Grant Thornton (A Firm) v Scanlon

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 31 October 2019
• Neutral Citation: [2019] IECA 276
• Court: Court of Appeal (Ireland)
• Docket Number: THE COURT OF APPEAL
• Date: 31 October 2019

BETWEEN/

GRANT THORNTON (A FIRM)

AND

BY ORDER GRANT THORNTON CORPORATE FINANCE LIMITED

PLAINTIFFS/RESPONDENTS

- AND -

GERARDINE SCANLAN

DEFENDANT/APPELLANT

[2019] IECA 276

Irvine J.

Baker J.

Donnelly J.

THE COURT OF APPEAL

Appeal No. 2017/459

2017/464

Joinder – Objective bias – Defence – Appellant seeking to appeal against orders refusing the joinder of two named parties – Whether the orders of the trial judge must be set aside on the grounds of objective bias

Facts: The defendant/appellant, Ms Scanlan, appealed to the Court of Appeal against two orders made by Gilligan J on 27 July 2017, following delivery of a written judgment: [2017] IEHC 648. The orders were made in three interlocutory motions: two motions by the plaintiffs/respondents, Grant Thornton, one to strike out portions of the defence and counterclaim of Ms Scanlan, and the other to dismiss the defence and counterclaim for failure to obey a previous order; and a third, that of Ms Scanlan, in which she sought twenty separate reliefs, the central ones being for the purposes of these appeals, her application that the Data Protection Commissioner (the DPC) and Danske Bank A/S (the Bank) be joined to the proceedings. The motions were heard over two days and Gilligan J, having reserved his judgment, ordered that certain paragraphs of the defence and counterclaim be struck out and refused the relief sought by Ms Scanlan. Ms Scanlan’s primary focus was on the refusal of her application to join the DPC and the Bank. She mostly grounded her appeal on an allegation that the orders of the trial judge must be set aside on the grounds of objective bias.

Held by Baker J that the application to set aside the orders of the trial judge on the stated ground of objective bias must be dismissed, and was not one made on any ground which had been substantiated or which could reasonably be advanced. Baker J agreed with the finding of the trial judge that no cause of action was asserted against the Bank in these proceedings, or, as he put it, “the Bank has no role”. Insofar as the argument that the Bank be joined was based on the alleged concealment of facts in the receivership or judgment process, Baker J held that this was not a matter which arose in these proceedings, and, taking the application of the appellant at its height, if the focus were to be on the matters pleaded in the defence and counterclaim delivered on 18 December 2017, no role was asserted and no relief sought against the Bank which might require it to be a party. Baker J held that that no case was made out which would justify the joinder of the DPC to the proceedings, whether as amicus curiae or otherwise; no cause of action had been asserted against the DPC and the trial judge was perfectly correct in that conclusion. Baker J held that the fact that the DPC did not seek to be joined as amicus was another factor which must weigh strongly in any consideration of the appeal. For the reasons stated, Baker J held that she would dismiss the appeal of Ms Scanlan against the orders refusing the joinder of the two named parties. Baker J noted that no specific ground of appeal was directed to the order of the trial judge that a portion of the defence and most of the counterclaim be struck out, although it could be said that Ms Scanlan’s argument that the trial judge’s orders ought to be set aside on the grounds of objective bias encompassed an appeal against those orders. Baker J did not consider that this ground had any substance. Baker J held that the appeal of those orders of Gilligan J, insofar as they may be encompassed within the general grounds of appeal pleaded, should, for that reason, be dismissed.

Baker J held that she would dismiss the appeals and affirm the order of the High Court.

Appeals dismissed.

JUDGMENT of Ms Justice Baker delivered on the 31st day of October, 2019

1 This is Ms Scanlan's appeal of two orders made by Gilligan J. on 27 July 2017, following delivery of a written judgment Grant Thornton (A Firm) v. Scanlan [2017] IEHC 648. The orders were made in three interlocutory motions: Two motions by the plaintiffs/respondents (“Grant Thornton”), one to strike out portions of the defence and counterclaim of Ms Scanlan, and the other to dismiss the defence and counterclaim for failure to obey a previous order; And a third, that of Ms Scanlan, in which she sought twenty separate reliefs, the central ones being for the purposes of the present appeals, her application that the Data Protection Commissioner (the “DPC”) and Danske Bank A/S (“the Bank”) be joined to the proceedings.

