ESB and Another v Richmond Homes and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Dignam
• Judgment Date: 13 October 2023
• Neutral Citation: [2023] IEHC 571
• Docket Number: [Record Number.] 2022 3755 P

Electricity Supply Board and ESB Networks DAC

Plaintiff

and

Richmond Homes and Arkmount Construction Limited

Defendant

[2023] IEHC 571

[Record Number.] 2022 3755 P

THE HIGH COURT

Disclosure – Necessity – Norwich Pharmacal order – Plaintiffs seeking a Norwich Pharmacal order to compel the defendants to disclose certain information – Whether the plaintiffs had established that disclosure of the information was necessary

Facts: The plaintiffs, the Electricity Supply Board (ESB) and ESB Networks DAC, applied to the High Court for a Norwich Pharmacal order to compel the defendants, Richmond Homes and Arkmount Construction Ltd, to disclose certain information: Norwich Pharmacal Co & Ors v Customs and Excise Commissioners [1874] AC 133. The reliefs being sought by the plaintiffs and which remained in dispute were: an order pursuant to the inherent jurisdiction of the Court directing the defendants and each of them, to provide full details of all payments made by either of them, their respective servants or agents, to any employee, agent, contractor and/or representative of the plaintiffs, or either of them, other than on foot of invoices properly raised by the plaintiffs, or either of them; and without prejudice to the generality of the foregoing, an order directing the defendants, and each of them to provide to the plaintiffs, in respect of each such payment (i) the name(s) of the person or persons who requested the payment, (ii) details of what was to be done in consideration for the making of the payment, (iii) details of the amount paid, (iv) the time and date upon which such payment was made, (v) the name of the person(s) to whom such payment was made, (vi) the method by which such payment was made, (vii) the place at which such payment was made, and the actions taken by the person(s) to whom such payment was made in connection with the payment.

Held by Dignam J that there was clear proof of wrongdoing by persons other than the four named individuals and that they were within distinct categories of persons. He held that those names were clearly necessary. He held that the purpose of a Norwich Pharmacal order is to make it possible for the party seeking the relief to bring proceedings against the wrongdoer(s). He held that the plaintiff wished to proceed against all alleged wrongdoers and they therefore needed the names of the persons who were alleged to have received improper payments. He held that the balance favoured the making of an order that the defendants disclose to the plaintiffs the names of any individual(s) who demanded or received payment.

Dignam J was not satisfied that the plaintiffs had established that disclosure of all of the other information was necessary, other than the date and amount of any payments. He was satisfied that in a case which was based on the making and receipt of improper payment(s) the date and amount of each payment was the bare minimum required to enable the plaintiffs to bring proceedings in accordance with the Rules of the Superior Courts (Order 19 rule 5(2) specifically refers to a requirement to provide dates) and disclosure of those details was necessary. It seemed to him that the balance favoured making the order. He therefore proposed, subject to appropriate undertakings being given, to make an order directing the defendants to disclose the date and amount of each payment. It seemed to him that the requirement that any order should be proportionate meant that there should be temporal and geographic limitations on the order. He held that the order would be limited to the four sites and must be limited from the date, not when the defendant started on site but when ESB commenced, up to the date when the defendants first raised the issue with the plaintiffs; while it was first raised prior to the meeting on the 17th May 2022, that seemed to him to be the appropriate end-date.

Application granted in part.

Judgment of Mr. Justice Dignam delivered on the 13 ^th day of October 2023 .

Introduction

1 This is my judgment in respect of the plaintiffs' application for what is commonly known as a “ Norwich Pharmacal” Order to compel the defendants to disclose certain information.

2 The first-named plaintiff is the well-known corporation established by statute. It is the owner of the distribution and transmission systems used to provide electricity to homes and businesses in the State. The second-named plaintiff is the distribution system operator that operates the electricity distribution systems. Employees of the first-named defendant ( “the ESB”) work on the maintenance and upkeep of that distribution system pursuant to agreements between the ESB and the second-named defendant. I will refer to the second-named defendant by its full name, “ ESB Networks DAC”, because, confusingly, the ESB employees who work on the maintenance and upkeep of the system work for a unit of the ESB called “ ESB Networks”.

