The High Court has ordered a receiver to make discovery of a 2014 Mortgage Sale Deed, subject to specified redactions, but refused the defendants’ request to inspect the original of a 2015 Global Deed of Transfer.
Mr Justice Dignam delivered the ruling on 25 September 2023 in proceedings brought by Eoin Ryan against Bernadette (otherwise Bernie) Purcell and John Milton. The motion concerned discovery and inspection, not the ultimate validity of the receiver’s appointment or the transfer of the defendants’ loans and mortgage.
The defendants had loan facilities with First Active plc secured by mortgages, including one over a property in Rathgar that they describe as their family home. The judgment says the loans and mortgages were transferred to Ulster Bank Ireland Limited in 2010. The plaintiff says Ulster Bank later transferred the loans and mortgage to Promontoria (Aran) Limited (PAL) and that his appointment as receiver was novated to PAL. The defendants dispute the validity of his appointment and the transfers.
The parties had agreed that discovery would cover documents relied on to evidence the transfer and documents necessary to validate it. The plaintiff had not disclosed the Mortgage Sale Deed dated 16 December 2014, arguing it was an agreement to transfer the assets rather than the instrument that effected the transfer. The court found the deed discoverable because the Global Deed of Transfer and other documents relied on cross-referenced it and incorporated its definitions. The judge said the documents had to be read together.
The order allows redactions for commercial sensitivity, bank or client confidentiality, and irrelevance. The plaintiff must explain the grounds for each redaction in an affidavit of discovery. If the defendants challenge any redaction, the court will decide whether it is appropriate. The judgment did not decide whether the deed itself effected the transfer; it noted that the defendants could cross-examine the plaintiff on that issue at trial.
The defendants also sought to inspect the original Global Deed of Transfer. The court said they had to show that inspection was necessary for fair disposal of the case, such as by giving a litigation advantage or preventing a disadvantage. The judge was not satisfied that problems concerning other documents established a need to inspect this original, particularly where explanations had been given for those problems. The court therefore made no order for inspection of the original.
The ruling noted that some other issues had been resolved on the basis that the plaintiff would provide further discovery, including clarification about the applicable Deed of Conveyance and Assignment. Those matters were not decided in this motion.