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Cite as: [1997] IEHC 19

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Fagan v. Burgess [1997] IEHC 19 (28th January, 1997)

THE HIGH COURT

1995 1844p BETWEEN

STEPHEN FAGAN

PLAINTIFF

AND

RORY BURGESS, JOAN BURGESS, DORCORN DEVELOPMENTS LIMITED,

HONEYBRIDGE LIMITED AND ROSEMARY RYAN PRACTISING UNDER THE STYLE AND TITLE OF ROSEMARY RYAN AND COMPANY SOLICITORS

DEFENDANTS

Judgment of Mr. Justice Barron delivered the 28th day of January, 1997 .

1. This action, insofar as it relates to the first four Defendants, relates to the beneficial ownership of shares in the Third named Defendant. As regards the Fifth named Defendant, it is a claim for damages for wrongful disclosure of confidential and/or privileged information. The Statement of Claim refers to two specific matters:-

(1) that privileged correspondence was included in an Affidavit sworn by the Fifth named Defendant in other proceedings in which she was acting as his Solicitor in which Allied Irish Banks Plc. was plaintiff and the Plaintiff, May Malone and Greendale Developments Limited, were defendants;

(2) that in relation to the present proceedings she used confidential information given by the Plaintiff to her in relation to his present claim in order to advise the transfer of property from the Third named Defendant to the Fourth named Defendant. The Plaintiff has also claimed that other cases of wrongful disclosure would become apparent following discovery of documents.

2. The hearing of the present application focused entirely on Notices for Particulars and replies thereto in relation to improper disclosure. The case of the Fifth named Defendant, in essence, was that no disclosure other than in the A.I.B. proceedings had been shown and that any claim in relation to such allegation should be litigated separately. It was also submitted that voluntary discovery had been offered and refused, and that no application for discovery had been made in the proceedings.

3. From the documentation, it is clear that apart from the A.I.B. proceedings, the only allegation is the second one contained in the Statement of Claim. While, it appeared originally to be contended that further disclosures would become apparent following discovery, the latest replies to Notices for Particulars refer to "in the event" of any such becoming apparent. Accordingly, the claim under this heading relates solely to the disclosure of how the Plaintiff intends to prove his case.

4. The Fifth named Defendant submits that in fact there was no valid claim since answers to particulars are contradictory. I propose to set out the relevant material. By a letter for particulars dated the 10th May, 1995 written on behalf of the First and Second named Defendants, the Plaintiff was asked inter alia:-

"7. Please state whether the Plaintiff contends that the Fifth named Defendant was retained solely by him in his personal capacity. If the Fifth named Defendant was retained by the Plaintiff on behalf of any other party, please identify same."

5. The reply to that question given on the 23rd June, 1995 was as follows:-

"The Plaintiff retained the Fifth named Defendant in his personal capacity. The Plaintiff's wife also retained the Fifth named Defendant, Greendale Developments Limited also retained the Fifth named Defendant. Dorcorn Developments also retained the Fifth named Defendant. The Plaintiff and the First named Defendant jointly retained the Fifth named Defendant. The Plaintiff on occasions was accustomed to discussing with the Fifth named Defendant matters in which she was retained, not by the Plaintiff, but by the other specified parties."

6. On the 20th July, 1995 the same Defendants sought further particulars of this answer as follows:-

"7. The Plaintiff has identified the parties by whom the Fifth named Defendant was retained. The Plaintiff states that he was accustomed to discussing with the Fifth named Defendant matters in which he was retained, not by the Plaintiff, but by the other parties. Please identify which of the other parties specified the Plaintiff is referring to and give particulars of the matters referred to if same relate to Greendale Developments Limited, the First and the Third named Defendants."

7. The Plaintiff replied on the 1st November, 1995 as follows:-

"7. The Plaintiff discussed with the Fifth named Defendant no matter concerning Greendale Developments Limited, the First named Defendant and the Third named Defendant."

8. On the basis of these questions and answers, the Fifth named Defendant submits that there is no claim to answer. In an Affidavit sworn by the Plaintiff in reply to one sworn by the Fifth named Defendant on the 3rd October, 1996, the Plaintiff explains his answer of the 1st November, 1995. So far as it is material, these averments are contained in paragraph 4 of his Affidavit, the date of swearing of which is left blank, as follows:-

"My understanding of this query (that contained in the letter dated 20th July, 1995) was that I was being asked whether I had discussed with the Fifth named Defendant any matters concerning Greendale Developments Limited, the First named Defendant and the Third named Defendant jointly, and the reply thereto was entirely correct, i.e, that I had discussed with the Fifth named Defendant "no matter" concerning these parties jointly. No transaction ever took place or was envisaged in which Greendale Developments Limited, the First named Defendant and the Third named Defendant jointly, had an input.

However, it would not be correct to infer from No. 7 of the replies to the notices for further and better particulars that I never discussed with the Fifth named Defendant any matter concerning Greendale Developments Limited, the First named Defendant or the Third named Defendant, I would have discussed the affairs of these various parties with her on separate occasions to derive such an inference would be entirely inconsistent with, inter alia, the specific allegation in the Statement of Claim herein......."

(The underlining is that of the Plaintiff in his Affidavit.)

9. No allegation of disclosure other than that contained in the Statement of Claim is set out in this Affidavit.

10. These latter averments do not assist the Plaintiff. They are merely an admission that in his answer of the 1st November, 1995, he was not being candid. Nevertheless, there are two basis of claim against the Fifth named Defendant, one which has no relationship to the claim against the other four Defendants and one which has.

11. I do not propose to strike out these claims. It is a matter for the trial Judge as to the manner in which and the time at which they should be heard. Nor do I propose to strike out the pleadings for failure to reply adequately to the Notices for Particulars. It is clear that the Plaintiff cannot go beyond the Statement of Claim. He will be confined to these two allegations.

12. Accordingly no Order will be made on the Motions herein.