Grant Thornton (A Firm) v Scanlan

• Jurisdiction: Ireland
• Judge: Ms. Justice Pilkington
• Judgment Date: 02 June 2020
• Neutral Citation: [2020] IEHC 509
• Docket Number: [Record No. 2015/9954 P]
• Court: High Court
• Date: 02 June 2020

BETWEEN

GRANT THORNTON (A FIRM)

AND

GRANT THORNTON CORPORATE FINANCE LIMITED

PLAINTIFF

AND

GERALDINE SCANLAN

DEFENDANT

[2020] IEHC 509

Pilkington

[Record No. 2015/9954 P]

THE HIGH COURT

Jurisdiction – Scope of defence – Counterclaim – Defendant seeking an order determining her right to be heard in the first instance in the jurisdiction of the Data Commissioner – Whether the defendant’s revised defence and counterclaim should be struck out

Facts: Before the High Court, two motions required adjudication: the jurisdiction motion issued by the defendant, Ms Scanlan, and the scope of defence motion issued by the plaintiffs, Grant Thornton (a firm) and Grant Thornton Corporate Finance Ltd. The defendant’s motion sought: “1. An order pursuant to RSC O. 25, r. 1 and r. 2 determining the defendant’s fundamental right to be heard in the first instance in the jurisdiction of the Data Commissioner regarding the plaintiff’s claim for breach of the Data Protection Act, 1988 and 2003 and damages as claimed under s. 7 of the Acts. 2. An order pursuant to RSC O. 25, r. 1 and r. 2 determining the plaintiff had no locus standi or statutory authority over the disclosed private data to take legal proceedings in the High Court or any court. 3. An order pursuant to the inherent jurisdiction of the High Court to have the within motion heard prior to any other listed motions. AND should the first and second reliefs be awarded 4. An order pursuant to RSC Order 25, rules 1 and 2 determining the legitimacy and the enforceability of the court order awarded to the plaintiff on the 4th December, 2015. 5. An order pursuant to RSC Order 25, rules 1 and 2 determining the defendant’s fundamental right under Article 41 of the EU Convention of Fundamental Rights to correct and good administration regarding the issue of jurisdiction and locus standi regarding the plaintiffs’ claim in light of Article 28 of EU Directive 95/46/EC regarding lawful authority as bestowed on the Data Commission as State authority to hear those matters. 6. An order pursuant to RSC Order 25, rules 1 and 2 for a determination regarding the defendant’s fundamental and constitutional right to be treated in fairly and equally in law, set out by Article 40 of the Irish Constitution. 7. An order pursuant to RSC Order 25, rules 1 and 2 to remit any matters of breaches of the Data Protection Acts, 1988 and 2003 to the correct jurisdiction of the Data Commission for immediate section 10 legal determination as provided by EU Directive 95/46/EC and on which the Data Protection Acts, 1988 and 2003 are based. AND/OR IN THE ALTERNATIVE 8. An order to refer above matters for legal clarification and determination from the High Court of Ireland to the European Court of Fundamental and Human Rights. Any further order by this Honourable Court.” The plaintiffs’ motion sought: “(1) An order pursuant to RSC O. 19, r. 27 and/or the inherent jurisdiction of the court, striking out those paragraphs of the defendant’s revised defence and counterclaim delivered on 18th December, 2017 more specifically identified in the submissions exhibited as Exhibit “FOB1” to the affidavit of [Ms] O’Beirne sworn on 18th October, 2018 and in particular appendix 3 to those submissions on the grounds that: (i) Those paragraphs are not in compliance with the judgment and order of this Honourable Court (Gilligan J) dated 27th July, 2017; and/or (ii) The defendant does not have the requisite standing to maintain the claims advanced in those paragraphs; and/or (iii) Those paragraphs contain pleas which are unnecessary and/or scandalous and/or which may tend to prejudice, embarrass and delay the trial of the action and/or disclose no reasonable cause of action or answer and/or are frivolous and/or vexatious.”

Held by Pilkington J that there was no basis for the defendant’s contention that these proceedings be heard initially before the Data Protection Commissioner; relief 1 to the defendant’s motion was declined. She held that the plaintiff had locus standi to take the High Court proceedings; relief 2 was likewise declined. She held that relief 3 was moot and reliefs 4-7 did not arise. She held that no proper basis had been advanced for any reference to the ECHR; relief 8 was also declined.

Pilkington J held that, in respect of the revised defence, paras. 1-3, 6-8, 11 and 18-22 were allowed stand in their entirety, paras. 9-10, 12-17, and 23-24 were allowed to stand in part, and paras. 4-5 were to be struck out in their entirety. She held that, in respect of the defendant’s revised/amended counterclaim, the matters set out at paras. 1 and 16-18 were allowed to stand; the remainder were not and were to be struck out.

Reliefs refused.

JUDGMENT of Ms. Justice Pilkington delivered on the 2nd day of June, 2020.

1 This matter has had a complex procedural background, but in any event, there are three separate applications before the court, one of which appears to have now been overtaken by events.

2 In these proceedings, the defendant appears as a litigant in person.

3 I was informed by counsel for the plaintiff that, to date, there have been 11 separate interlocutory applications, some 40 affidavits have been filed and this case has had 70 separate court listings.

4 Within these proceedings the plaintiff seeks permanent injunctive reliefs restraining the defendant (and any other person having notice of the order) from disseminating, communicating or processing certain data and requiring the defendant to deliver all of the documents containing the confidential information to the plaintiffs. Other consequential orders are also sought. Any claim for damages has been waived.

5 The defendant takes issue with a number of these matters, as set out within this judgment.

6 In setting out the procedural background facts and circumstances of this matter, I was directed to the decision of the Court of Appeal [2019] IECA 276 in these proceedings, being the judgment of Baker J. on 31st October, 2019. Both parties agree that the background facts as summarised by Baker J. within that judgment, comprise a fair summary and accordingly, under the heading “Background Facts”, I can do no better than quote the learned judge as follows:-

“3. The background facts giving rise to the present proceedings are relatively straightforward 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 25th February, 2016, following the decision by Fulham 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 15th 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 15th 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 27th 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 27th November, 2015, Grant Thornton obtained interim injunctive relief against Ms. Scanlan. When the matter came on for hearing at interlocutory stage on 4th 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 4th 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 30th June, 2016.”

7 In respect of the pleadings the plenary summons issued on 27th November 2015, the Statement of Claim was delivered on 23rd February 2016, the defence and counterclaim on 3rd June 2016. This is the pleading which formed part of the hearing before Gilligan J. on 18th May 2007. He delivered judgment on 27th July 2017 [2017] IEHC 648. The judgment of Baker J. referred to and quoted (in part) above was the defendant's unsuccessful appeal against that...