Cornec v Morrice and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date18 September 2012
Neutral Citation[2012] IEHC 376
CourtHigh Court
Docket Number[2012 No. 4 FTE]
Date18 September 2012
Cornec v Morrice & Ors
IN THE MATTER OF THE FOREIGN TRIBUNALS EVIDENCE ACT 1856, AND IN THE MATTER OF CIVIL PROCEEDINGS NOW PENDING BEFORE THE COLORADO DISTRICT COURT OF THE CITY AND COUNTY OF DENVER CASE NO. 2008 CV 10169 (CONSOLIDATED WITH NO. 09 CV 8277)
BETWEEN/
JEAN CORNEC
PLAINTIFF

AND

SUSAN MORRICE
DEFENDANT/
COUNTER CLAIMANT

AND

JEAN CORNEC, MARIE LAWLOR, JOHN VINCENT FENNELLY AND SHEILA McCAFFREY
ADDITIONAL COUNTER CLAIMANT/
THIRD PARTY PLAINTIFF

AND

MARIE LAWLOR
ADDITIONAL COUNTER CLAIMANT/
THIRD PARTY DEFENDANT

AND

SUSAN MORRICE AND JOSHUA STEWART
ADDITIONAL COUNTER CLAIMANT/
THIRD PARTY DEFENDANTS

[2012] IEHC 376

[No. 4 FTE/2012]

THE HIGH COURT

CONSTITUTIONAL LAW

Personal rights

Journalist - Expression - Educate public opinion - New media - Whether rights confined to traditional journalists - Balancing with other public interests - Discretion of court - In re O'Kelly (1974) 108 ILTR 97 distinguished; Mahon v Keena [2009] IESC 64, [2010] 1 IR 336 applied; Goodwin v UK(App No 17488/90) (1996) 22 EHRR 123 followed and Howlin v Morris [2005] IESC 85, [2006] 2 IR 324 considered - Constitution of Ireland 1937, Article 40.6.1 - Ex parte order vacated (2012/4FTE - Hogan J - 18/9/2012) [2012] IEHC 376

Cornec v Morrice

EVIDENCE

Request for evidence from foreign court

Privilege - Journalism - Sources of information - Disclosure - Whether disclosure of sources necessary - Whether disclosure would be oppressive - Whether distinction between identity of source and contents of disclosure - Rules of the Superior Courts 1986 (SI 15/2986), O 39, r 39 - Foreign Tribunals Evidence Act 1856 (19 & 20 Vic, c 113), s 1 - Constitution of Ireland 1937, Article 40.6.1 - Ex parte order vacated (2012/4FTE - Hogan J - 18/9/2012) [2012] IEHC 376

Cornec v Morrice

Facts: The plaintiffs were dissenting shareholders in a company undertaking oil extraction in Belize. The company was extremely successful, but a number of shareholders alleged oppression and had taken proceedings in Nevis on that point. Amongst their allegations were claims that a Mr. Quinn had sinister influence over a principal officer of the company ('Ms. Morrice').

To remedy the matter, Ms. Morrice had agreed to purchase the plaintiffs" shares. However, full payment had not been made which led to litigation in Colorado. Ms. Morrice in turn alleged the plaintiffs had contrary to the share purchase agreement made critical comments to a journalist ('Ms. Tallant') and a head of a charity ('Mr. Garde'). Ms. Morrice now sought that Ms. Tallant and Mr. Garde be deposed as relevant witnesses in regard of the Colorado litigation.

Held by Hogan J, that an application under the Foreign Tribunals Evidence Act 1856was not suitable for an ex parte application. In the interests of comity the Courts in the State would seek to comply with any request for assistance from a foreign court, but only if four conditions were met.

Firstly, the evidence requested would have to be relevant to the Colorado proceedings. Whilst some matters involving Ms. Tallant and Mr. Garde were not relevant, the Court was content to accept they were relevant witnesses. Secondly, the request should not be oppressive. Notwithstanding the existence of defamation proceedings taken by Mr. Quinn against Ms. Tallant, and the antipathy between Mr. Quinn and Mr. Garde, the Court considered the application to not be oppressive. Seyfang v GD Searle & Co [1973] QB 148 not applied.

Thirdly, the Court would have to be satisfied that any privilege available to the witnesses would not be breached. In granting the application, the Court in the instant case would effectively compromise her sources and as such would directly affect her activity as a journalist. As Ms. Tallant would be entitled to decline to answer any such questions in a similar Irish case, the application would be refused in respect of Ms. Tallant. In Mr. Garde"s case, whilst not a journalist per se, his activity in educating the public about religious cults meant that he was similarly protected from disclosing his sources.

As such, the Court would not consider the fourth condition on whether the evidence would be admissible under Colorado law, and dismissed the application.

