The Court of Appeal has ordered Promontoria (Arrow) Limited to disclose documents showing the price it paid to acquire loan and mortgage rights connected to Patrick Wheelock’s property, for use in his defence of Promontoria’s unjust enrichment counterclaim.
In a judgment delivered on 12 March 2021, the court allowed Wheelock’s appeal against a High Court decision refusing discovery of the documents. The Court of Appeal held the material relevant and necessary for the fair disposal of the proceedings. It did not determine whether Wheelock was unjustly enriched or what, if anything, he might owe.
The underlying High Court case concerns Wheelock’s challenge to Promontoria’s appointment of a receiver over the Monvoy Lands in Waterford. Wheelock alleges that his signatures on a loan facility letter and mortgage deeds were forged, and seeks declarations and other relief. Those allegations remain disputed issues in the proceedings.
Promontoria’s counterclaim alleges that loan monies funded development of the lands and that Wheelock benefited from the development and from a €1.5 million settlement payment in separate proceedings against his former accountant. It seeks repayment or disgorgement if the loan documents are found invalid. Wheelock denies receiving or benefiting from the loan monies and disputes that any benefit was at Promontoria’s expense.
The discovery dispute concerned Category 13: documents recording the price Promontoria paid when it acquired the loan facility and related security from National Asset Loan Management Limited in December 2015. Promontoria argued that the acquisition price was irrelevant; the High Court agreed and refused discovery, while indicating the issue could be revisited if an account were later ordered.
The Court of Appeal concluded that the pleadings put Promontoria’s alleged expense in issue and that the purchase price could be relevant to the unjust enrichment claim, including its liability stage. It said the High Court had wrongly preferred one contested legal view at the discovery stage. The court also noted that no preliminary or modular trial had been ordered, so the parties had to prepare for liability and quantum together.
The order limits inspection of the documents to Wheelock, his solicitor with conduct of the case and his counsel. They must give written undertakings restricting use or disclosure of the price information, with Wheelock’s undertaking to be sworn by affidavit. The court directed that discovery be made within four weeks after the undertakings were filed. It left the High Court’s reserved costs order undisturbed and reserved appeal costs to the trial judge, subject to any request for a different costs order within 14 days.