Tuesday 11 December 2018

Court says 'no basis' to Nama papers case

Developer Garrett Kelleher
Developer Garrett Kelleher

Tim Healy

Former Chicago Spire developer Garrett Kelleher has lost his appeal over a judge's refusal to force Nama to comply with an order for discovery of documents for his defence of its action seeking a €46m judgment against him over loan guarantees.

The action, initiated in 2014 by National Asset Loan Management (NALM), is due to open next month and run for four weeks.

Nama opposed Mr Kelleher's appeal and insisted it had provided all relevant material.

Mr Kelleher complained he got no material concerning more than 60 contacts between himself and the agency or investigations by it into his assets.

In a unanimous judgment, the three judge Court of Appeal dismissed his appeal.

Mr Justice Michael Peart said there was "no proper basis for bringing the application in the terms in which it was brought".

Under superior court rules, Mr Kelleher could have sought further and better discovery, an order striking out Nama's claim for failure to make proper discovery or asked the court to clarify its discovery orders if Mr Kelleher considered those unclear, he said.

To seek instead an order requiring Nama to comply with an order already made "seems meaningless and is not envisaged by any rules of court", he said.

He agreed with the High Court that because NALM officials had provided sworn statements that all relevant documents had been discovered, the courts could not go behind that in this application.

This application had wasted court time and added to the costs of proceedings, he said.

In its forthcoming action, NALM wants judgment of €46m from Mr Kelleher over guarantees on loans of some €350m provided by Anglo Irish Bank for projects in Ireland and the US.

Mr Kelleher and his company, Shelbourne North Water Street, were involved with the abandoned Chicago Spire project.

Last March, US lawyers representing Mr Kelleher filed a legal action against Nama claiming damages of €975m, alleging the agency destroyed the development "out of spite".

In opposing the NALM case here, Mr Kelleher has said, given his "extensive co-operation" with the agency over years, he was assured he would not be pursued over the guarantees.

After getting discovery documents, he complained he had not been given access to all the documents relating to his co-operation with Nama and the foreclosure process on the Chicago Spire project.

In a discovery ruling last March, Mr Justice Michael Twomey said, while Mr Kelleher might ultimately be proved correct, he had not provided any documents to prove documentation had not been provided.

Irish Independent

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