Colgan v Irish Bank Resolution Corporation Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 20 January 2017
• Neutral Citation: [2017] IEHC 43
• Docket Number: [No. 2013/5535 P]
• Court: High Court
• Date: 20 January 2017

[2017] IEHC 43

THE HIGH COURT

O'Connor

[No. 2013/5535 P]

BETWEEN

DAVID COLGAN, MARK COLGAN, DAVIS COLGAN, PATRICK RYAN, PHILIP MONAHAN

AND

FINIAN MCDONNELL

PLAINTIFFS

AND

IRISH BANK RESOLUTION CORPORATION LIMITED (IN SPECIAL LIQUIDATION)

AND

NATIONAL ASSET MANAGEMENT AGENCY

DEFENDANTS

Banking & Finance – Liquidation – Discovery of reports – Relevancy & necessity – Fair disposal of issue

Facts: The plaintiffs had filed an application for the discovery of reports of inquiries furnished to the first named defendant about the alleged overcharging of interest in relation to certain loan facilities and the derivative contract. The first defendant objected to that discovery on the basis that the burden of proving the overcharging and loss rested on the plaintiff and the requested materials if provided by the first defendant would assist the plaintiffs in the substantiation of their claim.

Mr. Justice Tony O'Connor granted an order for the discovery of reports to the plaintiffs only from the period from which the liquidation of the first defendant had commenced. The Court held that the first defendant was not precluded from asserting any privilege in the prescribed manner. The Court observed that in order to assess whether the discovery of reports should be made, the Court should have regard to the relevancy of documents. The Court held that after passing the test of relevancy, the Court should have determined whether the disclosure was necessary for the fair disposal of the issues between the parties. The Court noted that since the first defendant was under special liquidation pursuant to an Act of Oireachtas, it was bound to identify its rights, duties and liabilities in relation to the charging of relevant interest over a number of years to the plaintiffs.

JUDGMENT of Mr. Justice Tony O'Connor delivered on Friday 20th day of January, 2017

Introduction

1 This is an application for discovery of reports of inquiries furnished to the first named defendant about alleged overcharging of interest in respect of:-

(i) facilities which the plaintiffs had with the first named defendant (successor to Anglo Irish Bank) from January, 1999 to November, 2016 when the plaintiffs discharged their indebtedness;

(ii) the derivative contract as pleaded in para. 3 of the amended Statement of Claim delivered on 27th November, 2015 and which in summary relates to a period from October, 2007 to October, 2010.

Agreed Discovery

2 The plaintiffs and each of the defendants exchanged requests for discovery and all categories are the subject of agreements to make voluntary discovery as the Court was told when the plaintiffs' motion came before me on 16th December, 2016. At that time counsel for the plaintiffs (Mr. Ryan) outlined the nature of the plaintiffs' claim. The Court having noted the somewhat historical nature of a large part of the claim suggested that the parties consider preparing something like a scott type schedule in order to identify the disputed figures in detail. Considerable time and cost for the parties and the Court could be saved by adopting something along those lines.

3 Senior counsel for the first named defendant (Mr. Fitzpatrick) reverted on 21st December to indicate that the first named defendant did not wish to proceed with that suggestion while pointing out that the plaintiffs bear the burden of proving the overcharging and loss thereby incurred by the plaintiffs. The motion was then adjourned and came on for hearing which concluded at 4.30pm yesterday evening, 19th January, 2017.

Narrowing of the category

4 During the course of the hearing yesterday I asked counsel for the plaintiffs whether there was any merit in the plaintiffs seeking anything other than the actual reports as opposed to communications about such reports. Suffice to say that counsel for the plaintiffs agreed to confine the application to the actual reports in respect of the said facilities and derivative contract and the hearing of the motion proceeded on that basis.

Adversarial System

5 It is a feature of this application that the first named defendant relies very much on the distinction between the adversarial and inquisitorial systems for the administration of justice. Counsel for the first named defendant emphasised that it had no obligation to assist the plaintiffs to establish their claims. Moreover, he submitted that the plaintiffs could not establish direct relevance of the reports to the plaintiffs' claim, although he acknowledged that there may be an indirect relevance of any report which refers to overcharging of interest to the plaintiffs if there are such reports.

6 It was further submitted that the factors to be taken into account in calculating interest will not be affected by a report published after the event and therefore there is no direct relevance.

7 Senior counsel also mentioned that the plaintiffs will get everything that...