Neutral Citation Number:  IEHC 242
THE HIGH COURT
[2011 No. 2791 S]
ALLIED IRISH BANK PLC
GEORGE TRACEY (No.2)
JUDGMENT of Mr. Justice Hogan delivered on the 21st March, 2013
1. One of the many unpleasant features of what the country has had to endure since the collapse of the property sector in 2008 is the extent to which ties of friendship and family bonds have been placed under enormous strain as a result of the ensuing financial crisis. This is one such case and a falling out between friends has given rise the present application which is one of some novelty and is, indeed, of some considerable importance.
2. Prior to the events giving rise to the present application, the defendant in the present proceedings, Mr. George Tracey, and the applicant, Mr. David Agar, were not only business partners in the property market but were also extremely close friends. The acute downturn in the construction and property sector has evidently put that friendship to the test.
3. In a judgment delivered in these (and related) proceedings on 12th March 2013 I granted summary judgment in favour of AIB (and a subsidiary company) for sums close to €18m. In the course of defending those proceedings Mr. Tracey contended that AIB had mismanaged his affairs, not least by allowing portions of loans supposedly drawn down by various companies jointly owned and controlled by Mr. Tracey and Mr. Agar to be misappropriated by Mr. Agar. Although not directly adjudicating on these contentions, I nonetheless found that (save in one respect) AIB was entitled to summary judgment.
4. During the hearing itself (which lasted some three days) Mr. Agar’s legal team maintained a watching brief from the second day onwards, although he was not, of course, a party to the litigation. At the close of the hearing Mr. Agar’s legal representative sought a copy of the relevant affidavits which sought to directly implicate their client in a course of conduct, which, if true, would amount to a grave breach of fiduciary duty amounting to the fraudulent misappropriation of funds. It is important to state that Mr. Agar emphatically rejects these allegations.
5. I should also interpose here to say that during the hearing I expressed concern that these allegations were being ventilated in open court in circumstances where Mr. Agar had no formal opportunity to respond or to have his interests formally represented Indeed, I took care to ensure that Mr. Agar’s name was not directly mentioned in the written judgment which I delivered.
6. At all events, Mr. Tracey’s legal representatives indicated that their client would not consent to the release of these affidavits to Mr. Agar. AIB indicated that, for its part, tit would take a neutral position and would abide by the order of the court. I accordingly directed that if Mr. Agar wished to seek access to these affidavits, he must apply by motion on notice to Mr. Tracey. This was duly done and the motion heard in the aftermath of the main judgment granting summary judgment to AIB. This is now my judgment on this question.
7. It is important to note at the outset that the affidavits in question were in effect fully opened to the Court. While the former practice whereby counsel formally read out all the affidavits which had been filed in the proceedings into the record from beginning to end has largely ceased, nevertheless frequent reference was made in open court to the relevant passages from Mr. Tracey’s affidavits which sought to implicate Mr. Agar and some, at least, of the relevant passages were opened either in full or in part. The present case is accordingly one where the relevant documents at issue have been fully opened in open court. As we shall shortly see, this is a very important detail, because different consideration might well obtain, for example, in the case of a document which lay hidden in the discovery documents and to which no reference - or, at least, no reference of any substance - was made.
Access to documents generated for the purposes of litigation
9. The decision of the Supreme Court in Breslin v. McKenna  IESC 43,  1 IR 298 is perhaps the closest case in point. Here the plaintiffs sought access by way of discovery to materials contained in the book of evidence furnished to the defendants for the purposes of their trial as accused before the Special Criminal Court so that they (i.e., the plaintiff) could use that material for the purposes of a civil action in Northern Ireland for damages arising out of the same incident.
10. In the High Court Gilligan J. found that the defendants qua accused held the documentation on foot of an implied undertaking, so that the permission of the Court would be not necessary for the use of the documents for some other collateral purpose.
11. In his judgment for the Supreme Court, Geoghegan J. observed ( 1 IR 298, 308) :-
Whether permission should be given for the release of the documents?
14. In my view, it clearly would be so appropriate. Article 40.3.2 of the Constitution guarantees each citizen the right to his or her good name. That right would be indeed a hollow one if serious allegations could be made publicly in open court directly against another citizen - even if made for the purposes of defending other litigation brought by a third party - if the person against whom the allegation is made had no right to even learn of the precise nature of the allegations which were so publicly made.
15. In de Búrca v. Wicklow County Council  IEHC 54 the applicant, a local councillor, made complaints regarding the ethical behaviour of another councillor. As a result, a formal investigation took place pursuant to the provisions of Part XV of the Local Government Act 2001, which investigation was actually critical of her. She then (successfully) sought to challenge that report on the ground that the investigators had misconstrued and misapplied the relevant provisions of the 2001 Act. The Council had, however, argued that that the issue was non-justiciable by reason of the fact that the publication of the report had not actually infringed her legal rights.
16. Hedigan J. rejected that argument in the following terms:-
The fact that the criticisms contained in the report now form part of the public record of the State serves only to amplify the ramifications for her, in particular should she wish to continue her career in public office. To allow such undue criticism of a conscientious local councillor to go unconsidered on the basis that it is of no consequence, or that it has no implications, would in my view involve a kind of legal fiction with potentially far-reaching consequences for the public service as a whole. In my view, therefore, the report did have material implications for the applicant.”
18. In this context I would reject the submission advanced by Mr. Tracey to the effect that the release of the affidavits would serve no useful purpose because Mr. Agar could have no remedy under the Defamation Act 2009 by reason of the established immunity of parties, witnesses and judicial pronouncements from suit and the preservation of those immunities by s. 17(1) and s. 17(2)(e), (f) and (g) of the 2009 Act. It is unnecessary for present purposes to express any view on this topic, because even if it were so that the immunity was absolute in all circumstances, this would not detract in the least from the fact that the protection of Mr. Agar’s Article 40.3.2 right to a good name requires - at a minimum - that he is entitled to at least know the nature of the allegation.
19. One can easily conjecture circumstances in which a person in Mr. Agar’s position might wish to take practical steps to protect that right. Thus, for example, correspondence might be exchanged requesting Mr. Tracey to withdraw the allegations. Alternatively, Mr. Agar might wish to correspond with AIB in the matter. Any such steps would, of course, be entirely a matter for Mr. Agar to consider and to determine.
20. In these circumstances, it would be entirely appropriate for this Court to sanction the release of the affidavits, as the effective protection of Mr. Agar’s Article 40.3.2 right to a good name demands no less.
Whether permission is, in any event, required?
22. The open administration of justice is, of course, a vital safeguard in any free and democratic society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse.
23. In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. Entirely different considerations would naturally arise in respect of material which was not opened in open court or which was protected by the in camera rules or by reporting restrictions imposed, for example, pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008