2. The immediate context to this application relates to the issuing by the plaintiff of a Plenary Summons dated 22^nd May 2024 (Record No. HP 2024 2629P) which appears to relate to his dissatisfaction with Circuit Court proceedings in the Southwestern Circuit, County of Limerick bearing Record No. 2018/00901S and 6006/2024.

3. On 27^th May 2024, Baily Homan Smyth McVeigh, Solicitors (BHSM LLP) for the defendant, entered an appearance on behalf of the defendant and called upon the plaintiff to deliver a statement of claim.

4. Rather than delivering a statement of claim, the plaintiff issued the within application by Notice of Motion [1] dated 22^nd October 2024.

5. In that Notice of Motion (dated 22^nd October 2024) the plaintiff inter alia sought an order for "discovery to assist him in fully detailing in his Statement of Claim" of the following matters:

"(1) A sworn true copy; including all pages 1 to 20 of the document dated 27^th July, 2005, titled Denis and Brid Connaughton, Sluggary, Dooradoyle Road, Limerick.

(2) A detailed sworn statement with sworn proofs, written in plain language, that all express conditions grounding the loan offer/acceptance dated 25^th August, 2005 between Bank of Scotland (Ireland) Ltd as mortgagee and Denis Connaughton and Brid Connaughton as Mortgagors were carried out; as expressly required by the aforementioned contract.

(3) In regard to the Express Conditions for Interest Rate and the Interest Rate Mechanism expressed and the application thereof; a detailed sworn statement with sworn proofs, written in plain language, that these express conditions grounding the interest rate and interest rate mechanism in the said loan/acceptance stated 25^th August, 2005 between Bank of Scotland (Ireland) Ltd as mortgagee and Denis Connaughton and Brid Connaughton as mortgagors, noting therein, that since inception of the contract that the express conditions in regard to interest rate application were at all times operated in the express contract conditions as was expressly required by the mortgagee in aforementioned contract.

(4) All communications; notes, recordings; minutes of meetings; letters; email; faxes; and any communication is sent by the Broker, Providence Finance Services Ltd of 61 Lower Kilmacud Road, Stillorgan, County Dublin, acting as agent; and Bank of Scotland (Ireland) Ltd acting as lender; in regards to Loan Offer/Mortgage with Number [REDACTED].

(5) A sworn statement as to the Defined Type Agency held by Providence Finance Services Ltd at 61 Kilmacud Road, Stillorgan, County Dublin, and Bank of Scotland (Ireland) Ltd; including the scope of agency; functions and duties devolved to the aforementioned broker; by the lender, at the time of the issue of the loan offer dated 25^th August, 2005 and if applicable any communication since, in that regard.

(6) Sworn proofs that a 1^stlegal Mortgage/Charge was placed upon a property expressed therein, expressed under the Heading Security Required, as Slugaire[ [2]], Dooradoyle Road, Limerick as per the express condition contained in page 2 of the Loan Offer/Acceptance.

(7) A sworn detailed statement, preferably from a Bank of Scotland Plc Director in Scotland as to how my mortgage was transferred from the Irish entity Bank of Scotland (Ireland) Ltd to the Scottish entity Bank of Scotland Plc. to include what specific law of Ireland was depended upon and what law of Scotland was relied upon, to include a statement regarding how the strict privity of contract rules in Ireland were respected in regards the aforementioned contract of the 25^th August, 2005; paying particular attention to a contractual rights of the originating contracting parties. Further a sworn statement as to what legal mechanism was used in making a cross border Transfer and Assignment; and, further how attention was given to all legal and lawful rights of obligations in that contract.

(8) That the within plaintiff asks the Honourable Court for a stay upon any and all other proceedings and/or enforcement action; most particularly in the Circuit Court; in the County of Limerick, with record number 2018/00901S and 006/2004 until the conclusion of the within matter.

(9) that the within plaintiff asks this Honourable Court that no transfer of interest be allowed until the within plaintiff has all the information required to complete the statement of claim."

