The High Court has ordered Start Mortgages DAC to discover documents about the use of force during a 2020 repossession, along with five groups of documents it had already agreed to provide, in proceedings brought by the lender against Vincent and Madeleine (also known as Madeline) Kavanagh.
Mr Justice Conor Dignam’s 2 August 2024 ruling concerned the first defendant’s application for discovery of eight broad categories, divided into 34 sub-categories. It was a discovery application, not a trial of the parties’ claims. The judge did not decide the underlying trespass and breach-of-contract claims or the counterclaim.
The proceedings began in May 2021, after the lender said the defendants re-entered a Carlow property on 17 February 2020, the day it had taken possession under a court order. The lender sought an injunction and damages. An interlocutory injunction was granted in March 2022, and a later contempt ruling found the first defendant had breached it. The property was subsequently sold, and the lender’s claim is now for damages relating to the period it says the defendants trespassed there.
The judge ordered discovery of documents in category 6(24), concerning documents the lender relied on to use force to enter the property and against a person on 17 February 2020. He said those documents could be relevant to whether the force was justified and lawful. He also ordered discovery of category 7(28), (29), (30), (31) and (33), which the lender had already agreed to provide.
The court refused discovery of the other disputed categories. It found that many requests sought to revisit matters already determined in the Circuit Court possession proceedings and the High Court appeal, including the lender’s title and entitlement to possession. Other requests, including documents concerning the property’s later sale, were not grounded in the pleadings. The judge said the first defendant should have sought to amend the pleadings to raise a challenge to the sale.
The ruling also rejected requests for documents about the lender’s board decision to sue, its regulatory activities, and the defendants’ alleged indebtedness. The judge said the current proceedings were not a money claim based on the alleged debt. He declined to order discovery of the execution application papers, saying the issue could be addressed by discovery of the execution order itself.
The court did not order the lender to provide “attested” copies. The judge explained that discovery requires a party to list documents in its possession, power or procurement; questions about a document’s validity belong to a later stage.