Feely v Bank of Ireland Group Plc

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 23 February 2023
• Neutral Citation: [2023] IEHC 86
• Court: High Court
• Docket Number: [Record No.: 2020/3419P]

Between:

Aisling Feely and Michael Moloney

Plaintiffs

and

Bank of Ireland Group Plc, Expert Security Limited and David O'Toole

Defendants

[2023] IEHC 86

[Record No.: 2020/3419P]

THE HIGH COURT

JUDICIAL REVIEW

Tender offer – Special circumstances – Unfairness – First defendant seeking leave to make a tender – Whether there was an unfairness to the plaintiffs in permitting a tender to be made

Facts: The plaintiffs, Ms Feely and Mr Moloney, claimed damages against the defendants, Bank of Ireland Group PLC (the Bank), Expert Security Ltd and Mr O’Toole, for personal injuries, loss, negligence, breach of duty, breach of privacy and breach of confidence arising from the alleged improper and/or unlawful disclosure of the first plaintiff’s bank details. The matter came before the High Court on the motion of the Bank for an order granting leave to make a tender pursuant to Order 22 rules 1((7) and 14(2) respectively of the Rules of the Superior Courts 1986, in circumstances where leave of the Court was required if a tender offer was to be permitted. Great weight was placed in argument before Phelan J on the fact that there was an unfairness to the plaintiffs in permitting a tender to be made in circumstances where an attempt at mediation had not progressed but resulted in the early disclosure by the plaintiffs of information to the Bank on foot of their engagement in that process.

Held by Phelan J that the case law was abundantly clear that the fact that an unsuccessful attempt at resolution precedes the lodgement or tender offer, or application for leave to make a lodgement or tender offer, is not in and of itself a basis upon which a court will refuse leave; it was noted by Coffey J in O’Mahony v Hermann & Anor [2022] IEHC 9 that there was no rule contained in the Rules of the Superior Court or elsewhere which stated that leave to make a late lodgement may not be granted merely because the claim has been the subject of settlement negotiations or a mediation which have failed to resolve the proceedings. Having considered the respective positions of the parties, it was Phelan J’s view that the evidence presented in the application before her did not reach the threshold of special circumstances such as would warrant the refusal of the application because she could mitigate against the apprehended unfairness by conditioning the grant of leave.

Phelan J granted leave to make a tender offer to the Bank but to preserve litigation fairness and safeguard the plaintiffs’ constitutionally protected rights of access to the Courts, she directed that any tender offer made would not take effect until after the conclusion of the discovery process as against the Bank, or if the Bank elected, the conclusion of the discovery process as against both parties. For the avoidance of any doubt, Phelan J directed that the costs of expert reports obtained for the purpose of the plaintiffs’ claim as advanced in the proceedings and exchanged during the mediation process be costs in the cause.

Leave granted.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 23 ^rd day of February 2023.

INTRODUCTION

1 . In these proceedings the Plaintiffs claim against the Defendants for damages for personal injuries, loss, negligence, breach of duty, breach of privacy and breach of confidence arises from the alleged improper and/or unlawful disclosure of the First Plaintiff's bank details. This matter comes before me on the motion of the First Defendant (“the Bank”) for an order granting leave to make a tender pursuant to Order 22 rules 1((7) and 14(2) respectively of the Rules of the Superior Courts 1986, in circumstances where leave of the Court is required if a tender offer is to be permitted at this stage of the proceedings.

BACKGROUND

2 . The general background to the issues arising in the within proceedings with the Bank, as apparent from the pleadings, includes a very troubled familial situation, the detail of which it is unnecessary to recite for the purposes of the within application. The Third Defendant is identified in the Statement of Claim as the First Plaintiff's father. The First Plaintiff's father is also further identified as the managing director of the Second Defendant, a company which it is claimed was, for a time, the First Plaintiff's employer. It is pleaded that the Second Defendant provides investigation and security services. The First Plaintiff claims that the Second Defendant was furnished by her with her bank details for payroll purposes only.

3 . Consequent upon the difficult circumstances identified in the Statement of Claim, the First Plaintiff claims that she was led to sever all contact with both of her parents, including the Third Defendant.

