McKillen v The National Asset Management Agency and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 11 December 2023
• Neutral Citation: [2023] IEHC 711
• Court: High Court
• Docket Number: [Record No. 2015/8471P]

Between:

Patrick McKillen

Plaintiff

and

The National Asset Management Agency, Paul Hennigan, Enda Farrell, John Moran and The Minister for Finance

Defendants

[2023] IEHC 711

[Record No. 2015/8471P]

THE HIGH COURT

Discovery – Misfeasance of public office – Abuse of process – Plaintiff seeking an order requiring the fourth and fifth defendants to make further and better discovery – Whether the plaintiff had shown that there were documents which the fourth and fifth defendants were required to discover but had not discovered

Facts: The plaintiff, Mr McKillen, claimed that alleged contact between the fourth and fifth defendants (the defendants), Mr Moran and the Minister for Finance, and a representative of the Barclay Interests amounted to misfeasance of public office and/or an abuse of process and/or acting with indifference in relation to the plaintiff’s commercial interests. An order of the High Court (Allen J) dated 11 September 2020, made with the consent of the parties, directed the defendants to make discovery in the terms agreed by the parties and set out in the court order. The plaintiff, by notice of motion dated 3 May 2022, sought an order pursuant to O. 31, r. 12(11) and O. 31, r. 12(12) of the Rules of the Superior Courts 1986 (RSC) varying the terms of the consent order so as to require the defendants to make discovery on oath of further categories of documentation set out at Schedule 2 to the notice of motion. At para. 2 of the notice of motion, the plaintiff sought an order pursuant to the inherent jurisdiction of the court and/or O. 31 RSC requiring the defendants to make further and better discovery on oath of all documents in their possession or procurement and which were in the ambit of the categories, to “the sub-categories” set out at Schedule 1 to the notice of motion. At paragraph 4 of the notice of motion, the plaintiff sought an order pursuant to the inherent jurisdiction of the court directing the defendants to swear a further affidavit which addresses the issues set out at Schedule 3 which, it was contended, required further detail and clarification.

Held by Bradley J that he would refuse the relief sought in the notice of motion which sought an order pursuant to O. 31, r. 12(11) RSC varying the terms of the order dated 11 September 2020 such as to require the defendants to make discovery on oath of the further categories of documentation set out at Schedule 2 of the notice of motion because the plaintiff had failed to comply with the mandatory requirements of O. 31, r. 12(11) and O. 31, r. 12(12) RSC. Having had regard to the terms of categories (i) and (ii) in the order dated 11th September 2020, Bradley J was satisfied that the plaintiff had not shown that there were documents which the defendants were required to discover but had not discovered; the plaintiff agreed and consented to the wording of both category (i) and category (ii) in the order dated 11 September 2020. Bradley J held that the affidavits and correspondence he reviewed dealing with the application for further and better discovery established that the discovery process which arose consequent upon the consent order dated 11 September 2020 was correctly engaged in by the defendants and no further explanation was required; in addition, the second replying affidavit of Mr Hynds (a Specialist in the Shareholding and Financial Advisory Division within the Department of Finance) affirmed on the 12 October 2022 addressed the criticisms of the discovery process in the affidavit of Mr Eames Solicitor sworn on 13 July 2022. Therefore, Bradley J refused the relief in the notice of motion which sought an order pursuant to the inherent jurisdiction of the court directing the defendants to swear a further affidavit to address the nine issues set out at Schedule 3 of the motion.

Bradley J refused the plaintiff’s application set out in the notice of motion dated 3 May 2022.

Application refused.

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 11 ^th day of December 2023

INDEX

INTRODUCTION	3
Preliminary	3
Motion dated 3 rd May 2022: the application before the court	4
PLEADINGS, MOTIONS & AFFIDAVITS	5
Chronology	5
ORDER OF DISCOVERY 11 TH SEPTEMBER 2020	5
ADDITIONAL DISCOVERY	6
O.31, r.12 RSC 1986	6
Mandatory provisions	7
Non-compliance	8
FURTHER & BETTER DISCOVERY	9
Application of Legal Principles	9
THE CONSENT ORDER & THE SUB-CATEGORIES	23
Contested interpretation	23
THE ISSUE(S)	24
Voluntary discovery: 17 th October 2019	26
Sub-categories (i)(1) to (i)(4)	32
Sub-category (i)(1)	32
Sub-category (i)(2)	32
Sub-category (i)(3)	33
Sub-category (i)(4)	33
Sub-categories (i)(2)(a), (b), (c) & (d)	35
Sub-categories (i)(3)(a), (b), (c), (d) & (e)	35
Sub-categories (i)(4)(a), (b), (c), (d), (e) and (f)	36
Sub-category (i)(5)	37
Sub-category (i)(6)	37
Sub-category (i)(7)	38
Sub-category (i)(8)	38
Sub-category (i)(9)	39
CATEGORY (II)	41
Sub-category (ii)(10)	42
Sub-category (ii)(11)	42
Sub-category (ii)(12)	43
Sub-category (ii)(13)	43
Sub-category (ii)(14)	44
Sub-category (ii)(15)	45
ISSUES TO ADDRESS	46
PROPOSED ORDERS	48

