The High Court has refused a bid by two defendants for broad discovery of documents about arrangements between the plaintiffs, OCM EmRu Debtco DAC and two non-party witnesses in a dispute over a car park at Grand Parade, Cork.
In a judgment delivered on 15 August 2023, Ms Justice Eileen Roberts also refused an application to inspect an unredacted or less-redacted version of a 2016 loan sale deed. She directed the plaintiffs to provide specified confirmations by affidavit. The judgment dealt with discovery and inspection applications, not the underlying dispute over the lease or the authenticity of signatures on a deed of variation.
The proceedings concern a car park owned by the Model Investment Partnership and charged in favour of OCM. The plaintiffs, insolvency practitioners appointed as joint receivers, allege the first defendant is in unlawful occupation. The parties accept that the Partnership granted the first defendant a 20-year, three-month lease beginning in March 2003. The defendants rely on a disputed 2011 deed of variation said to reduce annual rent from €200,000 to €114,000 and extend the lease to 2043.
The plaintiffs plead that the deed of variation is not genuine and that signatures attributed to the third defendant and two Partnership members, Martin Kenny and Michael Pender, are not authentic. The defendants deny that the deed is invalid. Their defence alleged that the positions of Kenny and Pender were procured through consideration from the plaintiffs or OCM under arrangements with them. Justice Roberts characterised that as, in substance, a serious, unparticularised allegation akin to fraud.
The defendants sought documents relating to any agreements or commercial arrangements with Kenny or Pender. Justice Roberts refused the request, finding that suspicion did not justify discovery and that the wide-ranging request was not relevant to a pleaded issue. She said it was being sought to challenge the witnesses’ credibility, and that the dispute for trial was whether the signatures were valid. The court noted that the witnesses could give evidence and be cross-examined, and that the defendants could use their own handwriting experts.
The defendants also sought access to less-redacted terms of the loan sale deed by which OCM acquired loans and security. The judge accepted that the pleadings required the plaintiffs to prove the transfer. But she found that documents already supplied, including largely unredacted conveyance and transfer deeds, sufficiently detailed the assets transferred.
The court directed the plaintiffs to confirm by affidavit whether the relevant loans and security were excluded assets under the loan sale deed, identifying any that were. It also directed the plaintiffs’ category 2 discovery affidavit to include relevant loan sale representations and warranties, or confirm that none were relevant. The matter was listed for mention on 12 October to address issues arising from the judgment, including the form of order and costs.