The High Court has refused Patrick Wheelock’s application for documents showing the price paid by Promontoria (Arrow) Limited for his loan facility and mortgage, finding that the purchase price was not relevant and necessary to the current discovery application.
The decision, delivered by Mr Justice Twomey on 28 February 2020, concerns a discovery motion in proceedings involving claims about a mortgage over lands in Waterford known as the Monvoy Lands. Wheelock seeks declarations that the mortgage deeds are void, alleging that his former accountant, Michael O’Leary, forged his signature. Those allegations have not been determined in this judgment.
Promontoria counterclaims that Wheelock was unjustly enriched. It alleges that he benefited from funds used to buy and develop the lands, and from a €1.5 million settlement with O’Leary. Promontoria says the settlement was compensation connected to the alleged forgery and argues that, if the mortgage is held void, Wheelock could retain the lands free of the mortgage and benefit from the settlement.
Wheelock argued that the amount Promontoria paid for the loan and security was needed to assess whether any enrichment was at Promontoria’s expense. His counsel submitted that the purchase price could affect whether it would be equitable for Promontoria to claim the full settlement sum. The application sought documents recording that price.
Justice Twomey concluded that the relevant expense for the unjust enrichment claim was the potential loss of rights under the loan and mortgage if they are held void, rather than the price Promontoria paid to acquire them. On that basis, the acquisition price was not relevant and necessary for this discovery application, and the court refused the order.
The ruling does not decide whether the mortgage or facility letter is valid, whether Wheelock’s signature was forged, or whether he was unjustly enriched. The judgment also noted that a trial judge could order disclosure of the purchase price later if an account is ordered and Wheelock persuades that judge it is relevant and necessary.