The High Court ordered the defendants in a commercial dispute to provide further discovery about Phase 2 of a Gardiner Street student accommodation project and to explain how they searched for documents. It refused the defendants’ application for additional discovery from the plaintiffs concerning sites in Coventry and Birmingham.
Mr Justice David Barniville delivered the judgment on 11 September 2019 after hearing the three motions on 19 July. The underlying case, listed for trial in January 2020, concerns allegations by property development companies that former employees breached contractual and other duties, concealed commercial opportunities and misused confidential documents. The defendants deny wrongdoing. The court’s judgment addressed discovery disputes, not the merits of those allegations.
On the plaintiffs’ first motion, the court found that the defendants had not adequately explained redactions to sale contracts concerning Phase 2 of the Gardiner Street project. The defendants had said the redacted parts concerned the deal’s structure and were commercially sensitive. The judge said that general explanation did not establish whether the redactions were justified. He ordered the defendants to provide a detailed explanation on oath and to discover agreements in their possession, power or procurement relating to the project’s purchase, sale, development and financing. The court left the precise timing and terms of the orders for discussion with counsel, including whether the plaintiffs should give undertakings about use of the documents.
The judge also directed the defendants to explain on affidavit how their original discovery process and a later review had dealt with documents falling within Category 2, concerning use of material allegedly taken from the plaintiffs or the wider O’Flynn Group. He did not order a broad fresh search under that category. He found that the defendants’ earlier affidavits had not explained how documents identified by the plaintiffs were missed or how the later review addressed that problem. If the notes exhibited to an affidavit by Patrick Cox had not been supplied in native form as agreed, they were to be provided promptly.
The second motion sought discovery following the joinder of two additional defendants and amendments to the claim. The defendants had agreed to provide specified documents by 9 August 2019. The judge said he would discuss with counsel what further order, if any, was needed, and that the same requirement to explain the discovery methodology applied.
The defendants’ third motion sought further documents about an alleged arrangement involving Tony Gallagher and disclosures to NAMA concerning the Coventry and Birmingham sites, including communications with RBS and Co-op Bank. The judge held that the documents sought were not covered by an earlier discovery order. He also refused to order them as additional discovery, finding that they were not shown to be necessary for a fair disposal of the proceedings, given the procedural history and material already available to the defendants. He left the precise formal orders on all three motions to be settled after hearing counsel.