Acorn Wave Ltd v O'Riain

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 21 July 2023
• Neutral Citation: [2023] IEHC 448
• Court: High Court
• Docket Number: [RECORD NO. 2021/4517 P]

Between:

Acorn Wave Limited

Plaintiff

and

Tomás Ó Riain

Defendant

[2023] IEHC 448

[RECORD NO. 2021/4517 P]

THE HIGH COURT

JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 21 ^st day of July, 2023

INTRODUCTION

1 . In this application, the Plaintiff seeks to strike out parts of an affidavit sworn on behalf of the Defendant. The affidavit in question was sworn to ground an application for security for costs. The strike out application is made on the basis that material protected by “ without prejudice” privilege is disclosed, specifically, the contents of an email dated the 1 ^st of May, 2020. Of note, the material in question relates to communications which were not expressed to be “ without prejudice” at the time they were sent, although later correspondence was expressly conditioned as “ without prejudice”. Furthermore, the Plaintiff has itself referred to the contents of this email communication in subsequent open correspondence as between solicitors.

BACKGROUND

2 . The Plaintiff was engaged by the GAA from 2019 in relation to changes it wished to achieve in respect of its ticketing services. At that time the GAA was contracted with Tickets.ie as an external service provider and was interested in bringing ticketing functions internally within the operations of the GAA. Consequent upon initial engagement with the Plaintiff, the GAA explored with Tickets.ie the possibility of acquiring rights in the ticketing software then in use with a view to engaging the Plaintiff for the purpose of carrying out the ticketing function internally. In tandem with the GAA's efforts to acquire rights in respect of the existing ticketing software, the Plaintiff provided services in relation to the development of the proposed new internal ticketing service.

3 . While it is common case that the Plaintiff was retained by the GAA to carry out certain work in anticipation of the intended transfer of function, the parties are not agreed as to the terms upon which this engagement occurred. In very broad terms the Plaintiff contends that it was engaged on a multiyear contract to provide the ticketing services whereas the GAA maintain that the agreement was in the nature of a retainer agreement and an agreement to provide testing and preparatory work and to make available resources (human and technical) to allow for transfer in the event that an agreement was achieved with Ticketmaster.ie. It is the GAA's position, however, that the entry into a contract of the nature contended for by the Plaintiff was wholly dependent on the conclusion of a deal with Tickets.ie in the first instance, which ultimately could not be achieved. The GAA contend that it was at all times clear that engagement of the Plaintiff in respect of the operation of a new ticketing service was entirely dependent on agreement with Tickets.ie to secure the existing software platform and license.

4 . When it became clear that a deal could not be agreed with Tickets.ie for the purchase of rights in the software it used for the GAA ticketing, the GAA advised the Plaintiff in or around January, 2020 of its intention to initiate a tender process to engage with prospective ticketing service providers after the conclusion of its existing contractual arrangements with Tickets.ie in December, 2020. The Plaintiff was invited to participate in this tender process. All the while the Plaintiff maintains that it continued to carry out services for the GAA. The contractual basis for this work and the extent to which this work occurred and/or was authorised by the GAA are issues in the proceedings.

5 . Matters came to a head on the 24 ^th of April, 2020 when the Plaintiff emailed to say that it proposed to invoice for Quarter 1 of 2020. In this email the Plaintiff appeared to envisage an ongoing relationship between the Plaintiff and the GAA without reference to the failure on the part of the GAA to acquire rights in the Tickets.ie software and an intervening tender process involving other parties. This email presented an understanding of the then contractual relationship between the Plaintiff and the GAA, which the GAA disputes. Following receipt of this email it appears that the Plaintiff was advised on the 27 ^th of April, 2020, by telephone, that the GAA had preferred the submission of a third party in the tender process. The Plaintiff was asked to vouch the expenditure incurred in respect of an advance received by it from the GAA in circumstances where a contract was not being offered going forward.

6 . By email dated the 29 ^th of April, 2020, Mr. Murphy of the Plaintiff wrote to Mr. Mulryan of the GAA in relation to a purported multi-year contract and works done outside the scope of the so-called “ retainer agreement”. By email in response on the 30 ^th of April, 2020, Mr. Mulryan addressed what he considered to be misconceptions contained in the email of the 29 ^th of April, 2020 and requested a reconciliation of the costs incurred between January, 2020 and April, 2020 and the sum of €175,000 paid on the 11 ^th of December, 2019.

