Paddy McKillen secures disclosure from Barclay brothers in IBRC loan caseWednesday 12 February 2014 18.09
The High Court has ordered the Barclay brothers to provide a limited disclosure of documents to property investor Paddy McKillen ahead of his challenge to the sale of his IBRC loans to the billionaires.
Mr Justice Michael White has ruled that Mr McKillen's lawyers must get discovery of certain communications between the brothers and the Department of Finance, IBRC and the National Assets Management Agency.
The communications, between any person or entity acting on behalf of the Barclay interests, or any of the trustees of their family settlements, relate to the proposed acquisition by the Barclays of Mr McKillen's loans with IBRC.
Mr Justice White said he was concerned to safeguard the bid process for sale of the IBRC loans next month.
It was also essential the 4 March trial date of Mr McKillen's challenge is kept in place, he said.
If any issue arises in relation to the discovery orders, the court retained discretion to examine those documents and if necessary refuse to include them as part of discovery, he said.
Mr McKillen, who last year lost his British court battle against the Barclays for control of three luxury London hotels in the Maybourne Group, is seeking declarations that the Barclays are not entitled to acquire his loans personally or indirectly and that IBRC is not entitled to sell them to the Barclays.
He is also seeking damages for breach of contract, conspiracy and intentional interference with his economic interest.
The claims are denied.
The Barclays had opposed his application for further discovery, arguing that it would be unduly oppressive and that full disclosure had already been made as part of last year's case in London.
Mr Justice White said that while there was substantial court-ordered discovery during the London case, the reliefs sought by Mr McKillen in Ireland are different.
The focus of his case here was the attempt by the Barclay interests to acquire Mr McKillen's loans with IBRC, he said.
He said Mr McKillen was seeking to introduce into the Irish proceedings matters which were the focus of extensive evidence and argument during the English case.
In relation to the claim against the Barclays of wrongdoing in their efforts to acquire Mr McKillen’s loans prior to the appointment of the special liquidators to IBRC in February 2013, there was an overlap between the English and Irish cases, the judge said.
While there had been some discovery of communications between the Barclay interests and the Department of Finance, NAMA and IBRC, the judge said he accepted that this was not the primary focus of the English case.
An issue in relation to the deletion of material, including text messages, by both the McKillen and Barclay sides had been raised during this discovery application and was the subject of considerable attention in the English case.
While there should be no further issue about this for next month's hearing, the court would expect any deleted emails could be recovered.
In relation to allegations by Mr McKillen over the Barclays’ obligations under the shareholders agreement and his argument the Irish court should interpret that agreement in the context of Irish law, the judge was satisfied discovery provided under this heading during the English case had been sufficient.
While it was appropriate to consider the claim that further discovery by the Barclays would be unduly oppressive, the judge said the order for discovery he was making now was aimed specifically at the Barclays' efforts to acquire the McKillen loans.
It was appropriate for the court to infer, based on information already disclosed, that this was under the control of senior Barclay executives, he said.
In those circumstance, it should not be "an unduly difficult task" to trace any relevant documentation and communications between the various Barclay defendants in relation to the determination of the Barclay interests to acquire these loan facilities, he ruled.
Belfast-born Mr McKillen drew down a number of property loans from the former Anglo Irish Bank, now IBRC. Part of the loan facility, of around €300m, was secured on Mr McKillen's shares in Coroin, the company at the centre of the London High Court case.