6. In this Notice of Motion, the plaintiff also sought the following reliefs from the High Court:

(a) An order granting the plaintiff his demands as sought in the application;

(b) An order issuing an order pursuant to the demands of his claim;

Basis for the application

7. In the Affidavit sworn on 22^nd October 2024 grounding the aforesaid Notice of Motion, the plaintiff states that he "requires information relating to the contract between the originating parties of the contract grounding the originating claim made by Start Mortgages Designated Activity Company [in order] to complete the Statement of Claim."

8. He further says that he has a "strong belief that the express conditions of the Mortgage Agreement being the loan offer/acceptance of 25^th August 2005 have not been adhered to."

9. The plaintiff also states that he has questions regarding the original contracting parties and the role of the broker and his Agency which go to the basis of the contract and securities and where experts in forensic/securities, that he has engaged, have identified errors. The plaintiff thus avers that he has expert testimony which can offer, from the documentation already furnished by Start Mortgages DAC, their opinion on alleged breaches.

10. Again, the plaintiff states that he requires discovery "to complete his detailed Statement of Claim" and at paragraph 6 of his Affidavit, he inter alia states as follows:

"there are too many questions in and around the transfers and assignments and operation of the mortgage while in the control of the Defendant, to allow the Start Mortgages DAC to carry out a further sale of anything that would obfuscate matters by removing themselves from all matters without giving direct answers to questions asked; this until full discovery is made".

11. At paragraph 7 of his Affidavit, the plaintiff notes that depending upon this discovery application, further discovery may be necessary and he requested that Start Mortgages DAC work quickly on his demands and to move matters expediently observing that "to date, any dealings have been have been long and drawn out by virtue of the defendant dragging its feet."

12. At paragraph 8 of his affidavit, the plaintiff sought a stay on any proceedings in the Circuit Court in Limerick.

Adjournment application

13. When this application came before me on Monday 31^st March 2025, at approximately 15:00, the plaintiff initially sought an adjournment of the application stating that he was tired from having travelled to Dublin from very early that morning, that he had been directed to different courts during the day and that fair procedures required that the matter should be adjourned.

14. It appears that the plaintiff's application had been listed for 14:00 on the day but due to an overrun of cases in another court, the matter was not dealt with at that time but was addressed at 15:00.

15. In the circumstances, I refused the application for an adjournment; the matter proceeded and took approximately 45 minutes.

16. This judgment arises from that hearing which took place between approximately 15:00 and 15:45.

DISCUSSION & DECISION

The 'originals' of documents sought

17. The plaintiff's notice of motion seeks 'discovery' of certain documents to assist his drafting of a statement of claim in his action against Start Mortgages DAC.

18. From his oral and written submissions, however, it is clear that what the plaintiff seeks is in effect to be given access to the 'originals' of certain documents. The plaintiff has copies of some of these documents in his possession and in fact, he referred to some of them when moving his application before me; this documentation is described, for example, in his written submissions as follows:

"(A) Deed of transfer, Deed of assignment dated 20^th February 2015

(B) Mortgage Deed Document relied upon in their Civil Bill summary proceedings 2018

(C) Loan Offer and Acceptance documents

(D) Account statements from inception and methodology used in calculations

(E) Documents signed by the Mortgagors to allow 3^rd party rights in the alleged original contract."

19. The plaintiff submitted that there are manifest errors in the copies of the documents which he has in his possession and that he needs the originals in order to verify those alleged errors.

20. He alleges, for example, that there are 'defective deeds'.

21. In his written and oral submissions, he alleges that a Deed of Assignment exhibited on or about 20^th February 2015 in earlier proceedings, is "heavily redacted, inconsistent in its makeup as a document with a different size print font and white page inserted suspiciously not part of the document. No reference to property address, folio number, names of Plaintiff's/Defendants and void of identity substance. The document is clearly a fabrication confirmed by documents expert. I require discovery of original deeds of transfer and assignment. Further Start Mortgages looked to carry on a course of dealings with a stranger account to the contract" (paragraph 3 of the plaintiff's written submissions).

22. At paragraph (10) of his written submissions, the plaintiff summarises what he alleges to be the defects in the "Mortgage deed document, Mortgage and Charge" as follows:

"(a) No account number referenced.

(b) Handwritten entry at point 9 (4^th page) not consistent with body of document.

(c) At point 9 (4^th page) [Does not] define if it's a loan, mortgage or gift....

(d) Different dates on document rendering it an invalid document.

