The High Court has refused Promontoria (Arrow) Limited’s request to have the priority of security over the Monvoy Lands decided as a preliminary issue in its €2.6 million debt claim against engineer Pat Wheelock. It also ordered Wheelock to disclose three redacted sections of a settlement agreement with accountant Michael O’Leary.
In an ex tempore judgment delivered on 18 April 2018, Mr Justice Twomey dealt with two motions in the Commercial Court proceedings. The underlying claim seeks repayment of a loan made under a 2011 facility letter. Wheelock’s defence is that O’Leary forged his signature on the facility letter and mortgage documents. The judge did not decide whether any signature was forged or whether the debt is owed.
Promontoria sought an early ruling on whether its security ranked ahead of any rights Wheelock claimed in the Monvoy Lands. The court noted that the pleadings sought judgment for a debt, not enforcement of security. NAMA, the original plaintiff, had also stated in replies to particulars that it was not seeking to enforce the mortgage deeds in these proceedings.
The judge rejected Promontoria’s argument that deciding priority now could save time and costs. He said the relevant rules concern efficiency in the proceedings before the court, while the security issue was not part of those proceedings as pleaded. The application for a preliminary hearing was refused.
The second motion concerned discovery of a settlement agreement from separate litigation in which Wheelock had sued O’Leary over alleged forgeries. That case settled in 2017, with O’Leary paying Wheelock €1.5 million. An earlier order required Wheelock to provide the agreement. He disclosed it with sections 4, 5, 13, 15 and 16 redacted. Promontoria accepted that sections 4 and 5 could remain redacted, but sought disclosure of the others.
Wheelock said sections 13, 15 and 16 concerned a private indemnity between the parties and were not relevant to Promontoria. Justice Twomey concluded that the terms could bear on whether the signature was forged or had been made at Wheelock’s direction, as O’Leary had asserted in a letter described in the judgment. The court ordered discovery of sections 13, 15 and 16. It made no finding on the alleged forgery or on what the indemnity provided.