2 The motions were heard over two days and Gilligan J., having reserved his judgment, ordered that certain paragraphs of the defence and counterclaim be struck out and refused the relief sought by Ms Scanlan.

Background facts

3 The background facts giving rise to the present proceedings are relatively straight-forward but the proceedings themselves are complex and have resulted to date in a number of applications, orders and rulings by different High Court judges and by this Court.

4 The Bank obtained judgment against Ms Scanlan on 25 February 2016, following the delivery by Fullam J. of a reserved judgment, Danske Bank A/S (t/a Danske Bank) v. Scanlan [2016] IEHC 118, and he thereafter struck out associated proceedings against both the Bank and Stephen Tennant of Grant Thornton who had been appointed by the Bank as receiver on 15 August 2013 on foot of the powers contained in its security.

5 What gave rise to the present proceedings followed the making by Ms Scanlan of a data protection access request to Grant Thornton on 15 September 2015 and the furnishing by Grant Thornton to her of a compact disc (“the CD”) containing certain information and data pertaining to her, but also what is accepted to have been confidential and personal data relating to third unconnected parties, and confidential proprietary information belonging to Grant Thornton. For the purposes of the proceedings and this judgment, that data not pertinent to Ms Scanlan will be referred to as the “confidential information”.

6 Ms Scanlan refused the request made by Grant Thornton to return the confidential information and her refusal led to the institution of these proceedings on 27 November 2015, in which injunctive relief was sought requiring her to deliver up all data comprising the confidential information and restraining her from disseminating, communicating, or otherwise making use of that data. The proceedings also sought damages for breach of confidence, misuse of private information, breach of privacy, and breach of statutory duty. Ms Scanlan accepts, and had accepted for some time before the proceedings were instituted, that she did send some documents forming part of the confidential information to third parties, and she asserts that she was, and remains, under a legal obligation to do so and to inform the affected parties that she has the information and the manner in which it was disclosed to her.

7 On 27 November 2015 Grant Thornton obtained interim injunctive relief against Ms Scanlan. When the matter came on for hearing at interlocutory stage on 4 December 2015, Ms Scanlan consented to an order restraining her from making use of the confidential information or any part thereof pending the determination of the proceedings, and to an order to deliver up all documents and records comprising the confidential information and an order to destroy, erase, and delete any of the confidential information remaining in her possession.

8 Ms Scanlan now describes that order as “a gagging order”, but she did hand over to Grant Thornton's legal advisors the CD and two USB sticks on which she had uploaded the information.

9 The order of 4 December 2015 was not appealed.

10 Thereafter, Ms Scanlan refused a request by the solicitors acting for Grant Thornton that the interlocutory orders be made permanent and the matter has proceeded to the point that a defence and counterclaim was delivered by her on 30 June 2016.

11 Ms Scanlan includes in her notice of appeal a challenge to an order of Gilligan J. made on 27 November 2015, which is manifestly out of time. The argument regarding that appeal was not advanced with any vigour at the hearing. For the purposes of this judgment, I will confine myself to the appeal from the orders of 27 July 2017.

12 Ms Scanlan's motion sought that the Attorney General, the DPC, and the Bank be joined as parties, albeit the motion does not identify the capacity in which she seeks that they be joined, and the nature of the role which she proposes for each of the proposed parties was a matter of some argument at the hearing of the appeal. The application to join the Attorney General was refused. As the notice of appeal does not include any claim that the trial judge erred in refusing to join the Attorney General to the proceedings, Ms Scanlan is not entitled to pursue this ground of appeal.

13 However, it must be said that Ms Scanlan's paperwork is voluminous and for the avoidance of doubt and because she has pleaded such broad grounds of appeal, I do wish to make some observations regarding the points she makes.

14 In her supplemental submissions prepared as a working document for the purposes of making oral submissions at the appeal, Ms Scanlan seeks to argue that a “constitutional injustice” has been suffered by her. She argues in reliance, inter alia, on Articles 29.4.6, 40.1 and 40.3 of the Constitution that her constitutional rights ought to be vindicated by the Attorney General and that his Office has a general obligation to assert or protect public rights. She argues that the rights she asserts in the proceedings are rights which, as she puts it, “belong to the public as a whole” and are not exclusively rights of a private character.

15 The data protection rights from the then relevant Data Protection Act 1988, as amended, are...