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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Maye -v- Adams & ors [2015] IEHC 530 (31 July 2015)
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Cite as: [2015] IEHC 530
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Judgment
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Neutral Citation [2015] IEHC 530 THE HIGH COURT [2011 No. 387P] BETWEEN ANNE MAYE PLAINTIFF AND
ALAN ADAMS, DENNIS AGNEW, JULIAN BOSGRIDGE, FEARGAL P BRENNAN, GERARD BUTLER, GARY BYRNE, THOMAS G BYRNE, AILEEN B COSGROVE, DARREN N DALY, OLIVE A DOYLE, MARY DUNNE, RONAN A EGAN, CATHERINE M GUY, SIAN L HARPER, DUNCAN INVERARITY, KIERAN J J JOHNSTON, MARK N KAVANAGH, SINEAD M KEARNEY, ELAINE P KELLY, MICHAEL KENNEDY, ROSEMARY KIRWAN, DEIRDRE M MCBENNET, PAUL MCGENNIS, DAVID F MACSWEENEY, JAMES F MORAN, DANIEL M MURPHY, ENDA NEWTOWN, MICHELLE NI LONGAIN, LOUISE O’DONOVAN, FIONA O’NEILL, EILEEN PREDERGAST, COLIN SAINSBURY, GAVIN N A SIMONS, GAVIN P SMYTH, EOGHAN P WALLACE, SEAN WALLACE, MICHAEL D WALSH, HELEN A WILKINSON, PRACTICING UNDER THE STYLE AND TITLE OF BYRNE WALLACE SOLICITORS FORMERLY KNOWN AS BCM HANBY WALLACE SOLICITORS AND KIERAN DUGGAN DEFENDANTS JUDGMENT of Ms. Justice Kennedy delivered on 31st day of July, 2015 Introduction/Background 2. The within proceedings issued by way of plenary summons on 17th January, 2011 against Byrne Wallace, wherein the plaintiff’s claim was primarily for indemnification in respect of any cost, expenses, loss, liabilities, claims or payments arising from an agreement dated 7th August, 2008 known as the “Costello Agreement”. Proceedings were instituted by NAMA against the plaintiff in 2013 and the settlement agreement was made in the context of those proceedings. In 2014, a new set of proceedings was instituted by the plaintiff against Byrne Wallace and Kieran Duggan (a consultant retained by Byrne Wallace). The 2011 proceedings were consolidated with the 2014 proceedings by an order made by Gilligan J. on 11th December, 2014. The plaintiff’s claim, in the consolidated proceedings, expanded considerably from that which was made in the 2011 proceedings. The plaintiff pleads, in the consolidated statement of claim, that she had no option but to compromise the NAMA proceedings by way of the NAMA settlement agreement. She pleads that in so far as she incurred any liability to NAMA, and as a consequence, had to settle any such liability; this, she pleads, is a matter for which the defendants and/or Mr. Duggan are responsible. She has, in the consolidated statement of claim, particularised her claim in this respect arising from the NAMA settlement agreement of approximately €37.5 million (including legal costs) with additional costs, expenses and tax liabilities “unascertained and ongoing”. 3. By letter dated April 17th, 2015 solicitors for Byrne Wallace (Messrs. Ronan Daly Jermyn Solicitors) requested production of the settlement agreement in accordance with Order 31, Rule 16 of the Rules of the Superior Courts, 1986 (as amended). A notice to produce was delivered on 28th April, 2015 wherein the defendant sought inspection of certain documents pleaded in the statement of claim, including the settlement agreement. 4. On May 14th, 2015 the plaintiff’s solicitors (Matheson Solicitors) provided a redacted copy of the settlement agreement, explaining that portions of the agreement were redacted, which contained information which was irrelevant and confidential. These documents were exhibited in the affidavit of Mr. Jamie Olden, solicitor with Ronan Daly Jermyn. An offer of inspection was extended to the solicitors and counsel for the defendant. The solicitors for Byrne Wallace requested an unredacted copy thereof, or in the alternative, to withdraw so much of the plaintiff’s claim that derived from the settlement agreement. Three offers of inspection were made, which were agreed to on 21st July, 2015. 5. In June, 2013 NAMA instituted proceedings against the plaintiff, as executrix of the estate of Mr. Liam Maye, deceased, seeking an order revoking the grant of probate and granting administration of the estate to Mr. McAteer of Grant Thornton. The plaintiff agreed to step down as executrix and consented to the relief sought against her. Party Submissions 7. The plaintiff asserts that, if it were not for the advice she received from Byrne Wallace—which she contends was negligent— she would not have placed the relevant assets at risk. Such a risk, the plaintiff states, she sought to mitigate by entering into the settlement agreement. It is, in the context of assessing the reasonableness of the mitigation of her loss, that the defendant seeks the information which is the subject of these proceedings. 