(e) No contract in existence [sic.] on either 1^st or 11^th September 2005."

23. Under a sub-heading "Tracker Mortgage Issues", the plaintiff raises a number of issues including inter alia that there were allegedly two entities carrying on a course of dealings with two different "Account ID's" over a period of time.

24. Whilst the account numbers are redacted for the purposes of this judgment, the plaintiff alleges at paragraph (21) of his written submissions that he suspects that his compensation funds were transferred from a named numbered account to a numbered made-up stranger account without his consent or authorisation and that he has informed the Central Bank of the matter.

25. At paragraphs (22) to (28) of his written submissions dated 18^th February 2025, the plaintiff alleges why, in his view, he requires "full discovery" "with all documents and communication" and "full details and explanation" of matters including inter alia the following alleged matters:

"full discovery in relation to this matter with all documents and communication between BOS[ [3]], Start Mortgages and the Central Bank of Ireland and in particular a statement from Directors of Start Mortgages re their failure to comply with the CB Tracker Mortgage Examination and the Stop Further Harm directives..." (para. 22)

"...full details and explanation by way of a director's affidavit as to how my funds as compensation for years of overcharging systematically over a sustained period of time, can disappear from my account [REDACTED] in... [REDACTED] and, if found to be true, can end up in a made up number account at a [REDACTED] without my consent, knowledge or authorisation..."(para. 23)

"...full disclosure and discovery and an affidavit with statements from a competent Director, that at all times Start Mortgages DAC, its directors, agents, solicitors, others have complied with GDPR...I say there is a serious violation of my GDPR rights...

[reference is made to Regulation (EU) 2016/679, Article 8(1) of the ECHR and Article 16(1) of the TFEU]... (para.24)

"...full disclosure by way of a directors affidavit and discovery on all securitisations carried out in this matter..." [making reference to his own commissioned report by a securitisation lawyer and also referring to section 1(f)(2)(c)(ii) of the Consumer Protection (Regulation of Credit Servicing Firms) Act 2015] (para.25)

"...copy of 'all' bank/financial statements, 'not' transactional history, showing interest rates applied/changes methodology used from inception to date. My commissioned forensic report from forensic auditors shows this matter was 'not' in arrears when brought to court. They require further data to deep dive other irregularities as identified..." (para.26)

"...a full explanation by way of a director's affidavit and discovery as to how BOS ... appeared on my folio [REDACTED] at Tailte Éireann on 9^th April 2015 when in fact BOS had sold on to Start on 20^th February 2015 some months earlier and had no right to trespass on my folio. BOS were not on my folio as a registered charge burden at the time of alleged transfer. I believe this was an attempt to cure a defect in chain of title issue..." (para.27)

"...a full explanation by way of a director's sworn affidavit and discovery as to how Start Mortgages DAC, acting in the role of a credit servicer, can issue a demand letter re a made-up stranger account number [REDACTED]. As I understand, I have no obligation to this made-up stranger number, or any alleged default and the Mortgagors remain in honour of their original contract with the Bank of Scotland party" (para.28).

Plenary Summons: Denis Connaughton v Start Mortgages DAC (HP 2024/2629)

26. The nature of the claims alleged by the plaintiff in his Plenary Summons dated 22^nd May 2024 (Record No. HP 2024 2629P) appear generally to relate to his dissatisfaction with Circuit Court proceedings in the Southwestern Circuit, County of Limerick bearing Record No. 2018/00901S and 6006/2024.

27. In summary (as referred to in the defendant's written submissions at page 3), the plaintiff inter alia alleges that losses incurred by Bank of Scotland (Ireland) Limited were passed onto him; that incorrect interest was applied to borrowings held by him; that he lost the opportunity to bid for the purchase of his loan at a discount; and, that Bank of Scotland (Ireland) Limited lost its right to securitisation of this mortgage owing to alleged breaches of company law.

