Brophy v Mediahuis Ireland Group
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 13 February 2023 |
| Neutral Citation | [2023] IEHC 47 |
| Court | High Court |
| Docket Number | 2019 No. 6358 P |
[2023] IEHC 47
2019 No. 6358 P
THE HIGH COURT
Costs – Discovery – Privilege – Plaintiffs seeking costs – Whether costs should be made costs in the cause
Facts: The plaintiffs, Mr Brophy and Mr O’Reilly, brought proceedings seeking damages in respect of a “data interrogation” exercise alleged to have been carried out by the first defendant, Mediahuis Ireland Group Ltd, at the direction of the second defendant, Mr Buckley. The “data interrogation” issue was one of a number of issues being investigated by two inspectors appointed by the High Court pursuant to Part 13 of the Companies Act 2014. The plaintiffs sought the discovery of documents in support of their claim. The High Court directed the defendants to make discovery of documents: [2022] IEHC 660 (the principal judgment). The parties made submissions on the allocation of legal costs at a hearing on 30 January 2023. The plaintiffs submitted that they were entitled to the costs of the application for discovery in circumstances where, first, they succeeded in their argument that the assertion of privilege was premature, and, secondly, the temporal limit on the discovery to be made by the second defendant was some four years longer than that sought on his behalf. The first defendant submitted that the costs should be made costs in the cause. Counsel submitted that, having regard to the duty of confidentiality imposed by the inspectors, this was not a case where the first defendant could have safely agreed to make discovery voluntarily; an application to court would have been necessary in any event. Counsel emphasised that the principal judgment had addressed the concern that the mere act of describing a document in the affidavit of discovery might undermine any subsequent claim for privilege. It was submitted that the protocol prescribed by the court in the principal judgment would not have automatically arisen and thus the hearing was of some benefit. Counsel on behalf of the second defendant submitted that the costs should be reserved. Counsel emphasised that his side’s oral submissions at the hearing of the motion for discovery were confined to the issue of the temporal limit. The second defendant had, in the correspondence prior to the motion, indicated consent to the proposed discovery during all of the periods during which the cause of action occurred; whereas the period over which discovery had been ordered spanned an additional four years, it remained to be seen whether this brought anything new in terms of discoverable documents.
Held by Simons J that the plaintiffs were entirely successful in the procedural point raised. He noted that they had insisted from the very outset that the assertion of privilege was premature and their objection was grounded in a long line of case law. Having regard to that case law, he held that the conduct of the defendants in seeking an adjudication on the claim of public interest privilege, in advance of their filing affidavits of discovery, was not “reasonable” (in the broad sense that that term bears in the context of the allocation of costs). He held that the consequence of the defendants having raised that issue was that the hearing of the motion for discovery was prolonged; the hearing took two days. He held that had the defendants adopted a more reasonable approach, then the motion could have been dealt with shortly.
Simons J held that the plaintiffs were entitled to recover the costs of each of the two motions for discovery as against the respective defendant. He held that the costs were to include, inter alia, the costs of the written legal submissions, the costs of two counsel, the stenography costs, and the costs of the post-judgment hearing on 30 January 2023; all such costs to be adjudicated, under Part 10 of the Legal Services Regulation Act 2015, in default of agreement between the parties. He imposed a stay on the execution—but not the adjudication—of the costs order pending the final determination of the proceedings.
Costs awarded to plaintiffs.
JUDGMENT of Mr. Justice Garrett Simons delivered on 13 February 2023
This supplemental judgment addresses the allocation of legal costs consequent upon an earlier judgment directing the defendants to make discovery of documents: Brophy v. Mediahuis Ireland Group Ltd [2022] IEHC 660 (“ the principal judgment”).
The plaintiffs have brought these proceedings seeking damages in respect of what is described in the principal judgment as a “ data interrogation” exercise alleged to have been carried out by the first named defendant at the direction of the second named defendant. The “ data interrogation” exercise is said to have involved the examination of computer data (including emails) held by the first named defendant. The plaintiffs plead that the carrying out of this exercise entailed a breach of their right to privacy and of their rights under the data protection legislation; a breach of their constitutional rights; and a conspiracy to damage their interests.
The “ data interrogation” issue is one of a number of issues currently being investigated by two inspectors appointed by the High Court pursuant to Part 13 of the Companies Act 2014.
The plaintiffs had sought the discovery of documents in support of their claim. Following an exchange of correspondence, the parties had, to their credit, been able to agree almost all of the terms of the proposed discovery. The parties were unable, however, to reach agreement upon the following two points and it became necessary to bring an application before the court for adjudication.
The first point of disagreement related to public interest privilege. The defendants both raised a concern that documents held by them in respect of the ongoing statutory investigation into the affairs of Mediahuis Ireland Group Ltd might attract public interest privilege. The area of disagreement included a dispute as to the procedure to be followed: the plaintiffs contended that any consideration of privilege was premature until such time as an affidavit of discovery had been filed identifying the documents in respect of which privilege was being asserted.
This first point of disagreement was resolved in favour of the plaintiffs. The court, in the principal judgment, held that it would not be possible to...
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