The High Court has ordered limited discovery in a dispute involving a receiver appointed over properties, directing the parties to disclose the mortgage deed relied on for the appointment and documents recording it. The order does not decide whether the appointment was valid.
Mr Justice Brian O’Moore delivered the judgment on 26 November 2021 in proceedings brought by Ken Tyrrell against David Wright and three corporate defendants. The application concerned four disputed categories of discovery sought by Mr Wright. The court also rejected an objection that he had already agreed the discovery terms: it found his correspondence showed he had reserved the right to seek further discovery if a comprehensive agreement was not reached.
The judge refused discovery of documents about the loans and their transfers. He said an earlier ruling had found the transfer from Anglo Irish Bank to Launceston was beyond challenge except on limited grounds that did not apply. The position of Pepper, whether as servicing agent or assignee, was not in controversy in the pleadings as they stood. The judge also noted that Mr Wright would receive redacted versions of relevant transfer documents.
A request for communications between the second counterclaim defendant and numerous third parties was also refused as unreasonably broad. The pleaded undervalue claim rested on a comparison between sale prices and adjusted values derived from Central Statistics Office figures. The judge said there was no pleaded allegation that inadequate marketing caused an unsatisfactory price. Valuations obtained by the counterclaim defendants were relevant, but would be disclosed under a separate category, Category 10.
On the receiver’s appointment, Mr Wright denied that a valid mortgage entitled Launceston to appoint Mr Tyrrell and pleaded that the mortgage deed did not exist. The judge ordered discovery of any mortgage deed under which Mr Tyrrell was purportedly appointed, and documents evidencing that appointment. He refused access to due diligence materials: any legal analysis in them could not influence the court’s decision on validity, and the materials were likely covered by privilege.
The judge refused discovery concerning the liquidation of the first counterclaim defendant, finding it was not required by any pleaded issue and was excessively broad. He left the timetable for discovery and costs to be addressed at a remote hearing on 30 November 2021, unless the parties agreed those matters by email. The judgment resolved only the disputed discovery requests; it did not determine the underlying claims.