The High Court has refused Cornelius McFadden’s application for production, inspection and unredaction of documents relating to the transfer of loans and security to Pentire Property Finance DAC. The application concerned documents he had already received in redacted form, and a supporting power of attorney document for a Land Registry form.
In a judgment delivered on 16 December 2021, Ms Justice Reynolds said the application was, in substance, not one for discovery, but for access to unredacted versions of specified documents. The court applied the test under Order 31, rule 18: whether the requested material was necessary for the fair disposal of the proceedings or to save costs.
The underlying proceedings concern properties mortgaged by Mr McFadden and Theresa McFadden to Bank of Scotland (Ireland) Limited in 2003. Mr McFadden alleges the security documents were not completed in accordance with law. He also claims that Pentire, the first defendant, is not party to his agreements with the bank. The defendants deny that the security documents were procured or completed unlawfully.
Mr McFadden had earlier sought discovery of the same documents. That application was struck out in November 2018 after he did not attend, but the defendants’ solicitor had already provided substantial documentation. In the current application, he argued that redactions made the documents deficient and sought unredacted copies. The judgment records that he did not identify a specific basis for the claim or explain what prejudice the redactions caused.
The judge said redactions to the Purchase Deed, Deed of Novation and Deed of Assignment were justified by commercial sensitivity and customer confidentiality. She referred to earlier High Court decisions holding that borrowers may receive the parts of loan transfer documents that evidence the assignment of their loans and security, while other material may be redacted to protect commercial sensitivity and third-party privacy.
As to the requested supporting power of attorney document for Form 56, the judge noted that Mr McFadden had received a copy of the relevant Form 56 filed in the Land Registry. She said that, as a third party to the transaction, he was not entitled to look behind the authority of those who executed the form. The Land Registry had accepted the form in 2015 and registered Pentire as owner of the charges recorded against the relevant folios.
The court concluded that Mr McFadden had not shown further unredaction was necessary for the fair disposal of the case. It refused the application for discovery, inspection, production or unredaction. The judgment did not determine the underlying claims, which the judge said were matters for the hearing of the proceedings.