The High Court has ordered Paul Kenny to make discovery of documents in three categories in a dispute over the ownership and funding of development land in Cork. It refused a fourth category seeking his communications with third parties, finding that the request was not tied to the pleadings as they stood.
The judgment, delivered by Mr Justice David Barniville on 22 May 2020, concerns an application by the plaintiffs against Kenny, the eleventh defendant. It decides what documents he must disclose; it does not determine who owns Dildar Limited or the land, or resolve the underlying allegations.
The plaintiffs, acting as trustees of the Oaklands Property Trust, claim that more than €6.96 million from a pension fund was lost through alleged fraud and other wrongdoing by their solicitor, Ciaran Desmond, and financial adviser John Millett. They also allege that about €2.828 million of their funds was used without their knowledge or consent to help buy the Nemo lands in September 2013. The Kenny defendants dispute that account and say the purchase money came from Kenny family funds. Those claims remain contested.
Of the four disputed discovery categories, the court granted categories 7 and 9. These cover, respectively, documents about the terms of Desmond and Millett’s engagement by the Kenny defendants in relation to the land and Dildar, and documents relating to alleged representations or efforts to disguise the ownership position. The court also ordered category 10 discovery, but narrowed it. It includes documents about Kenny’s alleged awareness, before proceedings began in July 2017, of Millett’s fiduciary relationship with the plaintiffs, use of the plaintiffs’ personal data, and representations to Mann Made that the plaintiffs had or were to have an interest in Dildar and the land. It excludes awareness of an alleged fiduciary relationship with Desmond and use of third-party data, which the court found were not supported by the pleadings.
The refused category 12 sought communications between Kenny and named third-party defendants about the land transaction or investments through Clear Vision entities. The judge said the plaintiffs had not pleaded that Kenny was involved with those third parties in those matters. New information obtained through discovery from others did not alter the pleadings, and the court assessed relevance by reference to the case as pleaded.
The parties were invited to agree the precise terms of the order, including costs. If they could not agree, the plaintiffs were to submit proposed terms within seven days, followed by Kenny’s response within four days of receipt. The judgment left finalisation of the order and costs unresolved.