The High Court has ordered Irish Bank Resolution Corporation Limited (in special liquidation) to disclose any reports furnished to it about alleged interest overcharging on facilities and a derivative contract held by six plaintiffs.
Mr Justice Tony O’Connor made the discovery order in proceedings brought by David Colgan, Mark Colgan, Davis Colgan, Patrick Ryan, Philip Monahan and Finian McDonnell against the bank and the National Asset Management Agency. The judgment, [2017] IEHC 43, was delivered on 20 January 2017.
The plaintiffs’ application was narrowed during the hearing to the reports themselves, excluding communications about them. The bank opposed the application, arguing that the plaintiffs could not show direct relevance and that agreed discovery of documents recording the calculation and charging of interest would provide what was necessary. It also argued that reports prepared after the relevant events would not affect how interest had been calculated.
The court found that any report on overcharging relating to the plaintiffs’ facilities or derivative contract would be relevant to their claim. The way interest was calculated and applied was a significant pleaded issue, and the plaintiffs sought a declaration on that question. The court said a report could assist preparation, presentation or cross-examination, and could reduce disputes. It also found the limited discovery necessary for the fair disposal of the proceedings.
The order is confined to reports furnished to the first defendant and generated between 7 February 2013, the stated date of appointment of Mr Wallace as joint special liquidator, and 1 November 2017. The first defendant was ordered to make discovery within 12 weeks. The judgment does not establish whether any such reports exist; the affidavit of discovery would disclose that. The court also left open any claim of privilege made in the prescribed manner, including for reports prepared for the dominant purpose of the proceedings.
The underlying proceedings concern alleged overcharging on facilities the plaintiffs had with the bank from January 1999 to November 2016, when they discharged their indebtedness, and a derivative contract relating in summary to October 2007 to October 2010. The order concerns discovery only; it does not determine whether overcharging occurred or resolve the plaintiffs’ claims.