National Assets Loan Management Ltd v Kelleher

JudgeMr. Justice Twomey
Judgment Date07 March 2018
Neutral Citation[2018] IEHC 106
Docket Number[2004 No. 1756 S]
CourtHigh Court
Date07 March 2018

[2018] IEHC 106



Twomey J.

[2004 No. 1756 S]


Banking and Finance – Loan agreement – Loan default – Bona fide defence – Discovery of documents – Lack of evidence

Facts: The defendant filed a motion for seeking an order from the Court requiring that the plaintiff should comply with the earlier orders of the Court for making the relevant discovery. The defendant claimed that the plaintiff had failed to comply with its discovery obligations. However, the plaintiff argued that it had complied with its discovery obligations.

Mr. Justice Twomey refused the motion. The Court held that it had no sufficient evidence to conclude that there was non-compliance of order by the plaintiff. The Court noted that the defendant should have provided the detailed documents that showed what particular documents were lacking.

EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 7th day of March, 2018.

The background to this motion is that the plaintiff (‘NAMA’) in the substantive proceedings is seeking to enforce guarantees for €46 million against the defendant (‘Mr. Kelleher’), who was involved in the development of the Chicago Spire. Mr. Kelleher claims in his defence to those proceedings that NAMA represented to him that if, inter alia, he co-operated with NAMA, which he says he did, the guarantees would not be enforced.


The present proceedings concern a motion by Mr. Kelleher regarding compliance with an order of the High Court on the 13th October, 2016, and an order of the Court of Appeal on the 3rd March, 2017, ordering NAMA to provide discovery of certain documents to Mr. Kelleher.


By affidavits of discovery dated 8th December, 2017, and 15th December, 2017, NAMA sought to comply with its discovery obligations under those discovery orders made by the High Court and the Court of Appeal.


However, in this motion, Mr. Kelleher seeks the following relief:

‘An Order requiring the Plaintiff to make discovery in accordance with the order of this Honourable Court dated 13th October 2016, the order of the Court of Appeal dated 3rd March 2017 and as agreed between the parties or in the alternative an order staying the plaintiff's claim until it does so’.


This application is curious, since it seeks an order from this Court ordering the plaintiff to comply with orders of this Court and the Court of Appeal. However, the essence of Mr. Kelleher's claim seems to be one of non-compliance by NAMA with its discovery obligations, albeit that it is framed as an application for an order for NAMA to comply with a court order.


There are a number of heads under which Mr. Kelleher complains about the discovery, namely (1) Co-operation re: the Spire Foreclosure Process; (2) Locating a purchaser for the loan/asset; (3) Lack of Documentation on Meetings, and; (4) Lack of Internal Documentation.


In essence Mr. Kelleher does not believe that NAMA has complied with its discovery obligations under each of these headings and he believes that there are other documents available to it which have not been discovered, despite sworn averments from employees of NAMA that all relevant documents have been discovered.


Since litigants normally view a case only from their own perspective, Mr....

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