The Supreme Court has upheld the High Court’s approach to a discovery dispute in proceedings over a property at Custom House Quay, Co. Wexford, while directing Ulster Bank Ireland Limited to make discovery on the terms it had agreed in 2013.
In a judgment delivered on 18 December 2019, Chief Justice Clarke said the trial judge was entitled to take account of how the parties had engaged in attempts to agree voluntary discovery. The Court found no basis to interfere with the decision to proceed on the Bank’s considered response to Martin Power’s original request, rather than examine every category in a substantially revised request.
The underlying proceedings concern a loan and the purchase of the property by Tweedswood Limited. The Bank claims funds were advanced in 2002 for the purchase and secured by a mortgage debenture. Mr Power, a director of Tweedswood, disputes that account. He alleges the funds were used in a separate transaction for the benefit of the vendor, and that defects in the property’s title meant Tweedswood was not offered good and marketable title. The Bank denies the alleged wrongdoing. The Supreme Court stressed that the appeal concerned discovery procedure, not the merits of those claims.
Mr Power initially sought discovery in 40 categories, later adding 10. After correspondence and revisions, his May 2013 request listed 69 categories. The Bank had responded to the earlier request by agreeing to some categories and proposing changes to others. The High Court dismissed Mr Power’s motion for an order compelling discovery, considering the Bank’s response sufficient at that stage.
The Supreme Court held that courts may consider the parties’ conduct during voluntary discovery and may order an initial, limited disclosure while leaving open the possibility of further focused discovery after the documents are reviewed. Whether that staged approach is efficient depends on the circumstances, and trial judges have a significant margin of appreciation, the Court said.
The Court varied the High Court order by directing the Bank to make discovery in the terms recorded in its solicitors’ letter of 8 April 2013. The Bank had said some agreed materials might contain confidential third-party information and that a court order was therefore required. The Court also left Mr Power at liberty to seek further narrow and focused discovery after reviewing the disclosed documents, while making clear that this did not permit another wide-ranging request.
The judgment did not determine whether the loan, mortgage or title allegations were correct.