8. The plaintiff, by way of an affidavit sworn on her behalf by her solicitor, acknowledges that Byrne Wallace is entitled to inspection of the settlement agreement, but asserts that she is entitled to redact parts thereof on the grounds that the redacted material is not necessary for disposing fairly of the proceedings, or for saving costs, and that the redacted material is confidential. 9. The issue therefore, in this motion, is whether the defendants (hereinafter Byrne Wallace), are entitled to inspection of an unredacted copy of the settlement agreement. There has been extensive correspondence between the parties on the issue of the redacted materials and the plaintiff relies on three grounds to resist disclosing the settlement agreement in its unredacted form. These are:-
b. That the redacted material includes confidential information in respect of co-obligors of the plaintiff, who are not party to the proceedings; clauses 8.9, 14 and 15.3; and c. That the redacted material includes confidential information relating to the agreement concluded between the plaintiff and NAMA in relation to the conduct of these proceedings and the application of any proceeds; clause 13.
b. That reference should be made to the ‘reconciliation figure’, rather than the actual figure referred to in clauses 6.3. and 6.5. The Relevant Rules of Court 11. Order 31, Rule 15 provides:-
(2) An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs." 14. Order 31, Rule 18 is clearly discretionary in its terms and the jurisprudence confirms that the court has a broad discretion, which such discretion being exercised on the facts of any given case. It is also clear, from an analysis of the jurisprudence, and, on reading Order 31, Rule 18(2), that an order for inspection will not be made, unless the court is satisfied that it is necessary, either for disposing fairly of the cause or matter, or for saving costs. This was confirmed recently by Costello J. in Lowry v Mr. Justice Moriarty [2014] IEHC 602. The courts may, and have taken, steps to address the loss of confidentiality by redacting portions of a document or restricting disclosure in an appropriate manner. Necessary for Disposing Fairly of the Cause or Matter
3. If no element of confidentiality (or of course, public interest immunity - but that only becomes relevant on the cross appeal) is asserted in the documents, routinely they will be produced for inspection without the need for a rule 13 hearing on the issue of necessity. As Lord Scarman said in Air Canada v Secretary of State for Trade [1983] 2 A.C. 394 at page 444:- “It may well be that were there is no claim of confidentiality or public interest immunity or any objection on the ground of privilege, the courts follow a relaxed practice, allowing production on the basis of relevance. This is sensible, bearing in mind the extended meaning given to relevance in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co. (1882) 11 QBD 55.’ 4. If, however, confidentiality is asserted or any other ground of objection arises, rule 13 assumes relevance and it becomes necessary to decide whether inspection is necessary for the fair disposal of the action. As Lord Scarman had earlier said in Science Research Council v Nasse [1980] AC 1028 at pg.1089:- 'The only complicating factor is the confidential nature of the relevant documents in the possession of the party from whom redress is sought. The production of some of these may be necessary for doing justice to the applicants’ case. If production is necessary, they must be produced. The fact of confidence however militates against general orders for discovery and does impose upon the Tribunal the duty of satisfying itself, by inspection if need be, that justice requires disclosure.' 5. Disclosure will be necessary if: (a) it will give “litigious advantage” to the party seeking inspection, Taylor v Anderton [1995] 1 W.L.R. 447 at p.462 and (b) the information sought is not otherwise available to that party by, for example, admissions, or some other form of proceeding (e.g. interrogatories) or from some other source (e.g. Dolling-Baker v Merrett [1990] 1 W.L.R. 1205 at p.1214) and (c) such order for disclosure would not be oppressive, perhaps because of the sheer volume of the documents (CEG Science Research Council v Nasse [1980] AC 1028 at pg.1076 per Lord Edmond - Davies). 