28. From the General Indorsement of Claim in this Plenary Summons, the plaintiff's alleged claims appear to raise similar issues to that in this interlocutory application before me (i.e., as set out in the Notice of Motion dated 22^nd October 2024 referred to earlier in this judgment) and the following reliefs are sought "upon the proffering when available of a Statement of Claim Document when available and other pleadings by the Plaintiff herein":

(i) An Order staying any further proceedings in the Circuit Court regarding all that and those in Folio LK35554F, known as Dooradoyle Road, Sluggary, Limerick until the determination of the within matter;

(ii) An Order setting aside all proceedings that depend upon the Default Notification dated 28^th February 2018 for void conditions and warranties therein;

(iii) An Order stating that the Demand Notice correspondence of 28^th February 2018 upon the Mortgagors Denis Connaughton and Brid Connaughton by Start Mortgages DAC be deemed unlawful and be withdrawn.

29. The extract from the judgment of the High Court (Simons J.) in Mars Capital Finance Ireland DAC v John Temple [2023] IEHC 94, part of which was quoted by the plaintiff, must be seen in its full context and against the background facts of that appeal.

30. It involved, for example, an appeal to the High Court from the Circuit Court against an order directing the defendant to deliver up possession of specified lands to EBS Mortgage Finance. Prior to the appeal coming on for hearing, there was a transmission in the ownership of the charge where Mars Capital Finance Ireland DAC became the registered owner and an ex parte application to substitute Mars Capital as plaintiff had been made in advance of the hearing of the appeal.

31. Accordingly, the full extract of the passage referred to by Simons J. at paragraph (7), on the facts of that case, was as follows:

"(7) The only evidence currently before the court in respect of the supposed transfer of the debt is that set out in the affidavit grounding the application on 21 November 2022 to substitute Mars Capital as plaintiff in lieu of EBS Mortgage Finance. It is averred that EBS Mortgage Finance has, since the date of the Circuit Court order on 11 December 2019, sold the relevant loan, its related mortgage security and the benefit of all related matters, including the order for possession, to Mars Capital. A deed of transfer dated 30 April 2021 has been exhibited. This deed is between a number of companies within the AIB Group and EBS DAC (who are identified as the sellers) and Mars Capital Finance Ireland DAC (who is identified as the buyer). The exhibit consists of three pages containing what might be described as operative clauses. Thereafter, there are two additional pages which appear to be extracts from a schedule to the deed. These pages are heavily redacted and all that is legible is a series of headings and a single entry which references, inter alia, the name of the defendant and the address of the property the subject of the charge. There is then a column which identifies the "legal entity" as EBS Mortgage Finance Ltd. There is nothing in the first three pages of the exhibit, i.e. the operative part of the deed, which makes any reference to, still less explains the legal effect of, the schedule. It may be, but this is only speculation, that certain crucial pages have been omitted from the redacted form of the document which Mars Capital has deigned to put before the court. The limited material before the court does not establish, even on a prima facie basis, that the defendant's debt has been transferred to Mars Capital Finance Ireland DAC."

32. The plaintiff's proceedings, in terms of sequence and substance, are different to that which applied in Mars Capital Finance Ireland DAC v John Temple. As stated previously, is clear from the oral and written submissions (and Notice of Motion and Grounding Affidavit) that the plaintiff considers that he requires certain matters to be addressed, principally access to the originals of copies of documentation, some of which he has in his possession, prior to his completion and delivery of a Statement of Claim. That is the central focus of this application and in addition, the plaintiff, in this interlocutory application (and also in the Plenary Summons which has been served), seeks an order staying Circuit Court proceedings (Record No. 2018/00901S and 6006/2024) (and any other proceedings), although insufficient details are furnished as to those proceedings or their current status.

33. The acceptance by the plaintiff of the central proposition grounding this application, however, presents certain difficulties arising from the principles established in case law and, for the following reasons, I am refusing the plaintiff's interlocutory application.

34. Order 31, r. 12(6)(a) of the RSC 1986, for example, provides that a court shall not order discovery of documents unless proceeded by a written request for a discovery setting out the precise categories of documents sought and the reasons why they should be discovered, as follows:

"An order under sub-rule (2) directing any party or under rule 29 directing any other person to make discovery shall not be made unless:

(a) the applicant for same shall have previously applied by letter in writing requesting that discovery be made voluntarily:

(i) specifying the precise categories of documents in respect of which discovery is sought,

(ii) furnishing the reasons why each category of documents is required to be discovered,

(iii) where the discovery sought includes electronically stored information, specifying whether the applicant seeks the production of any documents in searchable form and if so, whether for that purpose the applicant seeks the provision of inspection and searching facilities using any information and communications technology system owned or operated by the party requested" (Underlining added).

