The High Court has ordered DD Growth Premium Master Fund (in liquidation) to make discovery of documents across 20 categories sought by its former administrator, PNC Global Investment Servicing (Europe) Limited, now known as BNY Mellon Investment Servicing (International) Limited. The court also ordered discovery of documents supporting the administrator’s plea that the fund’s alleged losses were caused by the fund or its directors, but adjourned the remainder of the fund’s application.
The ruling concerns competing discovery applications in the fund’s claim for about US$415 million. The fund alleges that the administrator breached contractual duties when calculating its net asset value, including by mispricing over-the-counter options and mishandling valuations of Reflect Scientific and Asseterra bonds. Those allegations are denied. The administrator pleads, among other things, that the fund or its directors caused or contributed to any losses.
Justice Cregan said documents concerning the two feeder funds were relevant to the proceedings, despite the feeder funds not being parties. He also rejected the fund’s approach of leaving disputed subcategories unresolved until after discovery, saying that would waste legal and court resources. The court ordered discovery of the categories and subcategories it found within the requests, generally subject to the documents being within the fund’s possession, power or procurement. Compliance with the order, and any dispute about the documents produced, remained for another day.
The judgment considered a UK Upper Tribunal decision concerning the fund’s former director, Alberto Micalizzi, and the Asseterra bonds. The court noted that the UK tribunal had made findings adverse to him, including findings of dishonesty. It expressly left the status and evidentiary effect of those findings under Irish law for the trial; it did not determine the fund’s liability claim in this discovery ruling.
The fund’s own discovery application sought documents relating to the administrator’s defence that losses were caused or contributed to by the fund, its directors, other persons, unrelated events or events outside the administrator’s control. The court found the request sufficiently clear and proportionate insofar as it concerned the fund and its directors, and ordered discovery on those elements. It considered the remaining elements too vague to order as framed and adjourned them for several weeks, allowing the fund to seek particulars and then reformulate its request, or to make a more precise request without first seeking particulars. The court also reserved the question of any temporal limit for further submissions.