The High Court has ordered Bank of Ireland to provide two categories of documents in a dispute over an additional payment claimed by Ailmount Investments following the sale of the Davy Group.
Ailmount says it is owed about €20 million under a 2021 share purchase agreement. The agreement provided for a possible increase in the sale price tied to a reduction in the group’s capital requirements. Bank of Ireland says the amount payable is nil because, it argues, the Central Bank did not confirm the relevant capital requirement in writing by the contractual deadline.
The order concerns discovery, not the underlying payment dispute. The court did not decide whether Ailmount is owed money or whether Bank of Ireland breached the agreement.
Ailmount sought regulatory capital returns and other documents recording or calculating the relevant capital figures, along with communications about the Davy Group’s capital requirements or regulatory returns. Bank of Ireland argued that discovery should stop on 17 July 2023, when the proceedings were issued, and that the communications category should be limited to exchanges between the defendants or Davy Group and the Central Bank.
The court rejected both proposed limits. It found that a Central Bank letter to the Davy Group dated 14 December 2023 made it probable that relevant documents existed after the proposed cut-off. It also considered the parties’ pleadings, including Ailmount’s later reply alleging a breach of clause 9.7 of the agreement. The judge held that an issue pleaded in a reply to a defence forms part of the pleadings when assessing relevance for discovery.
The court also rejected Bank of Ireland’s argument that Ailmount’s broader communications category would be disproportionate. It said the evidence did not quantify the additional documents or expense, and did not show that the additional seven months covered by Ailmount’s proposed period would be disproportionate.
The order grants both categories in the terms Ailmount sought, with documents covered up to the date of the order. It remains subject to privilege where applicable. The parties were directed to try to agree the form of outstanding orders and provide any draft order to the Registrar. The case was provisionally listed for mention a fortnight after judgment, at 10.45am, with the parties permitted to notify the Registrar if the listing proved unnecessary.