6. If a prima facia case is made out for disclosure, then as several of the speeches in Science Research Council v Nasse make plain, the court will first inspect the documents: (a) to ensure that inspection is indeed necessary (that very safeguard of itself makes the court generally readier to accept the threshold test for disclosure is satisfied) and (b) assuming it is so, to see if the loss of confidentiality involved can be mitigated by: (i) blanking out parts of the documents and/or (ii) limiting the disclosure to legal advisers only… those basic principles I have sought to distil from all of the many authorities which are placed before us. Several passages in the various judgments are relevant; it would however, be wearisome and, I think, ultimately unproductive to cite them…”.
b. In circumstances were the plaintiff has objected to the production of an unredacted copy of the settlement agreement on the grounds of confidentiality and irrelevance, it is required that the court decide whether inspection is necessary for the fair disposal of the action. c. Disclosure will be necessary, if it will give a litigious advantage to the party seeking inspection and the material is not otherwise available to the party seeking inspection. d. The reference to litigious advantage must be understood as relating in someway to an issue between the parties in the substantive proceedings. In order for inspection or disclosure of the redacted information to be appropriate, the redacted material must be relevant by reference to a pleaded issue in the case. e. If a prima facie case is made out for disclosure; then the court will first inspect the documents to ensure that inspection is indeed necessary.
g. If the redacted information is relevant, then confidentiality does not, of itself, provide a barrier to its disclosure. h. The court is required to exercise some balance between the likely materiality of the redacted information to the issues which are anticipated as being likely to arise in the proceedings, and the degree of confidentiality attaching to the relevant materials. i. The confidence of third parties will be given added weight.
(2) If the documents are relevant, then confidentiality (as opposed to privilege) does not, of itself, provide a barrier to their disclosure. (3) The court is required to exercise some balance between the likely materiality of the documents concerned to the issues which are anticipated as being likely to arise in the proceedings, and the degree of confidentiality attaching to the relevant materials. In that context, the confidence of third parties may be given added weight…. (4) In attempting to balance those rights, the court can seek to fashion an appropriate order designed to meet the facts of the individual case so as to protect both the legitimate interests of the party seeking disclosure to ensure that all relevant materials potentially influential on the result of the case are before the court and, to the extent that it may be proportionate, the legitimate interests of confidence asserted...”. Decision Information Relating to the Plaintiff’s Personal Finances Co-Obligors/ Co-Borrowers 22. I will order the inspection of the information at clauses 8.9, 14.1, 14.2 and 15.3, with the condition that the names of the co-obligors should not be mentioned on the pleadings, or in open court, but may be referred to as ‘AB’ and so on, or in some other manner to be agreed between the parties. Clauses 13.4, 13.5, 13.9 and 13.10 24. Mr. McGrath, S.C. objects to the inspection of these clauses. He contends that they are irrelevant, that Order 31, Rule 15 does not have application and that such would confer an unfair litigious advantage on the defendant. Mr. McGrath, S.C. further contends that the defendant has conflated litigious advantage— in context of inspection— and unfair litigation advantage and, he argues that they are two very different concepts. Relevance 26. Clarke J. was speaking in a different context in Thema than in the present case, where there is no issue in relation to a third party funder. In Thema, the defendant argued that the court had jurisdiction to award costs against a third party funder and, therefore, the court had an ancillary jurisdiction to require the disclosure of the identity of the funders. Clarke J. was of the view that in order to give effect to the costs jurisdiction, the court had power to require the disclosure of the identity of third party funders prior to the proceedings, but that post-judgment disclosure would be equally effective and, that earlier disclosure would confer an unnecessary and disproportionate litigation advantage on the other party. 