The High Court has ordered limited inspection of a redacted settlement agreement between Anne Maye and NAMA, in a dispute over whether the agreement was a reasonable step to mitigate her losses.
In a judgment delivered on 31 July 2015, Ms Justice Kennedy directed that Byrne Wallace Solicitors could inspect and copy specified clauses and schedules. The order arose from a motion seeking production of the unredacted agreement under Order 31, Rule 18 of the Rules of the Superior Courts. The judge considered whether disclosure was necessary for the fair disposal of the proceedings or to save costs.
Maye’s consolidated claim alleges that she had no option but to settle NAMA proceedings and that the defendants, including Byrne Wallace and consultant Kieran Duggan, were responsible for the liability she settled. The judgment records her claim arising from the settlement as €37,094,268, with additional costs, expenses and tax liabilities described as unascertained and continuing. These are pleaded claims, not findings made on this motion.
The court ordered inspection of clause 6, part of schedule 1, schedule 5, clauses 8.9, 14 and 15.3, and clauses 13.9 and 13.10. For figures in clauses 6.3 and 6.5, the parties are to use the term “reconciliation figure” rather than the actual figure. The order does not determine the underlying claim or whether Maye’s settlement was reasonable.
The judge also ordered safeguards for information about co-obligors: their names must not appear in pleadings or be used in court, and they may instead be referred to by initials such as “AB” or another method agreed by the parties. The disclosed material is subject to an implied undertaking that it be used only in the proper conduct of these proceedings.
The court refused inspection of clauses 13.4 and 13.5, which it found concerned the conduct of litigation and were not relevant to the pleaded case. It concluded that disclosure would not assist Byrne Wallace on an issue between the parties and could give it an unfair tactical advantage.