Overview
The High Court has provided further guidance on a defendant's ability as a party to debt recovery proceedings to require lenders to produce redacted copies of the deeds evidencing the transfer of the defendant's loan and security.
In the case of Everyday Finance DAC v Enda Woods and Ciaran McNamara [2019] IEHC 605 the court granted an application pursuant to Order 31, Rule 18 of the Rules of the Superior Courts that the plaintiff produce certain deeds referred to in its indorsement of claim. The claim concerned proceedings to recover a sum of €4 million on foot of facilities advanced originally by AIB (Everyday Finance was a successor in title to AIB by virtue of a Deed of Transfer dated August 2018.)
The law
The relevant rule of the Superior Court states that "An order shall not be made under this rule if and insofar as the Court shall be of the opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs". Mr Justice McDonald stated that the legal test that an applicant must meet under this rule is whether the production of the document is necessary to dispose fairly of the cause or matter. He further stated that disclosure will be necessary where:
- it will give litigious advantage to the party seeking inspection; and
- where the information is not available to the party seeking inspection by some other means.
The defendants sought, amongst others, a copy of the deed which evidenced the transfer of the defendant's loans and security from AIB to Everyday. As the defendants contested Everyday's title and right to sue, the Court was of the view that it was necessary in the interests of disposing fairly of that issue that the defendants should see the relevant parts of the deed of transfer.
Precedent
However, the Court referred to the established position that such documents need only be produced in redacted format, showing only the parts evidencing the assignment of the relevant loans and the security. Mr. Justice McDonald opined, "If a Defendant wishes to see more of the deed, the burden is on the Defendant to show why more is necessary, and …. if the Defendant does discharge that burden, then the burden shifts to the Plaintiff to justify the extent of the redaction made."
By the sale logic, the Court rejected the defendant's application that Everyday produce certain other documents referred to in the indorsement of claim on the basis that the disclosure was not necessary to dispose fairly of the matter. It held that any application for disclosure of a document must be grounded in reasoned argument and not mere speculation.
Conclusion
The case reiterates that plaintiffs may be required to produce any documents relied on in court to advance a claim, if the court considers it necessary to dispose fairly of the case.
Everyday Finance DAC v Enda Woods and Ciaran McNamara [2019] IEHC 605
