The High Court has directed Irish Bank Resolution Corporation (IBRC) and Launceston Property Finance to explain extensive redactions in loan-transfer documents and to allow the plaintiffs’ solicitor to inspect versions with fewer redactions, subject to conditions. The court did not order the documents to be produced unredacted or inspect them itself at this stage.
Shane and Nicola Little allege that Irish Nationwide Building Society (INBS) breached a 2004 written commitment to replace a bridging loan with a long-term loan. They say this exposed them to excessive interest and led them to sell property to repay the debt when demanded. The first-named plaintiff borrowed further from INBS in 2004 and 2007. Those loans were transferred to Launceston in 2014, after the proceedings began.
Launceston’s defence and counterclaim seek recovery of the loans. It denies that the plaintiffs can set off their claims against the sums now owed to it. The plaintiffs sought inspection in unredacted form of a 2014 loan sale agreement and deed of transfer between IBRC and Launceston, saying the documents could show whether Launceston had actual or potential knowledge of their claims when it acquired the loans.
IBRC and Launceston argued that the redactions covered irrelevant or commercially sensitive material and that the plaintiffs had not shown disclosure was necessary for a fair disposal of the case. A solicitor who had worked on the documents swore affidavits stating that relevant terms had been provided and that the documents did not contain provisions addressing borrowers’ rights to set off claims against transferred indebtedness.
Mr Justice Tony O’Connor said the defendants’ explanations were “rather bald assertions”. The extent of the redactions made it difficult to understand the documents’ context, and the court was satisfied there was potential for a set-off claim, without deciding that it went beyond a prima facie claim. The judge said the plaintiffs’ legal representatives had a legitimate interest in checking whether the documents might support further inquiry.
The defendants were directed to file a supplemental affidavit categorising the redactions and explaining why each category was irrelevant, confidential or commercially sensitive. They must also identify in writing the portions they will refuse the plaintiffs’ solicitor permission to inspect and explain why they will not accept a confidentiality undertaking. The defendants may draft an undertaking they would accept.
The solicitor must be allowed to inspect documents with a reduced number of redactions, as identified by IBRC, on conditions to be specified by the defendants. The court will hear the parties on the terms of an undertaking governing disclosure of information from the redacted portions. The judge declined to inspect the documents before receiving the required categorisation and explanations. The judgment does not decide the underlying claims or counterclaim.