Tanager DAC & Anor v Doyle & Anor (Approved)

Factual and Procedural Background

The Defendants/Appellants appealed a Possession Order granted to the Plaintiffs/Respondents by the Circuit Court on 27 January 2020. The Possession Order concerned possession of a property mortgaged by the Defendants/Appellants, originally held by Bank of Scotland (Ireland) Limited and subsequently transferred to Company A (the first named Plaintiff). The proceedings were initiated by Company A as mortgagee due to arrears dating back to 2010. The Defendants/Appellants were legally represented during the Circuit Court proceedings, challenged the quantification of arrears, claimed the loan was a tracker mortgage, and sought to strike out the proceedings as an abuse of process; however, they did not seek discovery at that time. The Circuit Court found the Plaintiffs/Respondents’ evidence sufficient and dismissed the Defendants/Appellants’ motion, granting possession to Company A.

Following the Possession Order, Company A transferred its rights in the loan and security to Company B (the second named Plaintiff), who was added as co-plaintiff to the appeal proceedings. The Defendants/Appellants, representing themselves, sought discovery of documents in advance of their appeal hearing in the High Court, which is the subject of the present judgment. The substantive appeal remains pending.

Legal Issues Presented

1. Whether the Defendants/Appellants are entitled to seek discovery of documents prior to the hearing of their appeal against the Possession Order made on a summary basis in the Circuit Court.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework governing appeals from the Circuit Court to the High Court under Section 37 of the Courts of Justice Act 1936 and Order 61 Rule 8 of the Rules of the Superior Courts. It held that the appeal must be conducted by way of a de novo rehearing based solely on the evidence adduced before the Circuit Court unless leave is granted to adduce fresh evidence. The appellants had not sought or obtained such leave.

The court noted that the original proceedings were summary in nature, with no pleadings to frame discovery requests. Discovery is generally unavailable in summary proceedings unless the case proceeds to plenary hearing with pleadings exchanged. The appellants’ request for discovery was extensive and premature, seeking documents prior to the issuance of a statement of claim or any plenary hearing.

The court emphasized that discovery cannot be used to identify new causes of action or defences but is intended to facilitate litigation based on existing pleadings. It found no prejudice to the appellants in refusing discovery at this stage, as they retain the ability to challenge the respondents’ evidence and establish an arguable defence to trigger a plenary hearing where discovery might then be appropriate.

Accordingly, the court refused the discovery application, holding that the appeal should proceed on the evidence already before the Circuit Court, consistent with statutory requirements and established case law.

Holding and Implications

The court DISMISSED the appellants' application for discovery prior to the hearing of their appeal.

The direct effect is that the appellants must proceed with their appeal based on the evidence presented in the Circuit Court without additional documentation obtained through discovery. Should the High Court find an arguable defence and remit the case to plenary hearing, discovery may then be considered appropriate in accordance with pleadings exchanged at that stage. No new precedent was established; the decision reinforces the established principle that discovery is generally not available in summary proceedings prior to plenary hearing or the hearing of an appeal conducted by way of statutory rehearing.