35. The plaintiff has not sought discovery in the manner set out above under the RSC 1986.

36. Even if I was to discount this non-compliance with the rules of court, O. 31, r. 12(1) of the RSC 1986 provides that any discovery may only be ordered of documents "relating to any matter in question" in the proceedings. This generally requires the pleadings to be "closed" though in exceptional circumstances discovery may be ordered earlier. In my view, the plaintiff's rationale for seeking discovery at this juncture (which I have set out earlier in this judgment) does not comprise "exceptional circumstances" such that discovery should be directed prior to the delivery of a statement of claim: see the statement of principle in the observations of Morris J. (as he then was) in Law Society of Ireland v Rawlinson [1997] 3 I.R. 592 at p. 597 applying Gayle v Denman Picture Houses Limited [1930] K.B. 588 at p. 590 (per Scrutton J.)

37. Rather, the plaintiff's application is, in my view, premature and is captured by the general rule, the principle of which was articulated by the Supreme Court in joint cases Craddock v RTE & Kavanagh v RTE [2014] IESC 32; [2014] 1 IR 591 at paragraphs 8 and 24 and described by Fennelly J. in the following terms, first at paragraph 8 of his judgment:

"It is, of course, unusual for a court to grant an order for discovery prior to delivery of a statement of claim. The normal rule is that discovery may not be sought until after the pleadings have been closed. The rationale for that rule is that the purpose of discovery is to enable a party to have access to documents in the possession of the opposing party which are relevant to the issues in the case, but that the issues in contention between the parties will not have been identified until the pleadings have been closed".

38. The facts in Law Society of Ireland v Rawlinson involved a claim by the Law Society for damages for negligence against a firm of accountants in auditing the accounts of a solicitor in circumstances where the Law Society would be obliged to make good the loss in the solicitor's accounts. Morris J. - having regard inter alia to the complexity of the case, the statutory obligations of the Law Society, the statability of the case, the fact that the plaintiff was already in possession of such information as would enable it to prepare and deliver a statement of claim reflecting the basic ingredients of the case, the discovery sought in that case was held not to be a trawling exercise, and the case would require alteration when discovery had been made - was satisfied on the facts of that case that it fell within the category of exceptional cases and he affirmed the order of the Master of the High Court who had earlier directed the making of discovery.

39. Similarly, in Craddock v RTÉ & Kavanagh v RTÉ [2014] IESC 32; [2014] 1 IR 591, Fennelly J., at paragraph 31 of his judgment, affirmed the High Court's order of pre-statement of claim discovery in defamation actions taken by the plaintiffs regarding the broadcast of a television programme in relation to a crèche where they had been employed. Fennelly J. considered that the case qualified as being sufficiently exceptional to justify the making of an Order for discovery of the recordings shown to the parents prior to the delivery of the statement of claim as there was uncontradicted evidence on behalf of the plaintiffs that they had no means of knowing what version of the programme was shown to the parents on any of the occasions on which RTÉ had shown it to them and, crucially, on the facts of that case, there was "a sharp and obvious distinction" between written and broadcast material when it came to drafting a statement of claim.

40. In my view, Mr. Connaughton's case does not share the same features of exceptionality as that which applied in Law Society of Ireland v Rawlinson or in the joint cases of Craddock v RTE & Kavanagh v RTE.

41. Rather, in this application, the plaintiff, in addition to not complying with the rules of discovery, seeks access to the originals of documentation, some of which he has in his possession, which was clearly the position when he moved the application before me.

42. Further, whilst the plaintiff has alleged many matters, that does not necessarily mean, at this juncture, it can be stated that they constitute the 'identification' or 'crystallisation' of 'the issues' in the case as between the parties. Having regard to the claims made by the plaintiff, and referred to earlier in this judgment, the issues in contention between the parties in these proceedings have not, at this point, been sufficiently identified and require the pleadings to be closed. A discovery application, if any, must await that closure i.e., the delivery of a statement of claim (and possibly the delivery of a defence).