FOREIGN TRIBUNALS (EVIDENCE) ACT 1856 S1

RSC O.39 r39

RSC O.39 r40

RSC O.39 r41

RSC O.39 r42

RSC O.39 r43

RSC O.39 r44

CONSTITUTION ART 40.3

K (D) v JUDGE CROWLEY & ORS 2002 2 IR 744 2001/15/4309

CHAMBERS v KENEFICK 2007 3 IR 526 2005/10/2105 2005 IEHC 402

DOYLE v GIBNEY & ORS 2012 1 ILRM 194 2011/15/3568 2011 IEHC 10

CUSTOM HOUSE CAPITAL LTD (NO 2), IN RE UNREP HOGAN 28.10.2011 2011/10/2277 2011 IEHC 399

NOVELL INC v MCB ENTERPRISES 2001 1 IR 608 2002 1 ILRM 350 2001/18/4904

SEYFANG v GD SEARLE & CO & ANOR 1973 QB 148 1973 2 WLR 17 1973 1 AER 290

O'KELLY, IN RE 1974 108 ILTR 97

JUDGE MAHON & ORS v KEENA & KENNEDY 2010 1 IR 336

WALSH v NEWS GROUP NEWSPAPERS LTD UNREP O'NEILL 10.8.2012 2012 IEHC 353

CULLEN & ORS v WICKLOW COUNTY MANAGER 2011 1 IR 152 2010/9/2114 2010 IESC 49

CONSTITUTION ART 40.6.1.i

CONSTITUTION ART 5

CONSTITUTION ART 28.4.1

DOHERTY v REFERENDUM CMSN & JUSTICE FEENEY UNREP HOGAN 6.6.2012 2012 IEHC 211

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTION ART 40.6

SUNDAY TIMES v UNITED KINGDOM 1979-80 2 EHRR 245

GOODWIN v UNITED KINGDOM 1996 22 EHRR 123 1 BHRC 81

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

CONSTITUTION ART 40.6.1

HOWLIN v MORRIS TRIBUNAL 2006 2 IR 321 2006 1 ILRM 440 2005/30/6196 2005 IESC 85

FOREIGN TRIBUNALS (EVIDENCE) ACT 1856 S5

1

1. It might seem surprising that litigation presently pending in the District Court of Denver, Colorado ("the Colorado litigation") concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults. This, nevertheless, is the background to the present application under s. 1 of the Foreign Tribunals Evidence Act 1856 ("the Act of 1856").

2

2. While this application raises many difficult questions of evidence, procedure, conflict of laws and the scope of journalistic privilege, it is necessary first to set out the background to this application.

The background to the Colorado litigation
3

3. So far as can be gleaned from the Colorado pleadings, it seems that Ms. Morrice, a British national, is a petroleum geologist who, along with Mike Usher, a Belizean seismic surveyor, had long believed that Belize had (then undiscovered) oil reserves. To that end they set up a series of companies which are now controlled by International Natural Energy LLC ("INE"). A subsidiary of INE, Belize Natural Energy Ltd. ("BNE") was granted a prospecting licence by the Belizean Government in January, 2003 and, to the surprise of industry observers, BNE discovered significant quantities of oil in June, 2005. Oil was then extracted and BNE commenced production and sale in January, 2006. In the words of Mr. Justice Bannister of the East Caribbean Supreme Court (Nevis Circuit) in SM Life Ventures v. Morrice, in a judgment delivered on July 16 th, 2012, BNE has since "been astonishingly successful". The decision in SM Life Ventures provides an invaluable guide to the background to the subsequent dissension within INE, since it concerns an oppression petition brought in the Nevis courts by the dissident shareholders in the company.

4

4. One of the other dissident shareholders is the present plaintiff in the Colorado proceedings, Jean Cornec. Mr. Cornec is a mining engineer who had previously worked in Belize identifying its strategraphy. Mr. Cornec and Ms. Morrice were among the five original promoters of the company and were among a handful of Class A shareholders. It would be tedious and unnecessary to chart the dissension which afflicted the company, but many of these difficulties appear to date back to 2002 when Ms. Morrice was introduced to Mr. Tony Quinn by another Class A shareholder, Ms. Shelia McCaffrey.

5

5. Although Mr. Quinn is not a party to the litigation (and, hence, not represented before me), it is fair to say that his career has engendered some controversy. While it would be inappropriate to dwell on these matters in circumstances where he was not represented before me, the evidence before me nonetheless suggests that he professes what many might regard as rather unorthodox religious views. His supporters appear to subscribe passionately to these views and often participate in what are described as "Educo" seminars run by Mr. Quinn and his close associates. In this regard and to anticipate somewhat, it may be observed that Ms. Tallant, an investigative reporter with the Sunday World newspaper has penned several articles in that newspaper in which she brands Mr. Quinn as a sham who exploits the religious sensibilities of the vulnerable for financial gain, often using hypnosis and other techniques subverting the will and reason. Mr. Cornec (and others) maintain that Ms. Morrice herself has come under what they see as the baneful influence of Mr. Quinn and that she herself has effectively gifted large amounts of stock to him, while also permitting him to use the assets of the company in a wholly unorthodox fashion. Thus, for example, Bannister J. found that some US$1.8m of INE money had been spent in the last few years on security and surveillance personnel, thus allowing Mr. Quinn to hire what the judge described as virtually his own "private army".

6

6. Bannister J. also rejected the suggestion...

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