worth highlighting relates to the service of proceedings on Mrs Cody’s two adult daughters. As explained above, BOIMB caused the possession proceedings to be served on Mrs Cody’s daughters who, it is agreed, both live in the Property and have special needs. The Bank explained in correspondence to Mrs Cody the requirement so to do, although perhaps unfortunately never appears to have cited the particular Rule of the Superior Courts, Order 9, rule 9, which requires service on all persons occupying a property in possession proceedings. In any event, the Bank also clearly made every effort to find an alternative to personal service on Mrs Cody’s daughters, and sought Mrs Cody’s cooperation in this regard, which was not forthcoming. It obtained an order for substituted service from the High Court (Meenan J) allowing for service by hand delivered post rather than by personal service on them. Mrs Cody, nonetheless, criticised the Bank, Mr Moriarty and counsel throughout the hearing for having served her vulnerable daughters.

330. In circumstances where BOIMB was required by the Rules to serve the proceedings on Mrs Cody’s daughters, and made efforts to do so in the least impactful way possible, by seeking substituted service, there is no basis for Mrs Cody’s criticism of the Bank, or its representatives.

331. Mrs Cody’s other complaints, for instance that her appeal was struck out by BOIMB when she didn’t attend the call over, seem to be without foundation – in that case, the appeal was struck out when no one appeared at a call over and was reinstated without any s

opposition from BOIMB – and in any event, do not give rise to a cause of action or a defence to BOIMB’s proceedings.

332. I will accordingly dismiss Mrs Cody’s claim in its entirety.

XII Conclusion

333. I am satisfied that BOIMB lent Mr and Mrs Cody the monies the subject of these proceedings on foot of the loan offers described above. That lending was secured by way of a mortgage over the Property, which has been registered in favour of BOIMB. There has been default on those loans, and the entitlement to possession has arisen under the mortgage.

334. At the heart of Mrs Cody’s defence of BOIMB’s proceedings is her claim that she was unaware of the loans and mortgage the subject of these proceedings and that she did not sign the relevant documents. The evidence clearly establishes that Mrs Cody was fully aware of the transaction on which BOIMB relies, facilitated it and agreed to it.

335. In all the circumstances, I am satisfied on the balance of probabilities that Mrs Cody, having agreed the transaction, signed the relevant documents giving effect to that transaction, on which BOIMB relies. The only credible alternative is that Mrs Cody, having agreed the transaction, knew that Mr Cody was signing the relevant documents in her name and agreed to, or acquiesced in, him so doing. In either event, Mrs Cody is bound by her agreement and BOIMB is entitled to the orders for possession and judgment it seeks.

336. By her conduct, Mrs Cody represented to BOIMB that she had agreed to the transaction, by taking positive steps to facilitate it and accepting a €200,000 payment from the loan funds. She is, accordingly, and irrespective of my conclusions on whether she signed the relevant documents, estopped from denying that she did so.

337. In the judgment proceedings, even if I had not been satisfied that Mrs Cody had agreed the loans, she would be liable to BOIMB for money had and received.

s

338. Nothing else raised by Mrs Cody in defence to BOIMB’s proceedings or in her own proceedings gives rise to a defence to BOIMB’s claim for possession. I will, therefore, make the order for possession sought. Although BOIMB has been significantly delayed in securing this order by Mrs Cody’s unsuccessful defence, I am acutely conscious that her vulnerable adult daughters remain in the Property. I will therefore hear the parties regarding a stay on the order for possession.

339. I will also enter judgment against Mrs Cody. I will hear the parties regarding the precise sum in which judgment should be entered and in relation to any stay on that judgment.

340. Finally, Mrs Cody’s proceedings do not give rise to any entitlement to a remedy and will be dismissed.

341. I will list these proceedings on 31 July 2025 at 10.30 am for the purpose of making final orders.