43. In this regard, in Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure (Third Edition, Round Hall, 2019), at page 45, the learned authors, for example, refer to Bray, The Practice and Procedure of Discovery (London: Reeves and Turner, 1885, at page 13) in making the point that the "issues in dispute between the parties are identified in the pleadings. Thus, it is generally to the pleadings that the court will look if called upon to determine a party's entitlement to discovery. As Bray put it "...Until statement of claim (in an action which requires a statement of claim) is delivered (and sometimes even until statement of defence) it is generally impossible to say whether any matters of fact will ever be in question at all, or at any rate in what precise shape they will be presented. There will therefore generally be no right to discovery (by a plaintiff and of course not by a defendant) at that stage of the action".

44. In addition, this application on behalf of the plaintiff - insofar as seeking access to the originals of documentation - in sequence and in substance - by analogy, approximates to a process similar to that used in 'production and inspection' which sequentially, when applicable, is consequential upon discovery.

45. In a discovery context, Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure (Third Edition, Round Hall, 2019), at page 170, for example, observe that the "the rules governing the production and inspection of documents remain important in a number of circumstances, and are most often invoked when a party seeks to resist producing documents for inspection (most commonly on the grounds of privilege)."

46. In this regard, in Cork Plastics (Manufacturing) v Ineos Compounds U.K. Ltd. [2011] 1 IR 492, Clarke J. (as he then was) observed as follows at p. 501:

"I adopt the proposition stated in Matthews and Malek, Disclosure (3rd ed., 2007) that the existence of an obligation not to make collateral use (or an implied undertaking to the same effect) does not prevent the disclosure, as opposed to the production, of the documents concerned. The documents are in the 'possession or power' of the party concerned. It is the production which is not, without further action, possible. In those circumstances any documents in respect of which an appropriate obligation exists should be referred to in the affidavit of discovery concerned but, if desired, an appropriate objection to production can be made." (See also Comcast International Holdings Incorporated & Ors v The Minister for Public Enterprise & Ors [2019] IEHC 720 per Allen J. at paragraph (75)).

47. Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure (Third Edition, Round Hall, 2019), at page 170 also state that "[t]he rules governing production and inspection also permit a party to seek production of documents referred to in the pleadings and in affidavits other than affidavits of discovery".

48. Further, and having regard to the matters which the plaintiff seeks to raise in this application, I make no observation in relation to any proposed future interlocutory application which may arise and be made by either the plaintiff or the defendant after the pleadings have closed, including for discovery (if any) or any proposed future application which may arise in relation to the production and inspection of documents (if any).

49. In this 'discovery application' the plaintiff also seeks an order staying 'any and all' proceedings (including, for example the Circuit Court proceedings (Record No. 2018/00901S and 6006/2024) and/or enforcement action and that the High Court direct no transfer of interest until the plaintiff has all the information required to complete his Statement of Claim. The interlocutory relief in this regard appears also to be conflated with the reliefs sought in the plenary action (referred to above). Further, apart from alleged general assertions there is insufficient information about the detail and the status of these other proceedings. The reliefs, in that regard, appear to be tagged on to the central purpose of the application, which as stated, is in effect seeking inspection of the originals of certain documents, some of which he has in his possession.

50. Accordingly, I refuse the plaintiff's application and all other ancillary reliefs which he seeks in this application.

PROPOSED ORDER

51. I shall, therefore, make an order refusing the plaintiff's application and all other ancillary reliefs sought in this application. I shall put the substantive matter back into the Non-Jury List. I understand that the defendant had also issued a motion to strike out, which motion was not heard before me. I shall adjourn that motion to travel with the substantive motion in the Non-Jury List.

52. I shall put this matter in for mention to Tuesday 29^th April 2025 at 10:15am to address the issue of costs.

CONLETH BRADLEY

17^th April 2025

[1] The reference to loan account numbers in this quoted extract from the Notice of Motion (and in this judgment) have been redacted. Some grammatical use of colons and semi-colons have been deleted or replaced by commas.

[2] This is reproduced as spelt in Notice of Motion.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Connaughton v Start Mortgages Designated Activity Company (Approved) [2025] IEHC 249 (17 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC249.html Cite as: [2025] IEHC 249

High Court of Ireland Decisions