Developer Garrett Kelleher loses appeal on Nama files discovery

Court confirms it cannot order compliance with existing order in face of sworn statements

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

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

 

Former Chicago Spire developer Garrett Kelleher has lost his appeal over a judge’s refusal to require Nama to comply with an order for discovery of documents for his defence of its action seeking a €46 million 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 some four weeks.

In opposing Mr Kelleher’s appeal over discovery, Nama 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 on Thursday, 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.

Forthcoming action

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

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

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 €975 million ($1.2 billion) 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, the High Court’s Mr Justice Michael Twomey said that, while Mr Kelleher might ultimately be proven correct, he had not provided any documents to prove documentation had not been given over to him.

Nama had provided sworn statements that full discovery had been provided and the court could not “simply disbelieve” those.

Enforcement

Edward Farrelly, for Mr Kelleher, had argued his client cannot understand how Nama, a public body dealing with assets worth hundreds of millions, has provided no notes of some 60 contacts with him.

Mr Kelleher had co-operated with Nama over years and considered there was a “trumped up” basis for enforcement.

Nama had carried out investigations into his assets and Mr Kelleher believed there were reports which gave him “a clean bill of health” and showed he had received no funds from an €85 million equity release, counsel said.

Brian O’Moore SC, for NALM, said it firmly rejected any suggestion it had misunderstood or disapplied the rules for discovery. On the claims about material concerning 62 contacts, Mr Kelleher has only identified one meeting relevant to the issues in the case. There were many other meetings not relevant to this case and there was “nothing sinister” as appeared to be inferred, he said.

Mr Farrelly had argued every meeting with Nama was about co-operation and was therefore discoverable.