The Court of Appeal has dismissed two appeals by Dunnes Stores over access to documents in its ongoing dispute with Point Village Development Limited (PVDL). The court ruled on the scope of discovery and the use of documents from earlier proceedings; it did not decide whether the €15 million payment was due under the parties’ 2010 settlement agreement.
The dispute concerns a clause requiring €15 million, plus accrued interest, to be released from a nominated account after confirmation that binding agreements for lease had been exchanged with tenants for at least seven ground-floor units at the Point Village Centre. Dunnes Stores argues that the clause requires “high class” tenants. PVDL and its receivers contend that the required confirmation was provided. The underlying 2016 proceedings have not yet gone to trial.
In the first appeal, Dunnes Stores challenged a High Court decision allowing limited discovery in one of four categories it had sought. That category covered discussions between the parties about the proposed ground-floor tenant mix. The Court of Appeal upheld the order for inter-party correspondence and records of a meeting held on 18 July 2014. The judgment said there was no suggestion of other discussions between the parties on tenant mix.
The court also upheld the refusal of discovery about the receivers’ dealings with actual and potential tenants, lease documents, and records concerning the proposed tenant mix. It reasoned that those materials would principally show the beliefs or conduct of PVDL, the receivers or their solicitors about the meaning of the settlement clause. The meaning of the clause is for the trial court to determine using ordinary principles of contractual interpretation, the judgment said.
The second appeal concerned Dunnes Stores’ request to let its legal representatives use discovery documents from proceedings begun in 2009. The Court of Appeal upheld the refusal to release the company from the implied undertaking that discovered documents be used only for the litigation in which they were disclosed.
The court said the request overlapped with categories of discovery refused in the 2016 proceedings and, in context, amounted to an attempt to circumvent that decision. It also found the earlier documents’ relevance to the meaning of the later 2010 agreement remote, and said the special circumstances needed to release a party from the undertaking were absent.
Both appeals were dismissed. The judgment, delivered by Mr Justice Gerard Hogan on 12 May 2017, did not resolve the underlying payment dispute.