The High Court has ordered Irish Bank Resolution Corporation and Irish Nationwide Building Society to provide extensive discovery in two related damages actions arising from the Society’s collapse, while refusing several requests it considered too broad or unnecessary.
In a judgment delivered on 15 April 2015, Ms Justice Costello considered applications by defendants in the actions against former chief executive Michael P. Fingleton and five directors. The plaintiffs allege breaches of contract and duties, including negligence and fiduciary and statutory duties. They claim losses of up to €6 billion in the Fingleton proceedings. The defendants deny liability; their defences include arguments that losses following transfers to the National Asset Management Agency (NAMA) were not caused by their conduct.
The applications concerned discovery, the pre-trial exchange of relevant documents. The judge said the claims’ scale and the importance of the disputed issues had to be weighed against the burden of searching for documents. She found that general assertions of expense were insufficient to show that the defendants’ requests were oppressive or unreasonable.
Among the orders, the plaintiffs must disclose documents relating to the transfer of each Society loan to NAMA, including consultations, valuations and proposed transfer prices. The judge also ordered discovery of specified material about the Society’s lending policies and risk structures, and lawyers’ advice concerning interactions with NAMA through 1 July 2011. For Fingleton, the ordered categories included instructions varying interest rates from 1 January 2004 to 21 December 2005, and documents concerning efforts to reduce exposure to commercial lending from October 2007 to April 2009. The court also ordered documents about bank discussions on a possible sale or merger of the Society between January 2006 and April 2009.
Some requests were refused. The judge rejected a broad category seeking all documents about the Chief Executive’s exercise of delegated powers, finding it vague and disproportionate given other discovery ordered. She also refused requests for documents about why the plaintiffs decided to bring the actions, and for broad categories covering all documents said to evidence alleged lending-policy breaches. Other requests were unnecessary because ordered or agreed categories would cover the material, or were refused because the plaintiffs did not have the documents sought.
The ruling did not decide whether any defendant breached a duty or caused the Society’s losses. Costello J said she would hear further submissions on a limit for discovery concerning borrower refinancing and on the time allowed for discovery. The actions were not consolidated, although one judgment addressed both applications.