27. In Persona Digital Telephony Ltd. v Minister for Public Enterprise [2015] IEHC 457, the defendants sought disclosure of the litigation funding arrangement. The plaintiff objected on the grounds that the documents were confidential and privileged and that if disclosed to the defendants, would confer on them an unfair and disproportionate tactical advantage. Disclosure was ordered but was limited. 28. The defendant contends that the matters in clause 13 (as referenced by Ms. Daly), are clearly relevant to the proceedings. It is submitted that provisions relating to the application of proceeds must be relevant to the question whether the settlement agreement was appropriate and/or operated to mitigate the plaintiff’s losses. 29. On analysis of the jurisprudence, the courts have found that the disclosure of third party funding information, or of a litigation funding arrangement, is bound to confer a litigation advantage. Where the disclosure may confer an unfair and disproportionate litigation advantage, the basis of the need for production of the information for the fair disposal of the issue must be carefully examined. Litigious advantage must, in my view, relate to an issue between the parties and cannot mean giving a party knowledge of the other party’s litigation tactics. 30. Byrne Wallace contend that inspection of these clauses is necessary to enable them to engage in an informed assessment of the plaintiff’s case that the settlement agreement, in its terms, represent appropriate action on her part. 31. Ms. Daly deposes at para. 41(c) that the question for determination will be whether it was reasonable for the plaintiff to enter into the settlement agreement:-
32. Applying the relevant authorities, with particular emphasis on Cooper Flynn v RTE [2000] 3 I.R. 344, where Kelly J. applied Taylor v Anderton [1995] 1 W.L.R. 447, it is clearly stated that production and inspection will be necessary if disclosure of the material would provide the requesting party with a litigious advantage and where the information is not otherwise available. Order 13, rule 15 applies to the interlocutory stages of proceedings and therefore applies to the present application, in that this application concerns the fair disposal of a stage or cause of the matter. This is an application concerning the substantive issues and is not external to the substantive issues in the case in any meaningful sense. Decision on Clause 13 Clauses 13.9 and 13.10 35. The plaintiff pleads at para. 102, that she had no option but to compromise the proceedings instituted by NAMA by way of the settlement agreement, that “the said compromise represented the best means reasonably open to the plaintiff to mitigate her loss”. In effect, the plaintiff pleads, that insofar as she incurred any liability with NAMA and had to settle that liability, Byrne Wallace and Mr. Duggan are responsible for that state of affairs. She particularises her claim arising from the agreement at para. 113 of the consolidated statement of claim. The plaintiff particularised her claim arising from the settlement agreement at €37,094,268 with “costs and expenses, including tax liabilities, incurred in the implementation of compromise concluded with NAMA - unascertained and continuing”. 36. The plaintiff pleads that this compromise represented the best means reasonably open to her to mitigate her loss and Byrne Wallace wish to interrogate that plea. In order to do so, it is contended that the defendant needs sight of the entire unredacted material. 37. Applying the legal principles, and having scrutinised the clauses, I conclude that these clauses are relevant to the pleaded case and that inspection is necessary to fairly dispose of the cause/matter. 38. In coming to this conclusion, I am satisfied that the material is not otherwise available and to refuse the order regarding these clauses would be to the litigious disadvantage of the party seeking the inspection. The Order 40. To mitigate any loss of confidentiality regarding the co-obligors, the names of each should not be used in the pleadings, or in court, and reference can be made to them by the initials 'AB' and so forth, or as agreed between the parties. 41. Such disclosure is subject to an implied undertaking that the material will not be used for any collateral purpose, but will be confined for use in the proper conduct of these proceedings. |