The High Court has ordered six defendants to disclose documents about efforts to acquire businessman Patrick McKillen’s loan facilities from the Irish Bank Resolution Corporation (IBRC), in a dispute linked to his shares in Coroin Limited, the holding company for the Maybourne hotel group.
Mr Justice Michael White’s ruling on 12 February 2014 concerned competing applications for discovery, a pre-trial process for exchanging relevant documents. The applications were heard on 5, 6 and 7 February. The court narrowed and recast the categories sought by Mr McKillen, ordering discovery from the fourth to ninth defendants for the period 1 January 2011 to 7 February 2013, when special liquidators were appointed to IBRC.
The order covers communications involving the defendants and the trustees of the Sir David and Sir Frederick Barclay family settlements, NAMA, the Department of Finance, IBRC and its special liquidators. It also covers specified material received from NAMA, Frank Knight or Elaine Tooke, engagement with Knight Frank or Ms Tooke, and documents relating to a defence statement that acquisition of the loan facilities was contemplated. The court retained the right to exclude documents if their disclosure would compromise the integrity of the bid process.
Mr McKillen’s Irish proceedings seek declarations concerning whether the loans may be acquired by the defendants, as well as damages for alleged contractual and other wrongdoing. The court did not decide those claims. It said the trial judge would determine the relationship between the Irish case and earlier English proceedings, including objections that issues were already decided or should have been raised there.
The judge found that discovery in England was sufficient for issues about interpreting the shareholders’ agreement and the wider dispute over control of Barclay-linked entities. But he said documents about efforts to acquire Mr McKillen’s IBRC loans were relevant and necessary to assist his case in Ireland. The ruling also said no further effort was expected to retrieve deleted text messages, while stored deleted emails or texts could be recovered.
The fourth to ninth defendants’ application sought discovery from Mr McKillen. The court ordered disclosure of documents showing the current position of each loan facility, including compliance or default, because of his claim that the defendants intended to engineer a default. The court said Mr McKillen’s status as a bidder for his own loans should be recorded in his discovery affidavit. It also said the affidavit should record that he had indicated he held no documents in the second category sought.
The court emphasised that the fixed trial date of 4 March 2014 should be maintained. The discovery ruling addressed document exchange only; it made no finding on the underlying allegations.