The High Court has refused Patrick McKillen’s application for further discovery from John Moran and the Minister for Finance in proceedings concerning alleged contacts over the potential purchase of Mr McKillen’s loans from the Irish Bank Resolution Corporation (IBRC).
The judgment, delivered by Mr Justice Conleth Bradley on 11 December 2023, concerned a dispute over the scope of a discovery order made with the parties’ consent in September 2020. That order required discovery of specified communications involving Mr Moran, the Department of Finance, the Barclay Interests and IBRC.
Mr McKillen alleges that, after NAMA acquired loans taken out by companies associated with him, the Department of Finance gained access to confidential information about his business. He says the Barclay Interests acquired Coroin Limited loans and security from NAMA, then sought to buy his separate loans from IBRC with the defendants’ assistance. He alleges the defendants’ conduct amounted to misfeasance in public office, abuse of process or indifference to his commercial interests. These are allegations, not findings in this judgment.
The defendants’ position, as summarised by the court, was that a Barclay representative contacted them and was referred by email to IBRC, which owned the loans. They said the Barclay Interests did not buy Mr McKillen’s loans as a result of any contact with them.
Mr McKillen sought further and better discovery of documents he said fell within the 2020 order, additional discovery under court rules, and a further affidavit addressing how the defendants searched for documents. The judge found that the requested sub-categories sought material beyond the agreed categories, which had narrowed the broader discovery initially requested. He was not satisfied that Mr McKillen had shown the defendants held responsive documents that should have been disclosed but were not, or that the discovery deponents had misunderstood their obligations.
The court also refused the request for additional discovery. It found that Mr McKillen had not followed the mandatory steps required before seeking to vary the consent order, including giving the defendants a reasonable period to consider the proposed variation.
The judge declined to order a further affidavit. He said the existing affidavits and correspondence addressed the issues raised and showed that the discovery process had been correctly conducted. The court therefore refused the application in the notice of motion dated 3 May 2022.
The judgment did not determine the underlying allegations. It said the court would hear the parties on ancillary or consequential orders. On 21 December 2023, the judge agreed to an amendment removing NAMA, Paul Hennigan, Enda Farrell and the Department of Finance from the proceedings’ title. The judgment records that the proceedings remained extant against the fourth and fifth named defendants, Mr Moran and the Minister for Finance.