7 . In response, in an email which is at the heart of the application before me, Mr. Waldron of the Plaintiff wrote to Mr. Mulryan of the Defendant on the 1 ^st of May, 2020. It is clear from this email that the parties were not in agreement as to the contractual basis upon which services had been provided and a minimum payment was identified as being the sum acceptable in respect of what was characterised on behalf of the Plaintiff as an early agreed termination of the contract. Following on from this email of the 1 ^st of May, 2020, the question of continued engagement on a “ without prejudice” basis was raised in a telephone call in the second week of May, 2020. The parties were not agreed as to whether this telephone conversation occurred on the 11 ^th or 14 ^th of May, 2020. By email dated the 18 ^th of May, 2020, Mr. Mulryan on behalf of the GAA wrote with reference to an email sent on the 12 ^th of May, 2020 in the following terms:

“In response to your original email below, I would just like to re-confirm that our call last Monday and all subsequent and related correspondence is and remains on a “without prejudice” basis, at your request. You did not reference this in your email below but the same principle applies to it as well as this email.”

8 . The reference in the email of the 18 ^th of May, 2020 to the “ original email below” was to the email of the 12 ^th of May, 2020. Insofar as there is a divergence in evidence as to when the conversation raising “ without prejudice” privilege for the first time took place, the reference to a conversation “ last Monday” dates the without prejudice telephone call to Monday, 11 ^th of May, 2020. I consider it most likely this conversation occurred on the 11 ^th of May, 2020. This is also consistent with subsequent email correspondence which through the language used gives some temporal indications in relation to when “ without prejudice” privilege was invoked. In an email in response to the email of the 12 ^th of May, 2020 sent on the 19 ^th of May, 2020, Mr. Waldron of the Plaintiff states:

“it would be much preferable to discuss this in the open manner, again without prejudice, as we did last week.”

9 . It seems clear from the foregoing, that the parties actively engaged in discussions on an agreed “ without prejudice” between the 12 ^th and 19 ^th of May, 2020. Indeed, I do not understand there to be any dispute in respect of the privilege applying to negotiations during this period.

10 . Thereafter, there was further correspondence on an open basis through solicitors in June, 2020 in which the Defendant sought repayment of a sum of €120,000 in respect of unvouched costs from the advance payment of €175,000 made on the 11 ^th of December, 2019. Importantly, the Plaintiff's solicitors referred to the contents of email dated 1 ^st of May, 2020 over which it now asserts privilege in its letter before action which issued on the 7 ^th of August, 2020 in framing the within claim.

EVIDENCE

11 . Affidavits filed in respect of the Motion include Affidavits of Mark Waldron sworn the 12 ^th of January, 2023 and the 24 ^th of February, 2023 on behalf of the Plaintiff; Replying Affidavits of Mr. Ger Mulryan sworn the 30 ^th of January, 2023 and the 3 ^rd of March, 2023 on behalf of the Defendant; and an Affidavit of Ronan Murphy sworn the 24 ^th of February, 2023.

12 . Diametrically opposing positions are adopted on behalf of the Plaintiff and the Defendant on affidavit as to the character of the parties' exchanges at the end of April, 2020 when the Plaintiff was advised that it was not the successful tenderer. It is confirmed on behalf of the Plaintiff that the Defendant's representative was advised by Mr. Waldron that the Plaintiff had been “ shafted” and that the Plaintiff considered the Defendant to be in breach of agreement. On behalf of the Defendant Mr. Mulryan accepts that the Plaintiff was disappointed not to obtain the tender but he says he read the exchange of emails on the 29 ^th of April, 2020, 30 ^th of April, 2020 and the 1 ^st of May, 2020 as the Plaintiff engaging in stating a position intended to achieve its best advantage in relation to:

• i. The subsequent negotiation of the final accounting between the parties where the GAA had advanced the sum of €175,000 for the purpose of booking agreed transitional resources in anticipation of the delivery of the Tickets.ie software code in December, 2019. This payment was made in anticipation of the successful conclusion of the tickets.ie deal which did not proceed;

• ii. To seek to position the Plaintiff to secure a future contractual relationship with the GAA outside of the confines of the recently concluded tender process.

13 . It appears from the Affidavit evidence that it was the Plaintiff's representatives (Mr. Waldron and Mr. Murphy) who introduced the concept of “ without prejudice”...