Former Chicago Spire developer Garrett Kelleher has appealed a refusal to order Nama to make better discovery of documents for his defence of its action seeking a €46 million judgment against him over loan guarantees.
Nama insists it has provided all relevant material but Mr Kelleher says he has got no material concerning more than 60 contacts between himself and the agency or investigations by it into his assets.
He particularly wants material concerning a “critical” meeting about Dolmen shares, his counsel Edward Farrelly BL said on Friday.
National Asset Loan Management, a Nama company, wants judgment of €46 million from him 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 alleging the agency destroyed the development “out of spite”.
In opposing the NALM Commercial Court case, yet to be heard, Mr Kelleher has said, given his “extensive co-operation” with the agency over several years, he was assured he would not be pursued over the guarantees.
The Court of Appeal heard on Friday he has provided 32 witness statements for that case in support of his claims of co-operation with Nama. After getting discovery documents, he sought better discovery, complaining 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 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 the sworn averments of two employees of Nama that they had provided all relevant documents to Mr Kelleher”, he added.
On Friday, a three judge Court of Appeal heard Mr Kelleher’s appeal over that ruling. Mr Justice Michael Peart, Ms Justice Marie Whelan and Ms Justice Marie Baker have reserved judgment.
‘Nothing sinister’
In submissions for Mr Kelleher, Mr Farrelly said his client cannot understand how Nama, as 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 but for reasons “not entirely comprehensible” it maintained any material concerning those was not discoverable.
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 Nama, said it firmly rejected any argument or suggestion it had misunderstood or disapplied the rules for discovery of documents.
The claims advanced in that regard were “extraordinary”, “unprecedented” and “so wrong”, counsel said.
All of this had to be seen in a context where the case, which was not trivial, had been going on since 2014, counsel added.
On the claims about material concerning 62 contacts, Mr Kelleher has only identified one meeting relevant to the issues in the case, he said. There were “oodles” of other meetings not relevant to this case and the reference to 62 contacts was therefore irrelevant and did not show Nama had misunderstood its discovery obligations.
There was “nothing sinister” as appeared to be inferred.
In his reply, Mr Farrelly said every meeting with Nama was about co-operation and was therefore discoverable.
