Allied Irish Bank Plc v George Tracey (No.2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 21 March 2013
• Neutral Citation: [2013] IEHC 242
• Docket Number: [2011 No. 2791 S],[2011 Nos. 2791 & 2792 S]
• Court: High Court
• Date: 21 March 2013

[2013] IEHC 242

THE HIGH COURT

Hogan J.

[2011 No. 2791 S]

BETWEEN/

ALLIED IRISH BANK PLC

PLAINTIFF

AND

GEORGE TRACEY (No.2)

DEFENDANT

Banking & Finance – Summary Judgment – Disclosure of information pertaining to non-party – Access of court documents to non-party – Art. 40.3.2 of the Constitution

Facts: Following the grant of summary judgment in favour of the plaintiff by the Court in the proceedings concerning the proceedings between the plaintiff and the defendant, the applicant now came to the Court seeking an order that he was entitled to court documents that purported to implicate him in a course of conduct. The defendant contended that no useful purpose would be served by allowing access to the relevant documents to the applicant.

Mr. Justice Hogan held that the applicant was entitled to the relevant court documents. The Court held that it would be implausible to think that a non-party about whom allegations were made in an open Court in reference to some documents would not be permitted access to those documents as it would leave the non-party without any recourse in case the non-party wanted to take an action by way of defamation. The Court observed that art. 40.3.2 of the Constitution guaranteed each citizen the right to his or her good name and that right would be undermined if serious allegations against a person were made in an open Court for the purpose of defending a litigation without giving the right to that person to even know the nature of the allegations made against him. The Court held that open Court proceedings would not be immune from the confidentiality or protection from non-disclosures and the Court documents in that case would be public documents.

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

8 It seems admittedly curious that there is no recorded instance of where a non-party has sought access to court documents for this purpose. Counsel for Mr. Tracey, Mr. Marray, emphasised the fact that there was no such direct authority on point as strongly indicating that there was, in fact, no such jurisdiction to permit access to documents for this collateral purpose. This was underscored, Mr. Marray submitted, by the fact that absolute privilege attached to the documents themselves and to their opening in open court, so that, for example, Mr. Tracey could not be sued for defamation. Absent a remedy in defamation, then there would be little point in ordering or permitting access, since it...