3 The first-named defendant is a development company and the second-named defendant is a construction company. I understand the second-named defendant was building a number of housing developments on behalf of the first-named defendant. I will refer to the defendants as “ Richmond Homes” and “ Arkmount” respectively or, collectively, as “ the defendants”. Insofar as directly relevant to these proceedings they were developing sites at four locations in north Dublin:

(a) Streamstown Lands, Streamstown Wood/Park Avenue, Malahide;

(b) Oak Park, Kinsealy Lane, Malahide;

(c) Mariner's Way, Rush;

(d) The Coast, Baldoyle.

4 These proceedings were issued by Plenary Summons on the 27 ^th July 2022 seeking:

“1. An Order pursuant to the inherent jurisdiction of this Honourable Court directing the Defendants and each of them, to provide full details of all payments made by either of them, their respective servants or agents, to any employee, agent, contractor and/or representative of the Plaintiffs, or either of them, other than on foot of invoices properly raised by the Plaintiffs, or either of them.

2. Without prejudice to the generality of the foregoing, an Order directing the Defendants, and each of them to provide to the Plaintiffs, in respect of each such payment:

(i) The name(s) of the person or persons who requested the payment;

(ii) Details of what was to be done in consideration for the making of the payment;

(iii) Details of the amount paid;

(iv) The time and date upon which such payment was made;

(v) The name of the person(s) to whom such payment was made;

(vi) The method by which such payment was made;

(vii) The place at which such payment was made; and

(viii) The actions taken by the person(s) to whom such payment was made in connection with the payment.

3. An Order directing the Defendants, and each of them, to provide all documentary evidence (electronic or physical) including (but not limited to) any ledger entries, cash book entries, bank withdrawal records, electronic banking records, email correspondence, text messages, WhatsApp messages, social media messages, or posts, telegram messages referring to or evidencing any of the matters set out at paragraph 2 ante.”

5 By Notice of Motion issued two days later, on the 29 ^th July 2022, the plaintiffs sought a number of directions relating to the trial of the action at paragraph 1. Paragraphs 2 – 4 were in identical terms to paragraphs 1 – 3 of the General Indorsement of Claim. For the purpose of this judgment, I will refer to the reliefs sought in the Notice of Motion and will use those paragraph numbers.

6 . The parties were agreed that the hearing of this application on affidavit should be treated as the trial of the action and therefore I did not need to consider paragraph 1. The relief sought at paragraph 4 of the Notice of Motion has fallen away on foot of an Order made by consent of the parties on the 6 ^th October 2022. On that date Stack J ordered that the “ Defendants provide to the Plaintiffs all documents (including any communications) generated between 1 June 2020 and 31 July 2022 concerning evidencing or recording the making of the alleged payments or the alleged possibility of making payments to any employee agent contractor and/or representative of the Plaintiffs or either of them (other than on foot of invoices properly raised by the Plaintiffs or either of them) in connection with the carrying on of any works at or in connection with following sites:

(a) Streamstown Lands Streamstown Wood/Park Avenue Malahide

(b) Oak Park Kinsealy Lane Malahide

(c) Mariner's Way Rush

(d) The Coast, Baldoyle”

7 The documents were provided on the 25 ^th October 2022 and then by letter of the 30 ^th November 2022 the defendants confirmed that those documents were the entirety of the documents encompassed by that Order. It is also important to note that there was a parallel Garda process which I will refer to below.

8 Thus, this judgment is only concerned with the reliefs sought at paragraph 2 and 3 of the Notice of Motion (1 and 2 of the General Endorsement of Claim).

Background

9 The general background to the proceedings is as follows.

10 I refer to the representatives and staff of Richmond Homes and Arkmount and any alleged wrongdoers by initials because that is how they were referred to during the hearing and because their names are not relevant to the legal issues to be considered in this judgment. At the hearing an issue arose about whether there were or should be any reporting restrictions and an application was made by a bona fide member of the press for an opportunity to make submissions if I was considering imposing any such restrictions. There was a separate hearing on this two days later (10 ^th February) on which occasion an application was made on behalf of Mr. A, one of the persons who is alleged to have received payment(s) the details of which are sought in the Notice of Motion for reporting restrictions. I gave...