INTRODUCTION

Preliminary

1 The context for the following motion, insofar as the plaintiff's claims against the fourth named defendant (“Mr. Moran”) and the fifth named defendant (“the Minister”) 1 are concerned, centres on the allegation that Mr. Moran and the department engaged in contact and correspondence with a representative of Sir David and Sir Frederick Barclay (“the Barclay Brothers” or “the Barclay Interests”) concerning the potential purchase of the plaintiff's loans from the Irish Bank Resolution Corporation (“IBRC”) in or around October and November 2011.

2 In summary, it is alleged by the plaintiff, Mr. McKillen, that as a result of the National Asset Management Agency (“NAMA”) acquiring loans in or around May 2010 which were taken out by companies that he was associated with, 2 the Department of Finance gained access to confidential information in relation to his business affairs. Mr. McKillen was a shareholder in a company called Coroin Limited and the security for his loans, initially with IBRC and then with NAMA, were his shares with Coroin Limited. He alleges that the Barclay Interests (and entities associated with Sir David and Sir Frederick Barclay) acquired the Coroin Ltd loans and associated security from NAMA and, acting on information obtained from NAMA, the Barclay Interests sought to acquire Mr. McKillen's loans from IBRC and sought the assistance of the defendants in this regard. Mr. McKillen states that this alleged contact between the defendants and the representative of the Barclay Interests amounts to misfeasance of public office and/or an abuse of process and/or acting with indifference in relation to Mr. McKillen's commercial interests.

3 A full defence has been delivered on behalf of the Minister and Mr. Moran.

4 For their part, it is submitted on behalf of the Minister and Mr. Moran that the central (and single) factual allegation made against them by the plaintiff in these proceedings is that they engaged in contact and correspondence with a representative of the Barclay Interests 3 concerning the potential purchase of Mr. McKillen's loans from IBRC in the period of October and November 2011. The defendants state that their position is straightforward: contact was made by a representative of the Barclay Interests and he was referred via e-mail to IBRC who were the owner of the plaintiff's loans. It is also emphasised on behalf of the Minister and Mr. Moran that Mr. McKillen's loans were not in fact purchased by the Barclay Interests as a result of any contact with them and that, therefore, the only issue between the parties is the alleged contact between the defendants and the representative of the Barclay Interests.

5 The central issue which arises in the application before me concerns the interpretation of an order of this court (Allen J.) dated 11 September 2020 which was made with the consent of the parties and which directed the Minister (on his behalf Mr. Gary Hynds 4) and Mr. Moran 5 to make discovery in the terms agreed by the parties and set out in the court order.

6 I heard oral submissions from Mr. Paul McGarry SC (and received written Legal Submissions from Mr. McGarry SC and Mr. Jack Tchrakian BL) for Mr. Patrick McKillen, the plaintiff. I also heard oral submissions from Mr. Patrick McCann SC (and received written Legal Submissions from Mr. McCann SC and Mr. Michael Binchy BL) for the Minister and Mr. Moran.

Motion dated 3rd May 2022: the application before the court

7 It was indicated at the commencement of the application that the plaintiff was not pursuing the strike out application against the Minister and Mr. Moran in the first relief sought in the notice of motion dated 3 ^rd May 2022.

8 The third relief in the notice of motion, again sought in the alternative, is an order pursuant to O.31, r.12(11) and O.31, r.12(12) of the Rules of the Superior Courts, 1986, as amended and substituted (“RSC 1986”) varying the terms of the consent order dated 11 ^th September 2020 (Allen J.) so as to require the defendants to make discovery on oath of the further categories of documentation (“Further Categories”) set out at Schedule 2 to the notice of motion dated 3 ^rd May 2022.

9 The two remaining applications are the reliefs sought in paragraphs 2 and 4 of the notice of motion dated 3 ^rd May 2022 which were sought as alternatives to the strike out application but which, as stated, is now not being pursued.

10 At paragraph 2 of the notice of motion dated 3 ^rd May 2022, the...