The Court of Appeal has dismissed an appeal by Declan Rogers and Rogers Recycling Limited against a High Court order setting aside subpoenas for four proposed witnesses to attend a trial and bring company documents.
The judgment, delivered by Mr Justice Allen on 7 February 2025, said the appellants had not challenged the High Court judge’s findings that the witnesses could not give relevant evidence, that the subpoenas were oppressive, and that they would facilitate an abuse of process. The appeal court dismissed the challenge to the order on all grounds.
The underlying proceedings concerned industrial units at Ossory Road, Dublin 3. Rogers had mortgaged the properties to Allied Irish Banks in 2005. After he defaulted, a receiver was appointed in 2016. The loans and security were assigned to Everyday Finance DAC in 2020, and the properties were sold to Ossory Road Enterprise Park Limited in December 2021.
OREP sued Rogers in December 2021, seeking injunctions concerning interference with and collection of rents, as well as damages for trespass. Rogers Recycling was joined after Rogers said it leased one of the units.
Rogers’ defence and counterclaim alleged that the sale to OREP was part of a conspiracy and that the properties had been sold below the best price reasonably obtainable. His case referred to an April 2021 online auction where the highest bid was €1.424 million and the next highest was €1.413 million. OREP later paid €1.251 million. These were allegations in the underlying dispute, not findings in this appeal.
In June 2024, Rogers and Rogers Recycling obtained an order allowing subpoenas to be issued to Brendan Keogh, Jonathan Fenn, Ken Tyrrell and Kieran Dowling. The subpoenas sought their attendance at trial and documents about marketing and selling the properties. The proposed witnesses applied to set the order aside. Their solicitor’s evidence was that they had no direct knowledge of the sales or involvement in the marketing and auction matters covered by the subpoenas. That evidence was not contested by a replying affidavit.
The High Court set the subpoenas aside before the trial began. The Court of Appeal said the High Court had considered that non-party discovery could have been sought in an orderly way, but had not been. It rejected the use of last-minute subpoenas to require people said to know nothing about the case to bring company files to court in the hope of finding material.
The appeal court also dismissed the challenge to the costs order for the proposed witnesses’ motion. The appellants had not provided a transcript of the costs hearing or engaged with the judge’s reasons, so the appeal court said they had not established that the order was wrong. The Court of Appeal’s decision addressed the subpoena and costs appeals; it did not determine the underlying allegations about the property sale.