The Court of Appeal has dismissed Garrett Kelleher’s appeal against a High Court refusal to order National Asset Loan Management Limited (NALM) to make further discovery or stay its claim until it did so.
Mr Justice Michael Peart delivered the judgment on 15 November 2018. The appeal concerned a motion refused by the High Court on 9 March 2018. The Court of Appeal said the motion sought an order requiring NALM to comply with earlier discovery orders, or alternatively staying its claim. The judgment said that form of application was not provided for by the Rules of the Superior Courts.
Earlier orders required discovery of documents evidencing NALM’s consideration of the adequacy of cooperation provided between 1 November 2010 and 28 March 2014. The Court of Appeal had varied the High Court order in March 2017 to add a category of documents. NALM later agreed to provide two further categories.
The dispute included whether the discovery obligation covered investigation reports concerning Mr Kelleher’s assets, and whether NALM held minutes or memoranda of meetings that he said had taken place. NALM maintained that it had complied with its obligations. Its affidavits said comprehensive searches had been carried out and that no further documents existed. Mr Kelleher argued that the investigation reports fell within the discovery category concerning consideration of his cooperation.
The Court of Appeal found no error in the High Court judge’s approach or conclusion that no further order should be made. It said the existing order was clear: it covered documents evidencing consideration of the adequacy of cooperation. The court also accepted the affidavit evidence addressing the alleged meeting records.
On appeal, Mr Kelleher’s counsel said the application was not one for “further and better discovery” in the traditional sense. The court noted that counsel identified no specific rule under which it had been brought, and described the application as lacking a proper basis in its stated form. It said possible routes included seeking further and better discovery, seeking to strike out the claim for failure to make proper discovery, or asking the court to clarify its earlier order.
The appeal was dismissed. The Court of Appeal did not order further discovery or stay NALM’s claim. It observed that the motion and appeal had used court time and added to the cost of proceedings, with the trial then scheduled to begin on 4 December 2018.