4 . The central issue in these proceedings as between the Plaintiffs and the Bank relates to the circumstances in which the Second and Third Defendants came into possession of confidential banking documentation emanating from the Bank relating to the First Plaintiff. The confidential banking documentation in question disclosed private details of the First Plaintiff's bank transactions. The case made is that the private details disclosed enabled the Plaintiffs to be tracked, stalked and harassed by the First Plaintiff's parents, despite deliberately keeping their movements and location secret from them.

5 . Accordingly, in consequence of the sharing of confidential documentation, which information it is accepted by the Bank could only have been generated from the Bank's internal system, the Plaintiffs' case is that the Third Defendant was facilitated in tracking down the Plaintiffs to Spain and later England and engaging in a campaign of harassment which it is pleaded gave rise to safety concerns, caused very significant distress and necessitated the involvement of police. For reasons associated with her personal history, the First Plaintiff is described in the Statement of Claim as a “ bad candidate” for the injuries claimed to have been incurred as a result of the wrongdoing of the Defendants, including the Bank.

6 . The Bank claims to be a stranger to much of what is pleaded but it is accepted that the Plaintiffs raised issues with the Bank and the Data Protection Commissioner in relation to the treatment of the First Plaintiff's personal data. While the Bank accepts that the documents identified by the Plaintiffs are internal bank records, no admission is made as to how these documents came to be in the possession of the Second and/or Third Defendants as alleged. It is not, however, denied that the documents ought not to have been accessible to any person other than the Bank and the First Plaintiff. The Bank admits that it has certain duties to the First Plaintiff as account holder (but not the Second Plaintiff), while denying the extent of those duties or that there has been a breach of duty in this case. The Plaintiffs are put on strict proof of their injuries and the responsibility of the Bank for any part of same.

7 . Having seemingly been initially adamant that information had not been disclosed to anyone, following the involvement of the Data Protection Commissioner the Bank moved to acknowledge that it had “ fallen short of the standards that you should have been able to rely upon”, recognised that “ anguish and pain” had been caused and sought to develop “ a process for an amicable solution between the bank and yourself”. Despite correspondence in this vein and the expressed willingness of the Plaintiffs to participate in a process designed to secure an amicable solution, it seems that no process was in fact proposed until after the involvement of solicitors for the Plaintiffs who formally called on the Bank to make proposals concerning a process for amicable resolution, failing which proceedings would ensue.

8 . The Plaintiffs' solicitor's correspondence and the threat of proceedings (with summons issuing in May, 2020) appears to have been met by a proposal of mediation. The further correspondence generated in respect of this proposal is understood to be “ without prejudice” and has not been exhibited. Suffice to say that despite agreement to stay the complaint then pending before the Data Protection Commissioner to facilitate amicable resolution, agreement to the identity of a mediator and dates for the proposed mediation and engagement in a mediation process by the Plaintiffs sharing documentation at an earlier stage than would otherwise occur in the litigation context, the mooted mediation did not proceed.

9 . Following the breakdown in attempts at mediation, not surprisingly the litigation process then took its course.

CHRONOLOGY OF PROCEEDINGS

10 . While a Plenary Summons issued in May, 2020, a Statement of Claim was not delivered until August, 2020, after the mediation dates mooted for July, 2020 were aborted. It should be noted that the Statement of Claim seeks aggravated and/or exemplary and/or punitive damages, the award of which will depend on the attitude a court ultimately takes to the nature of the respective wrongdoing, if any, of each of the Defendants and the extent of the court's disapproval of each Defendant's conduct in the circumstances. Thereafter, a Notice for Particulars was raised (September, 2020) and replied to (November, 2020), a Defence was delivered (February, 2021), a Notice of Particulars of Defence was raised (February, 2021), Replies to Particulars were delivered (March, 2021), a Reply to the Bank's Defence was delivered (June, 2021) accompanied by a request for voluntary discovery and some six months later the Bank reciprocated with its own request for voluntary discovery (December, 2021). There followed extensive engagement in relation to voluntary discovery on the part of both parties. However, before discovery was finally agreed and made, the Bank filed a motion seeking for leave to make a tender offer. By letter dated the 3 ^rd of May, 2022 in response to the...