ACC Loan management v Dooley
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] IEHC 211 |
| Docket Number | [2010 No. 5004 S] |
| Court | High Court |
| Date | 30 March 2017 |
[2017] IEHC 211
THE HIGH COURT
Baker J.
[2010 No. 5004 S]
Banking & Finance – Summary summons – Discovery of documents – Relevance and Necessity – Fishing expedition
Facts: The defendant sought an order for the discovery of certain categories of documents against the plaintiff. The plaintiff had filed the proceedings seeking summary judgment of certain amount in relation to the loan facilities advanced to the defendant in his personal capacity. The defendant sought discovery of the documents relating to the appointment of receiver by the plaintiff, correspondence between the plaintiff and the construction experts, documents relating to the sale of residential units in the development and other documents relating to the agreement made to advance money.
Ms. Justice Baker granted the discovery of limited categories of documents while refusing the other categories. The Court held that the discovery of documents that were relevant to the fair disposal of the issue between the parties should be made. The Court found that the defendant had indulged in a fishing expedition by seeking the discovery of certain documents for the time period, which had no relevance to the resolution of dispute in question. The Court denied disclosure of the documents relating to the defendant's application for funding as it would be oppressive and lead to the revelation of unknown person's private information.
The plaintiff brought proceedings by summary summons seeking judgment in the sum of almost €18 million in respect of loan facilities afforded to the defendant in his personal capacity, and to a development company of which he was a director and whose loans he is claimed to have guaranteed.
The proceedings were agreed to be remitted to plenary hearing and a statement of claim was delivered on 7th November, 2011. The defendant then served a defence and counterclaim on 18th June, 2012 in which he counterclaimed for damages on the general grounds that the plaintiff (the ACC Bank, hereinafter ‘the Bank’) and the defendant were engaged in a joint venture in regard to the development project for which the monies were borrowed. The defendant also counterclaims for damages for negligence, breach of contract and breach of duty arising from the appointment by the Bank of a receiver over the development, and the ongoing involvement of that receiver and an independent quantity surveyor appointed by the Bank to monitor the completion of the development, and further draw down of funds. The plea is also made that an architect, an engineering firm, and other construction professionals engaged in the course of the completion of the project were appointed on behalf of, and acted as agents for, the Bank and in respect of whose alleged negligence the defendant raises a counterclaim.
This judgment is given in an application for discovery brought by the defendant against the plaintiff in respect of forty-six categories of documents as set out in a letter of 16th April, 2014.
It is fair to say that the motion has had a somewhat unusual history. The Bank through its solicitors made an open offer that discovery would be furnished in respect of certain categories of documents, and when the application for discovery came on before Kearns P. on 20th November, 2014 he directed the plaintiff to make formal discovery of all the documents thereby offered to be discovered, and adjourned further consideration of the application for discovery to 19th February, 2015.
The motion then was adjourned from time to time and ultimately came on for hearing before me in Cork on 20th March, 2017. At that hearing counsel for the defendant sought discovery of all categories of documents including those in respect of which an order had already been made by Kearns P. and where three affidavits of discovery have been sworn by or on behalf of the plaintiff in purported compliance with that order.
The categories of discovery can be broken down into a number of larger categories and the defendant seeks discovery of documents as follows:
(a) All documents of the Bank relating to the agreement made to advance money to the defendant personally and to the development company;
(b) All documents relating to the appointment of Martin Ferris as receiver on 6th March, 2009, and all documents relating to the engagement by the receiver with the professionals in regard to the completion of the development, which at the date of the appointment of the receiver was in a state not suitable for onward sale;
(c) All documents in the form of the correspondence between the Bank and the construction experts or professionals regarding the safety and planning compliance of the development;
(d) All documents relating to the completion of the development, including relevant documents of the construction professionals and experts appointed by the Bank to oversee or supervise the completion of the project;
(e) All documents regarding the sale by the receiver of the residential units in the development, all of which have been sold.
By letter of 6th November, 2015 Messrs. John P. O'Donohoe solicitors on behalf of the defendant formally withdrew his request that discovery be made in respect of twenty-seven identified categories, such withdrawal being made on a ‘without prejudice basis’ with regard to the completeness or adequacy of the discovery already made in those categories.
The defendant has now sought to pursue the request for discovery in regard to these twenty-seven categories, and the first question I must consider is whether he should be permitted to do so. Having considered the application for discovery, and the contents of the letter, I am of the view that the concession by which the solicitors for the defendant withdrew the request for discovery of the twenty-seven categories is one from which he ought not to be permitted to resile, primarily because the letter by which the request was withdrawn regarding these categories amounts to a considered decision that no necessity then existed for discovery of those documents.
Certain matters need to be noted with regard to this letter. Messrs. John P. O'Donohoe continue to act for the defendant, and while he has had a number of solicitors in the course of this litigation, he has continued to instruct that firm. The letter is ten pages long and can fairly be regarded as a focused and considered response to the motion which stood adjourned to the non jury list on Monday 9th November, 2015, three days after the letter. The letter was written a year after Kearns P. had made the order for discovery of the agreed categories, and after two affidavits of discovery, one sworn on 4th February, 2015 and the other on 10th July, 2015, had been furnished, and the purpose of the letter was to identify what documents Mr. O'Donohoe regarded as still then outstanding. Finally, the letter was clearly sent on instructions and the writer identified that his client had instructed him to agree to withdraw the request in respect of those identified categories.
In a very short letter on 30th June, 2016 the solicitors for the defendant informed the solicitors for the plaintiff that the defendant ‘has made a decision regarding your client's voluntary discovery following recent events’. The ‘recent events’ are not identified. The letter goes on to say as follows:
‘The defendant wishes to remove any doubt that nothing has been agreed until everything is agreed and it is now necessary to have all forty-six categories of discovery adjudicated on by the honourable court at the next hearing on 22nd July, 2016.’
The formal letter of 6th November, 2015 by which the request for discovery was withdrawn was not made conditional upon the making of any other agreement between the parties, and no other conditional agreement has been identified.
The concession by which the defendant withdrew his request for discovery in regard to the twenty-seven categories must influence my decision in regard to the present request that discovery be made in regard to those categories, as the considered position advanced by the solicitor for the defendant on 6th November, 2015 was that the categories of documents in respect of which the concession was made could safely be regarded as no longer relevant, or that the solicitor was satisfied, having reviewed the documents furnished, that discovery of those categories was no longer necessary.
I make no conclusion based on any argument that an estoppel might have arisen as a result of the letter of 6th November, 2015, as it is not necessary for me to do so. Nothing has been shown to have occurred since the sending of that letter which would suggest that the considered response by the solicitor for the defendant regarding discovery cannot be taken into account in determining whether discovery of these categories is to be ordered on the grounds of relevance or necessity. While the defendant himself has sworn an affidavit in the matter on 14th November, 2016 he has nowhere explained why he instructed his solicitors to withdraw the concession with regard to this twenty-seven categories of documents. Furthermore, the principal of the firm, Mr. John P. O'Donohoe, himself has sworn an affidavit on 17th November, 2016 and he does not explain the reason for the change of mind.
Taking all of those factors into account, and in the light of the propositions I will deal with later regarding the principles to be applied in considering an application for discovery, I consider that no basis has been shown on which the defendant is to be entitled to resile from the withdrawal of his request in regard to the twenty-seven categories.
Accordingly,...
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