The High Court has ordered Betty Martin Financial Services Limited to provide security for the costs of discovery in its dispute with EBS DAC, but has not yet set the amount or final terms of that security.
In a judgment delivered on 29 October 2020, Mr Justice Quinn also directed EBS to disclose documents about specified communications in 2017 and material considered during an internal audit investigation. The ruling concerns discovery and its costs; it does not decide the underlying claims about termination or alleged pressure to mis-sell financial products.
The dispute arose after EBS gave notice in February 2018 to terminate three tied branch agency agreements covering Athlone, Longford and Lucan. Betty Martin Financial Services claims that termination breached the agreements and amounted to retaliation for its complaints about alleged pressure to sell unsuitable products. EBS denies those allegations and says the agreements allowed termination on 12 months’ notice without giving a reason.
The court ordered discovery of documents recording or evidencing communications between Declan Martin and EBS representatives Des Fitzgerald and/or Robert Bree from 29 May to 10 July 2017, if the documents were created by 30 November 2017. It did not adopt the plaintiff’s broader request covering communications between any representatives of both sides.
For the internal audit category, EBS must disclose documents considered by AIB Group Internal Audit during its investigation of the alleged conduct of Tim Gleeson, together with the audit report and its appendices. The court declined to extend this category to all documents generated during the investigation, explaining that the case was not an inquiry into the adequacy of the audit.
On security, the judge considered evidence that discovery could involve millions of files and costs estimated by Grant Thornton at up to €488,730 for the broader dataset. The plaintiff’s financial position and inability to meet a costs order from its own resources were not disputed on the evidence before the court. The judge found that EBS had a prima facie defence and that no special circumstances justified refusing security.
The court did not find that the plaintiff would be unable to provide security, or that requiring it would prevent the case going to trial. It will hear further submissions before deciding the amount and form of the security order.