The High Court has refused Garrett Kelleher’s motion seeking an order requiring the National Asset Loan Management Limited (NAMA) to comply with earlier discovery orders, or alternatively staying its claim against him until it did so.
In an ex tempore judgment delivered on 7 March 2018, Mr Justice Twomey said the court had sworn evidence from two NAMA employees that all relevant documents had been discovered. The court was not satisfied that Mr Kelleher had shown documents were in NAMA’s possession but had not been disclosed, or that the employees’ understanding of relevance was wrong.
The motion concerned High Court and Court of Appeal orders requiring NAMA to provide discovery. NAMA had filed affidavits of discovery dated 8 and 15 December 2017. Mr Kelleher complained about material concerning co-operation over the Chicago Spire foreclosure process, efforts to locate a purchaser for a loan or asset, records of meetings, and internal documentation. He believed further documents existed, despite NAMA employees’ sworn statements that its discovery was complete.
The judge noted that Mr Kelleher pointed to meetings for which no minutes or notes had been discovered. NAMA’s affidavits referred to electronic searches, including a search of the NTMA Enterprise Vault System, which contains deleted emails. The court said it could not simply disbelieve the employees’ sworn evidence on the material before it. It also considered that a further order might merely produce another affidavit repeating that discovery was complete, and would not be meaningful.
The judgment does not decide whether NAMA’s discovery was in fact complete. The court said Mr Kelleher might ultimately be proved right, but found that the evidence before it did not justify the order he sought. It refused the motion.
The underlying claim concerns NAMA’s effort to enforce guarantees for €46 million. Mr Kelleher’s defence is that NAMA represented that the guarantees would not be enforced if he co-operated, and that he did so. The judgment addressed only the discovery motion, not the merits of that dispute.