Grant Thornton [A Firm] v Scanlan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 17 October 2022 |
| Neutral Citation | [2022] IEHC 610 |
| Court | High Court |
| Docket Number | [RECORD NO. 2015 9954 P] |
[2022] IEHC 610
[RECORD NO. 2015 9954 P]
THE HIGH COURT
Discovery – Further and better particulars – Proprietary information – Defendant seeking to compel the plaintiff to provide further and better particulars – Whether discovery ought to be ordered
Facts: The plaintiff, Grant Thornton (a firm) and Grant Thornton Corporate Finance Ltd, replied to a data access request by the defendant, Ms Scanlan. They purported to do so by providing a CD containing documents to the defendant. It seemed that CD contained personal data relating to the defendant but also a vast volume of data/information relating to third parties and data/information which was claimed to be the plaintiff’s proprietary information. The plaintiff requested the defendant to return the CD and to give an undertaking that the information would not be disseminated. An undertaking in the terms sought was not forthcoming and the plaintiff issued proceedings on the 27th November 2015 and sought, and obtained, interlocutory injunctive relief on the 4th December 2015, inter alia, directing the defendant to return to the plaintiff certain confidential information that had been sent to her in error. Those orders were made on consent. The matter then proceeded and there were a number of iterations of the pleadings. The matter had a long and protracted procedural history. According to the plaintiff, over 50 affidavits were filed and over eight interlocutory judgments were delivered, either by the High Court or the Court of Appeal. The defendant applied to the High Court to compel the plaintiff to provide further and better particulars. The defendant also applied for discovery.
Held by Dignam J that he would direct the plaintiffs to reply to the following particulars: “14. Clarify whether the term ‘data breach’ as used in paragraph 13 of the Re-Amended Statement of Claim includes the inadvertent disclosure of the company proprietary information. 15. Provide: (i) the identities of the third parties referred to in the “Particulars” section of paragraph 14 and in paragraph 15 of the Re-Amended Statement of Claim; (ii) in the alternative, confirmation that the plaintiffs do not know the identities of those third parties; (iii) further, or in the alternative, confirmation whether the plaintiffs are only relying on the disclosure to the third parties expressly named in the Re-Amended Statement of Claim [Mr Scriven and Mr McKeogh] and/or the making the documents available to the public at large on social media. 16. Direct that the Defendant’ to identify the data, personal or company, disclosed to Mr. McKeogh.”
Dignam J held that he would make an order for discovery in the following terms: “1. Any documents containing information which the plaintiffs are aware was disclosed and which it will be alleged was disclosed by the defendant, subject to appropriate redaction to maintain the confidentiality of the identity of the party/parties to whom such information relates. 2. The email stream dated the 13th October culminating in an email in which it is stated that “...the issue of Ms. Scanlan receiving third party documents has nothing to do with her there is nothing to say to Ms. Scanlan as she has received her records.” 3. Direct that discovery be made of all correspondence between the plaintiff (or solicitors acting on their behalf) and the defendant between the 3rd October 2015 and the 4th December 2015. 4. The correspondence received from third parties who claim to have or have in their possession documents comprising part of the Confidential Information, the email of the 26th November 2015, the letter dated the 15th April 2016, the letters of the 10th March and 31st March 2016 to Baker Tilly Ryan and Byrne Wallace respectively, the posts on Facebook of the 25th and 26th November 2015, and the tweets of the 25th and 26th November 2015.”
Discovery ordered.
JUDGMENT of Mr. Justice Dignam delivered on the 17 th day of October 2022 .
This matter has had a long and protracted procedural history. I am told by counsel for the plaintiff that over 50 affidavits have been filed and over eight interlocutory judgments have been delivered to date, either by the High Court or the Court of Appeal. This judgment deals with an application by the defendant to compel the plaintiff to provide further and better particulars and an application for discovery by the defendant. The application for discovery is brought in unusual terms but it was treated as a motion for discovery by the parties and I propose to deal with it as such.
It will be necessary to set out some of the long and protracted procedural history because part of that history involves changes to the pleadings and it will be necessary, in order to assess whether the further and better particulars sought or discovery should be directed, to identify precisely what the parameters of the case are on the basis of the current pleadings.
The genesis of the case is set out in paragraphs 3–10 of Baker J's judgment on behalf of the Court of Appeal on the 31 st October 2019 ( [2019] IECA 276) and quoted in Pilkington J's judgment on the 2 nd June 2020 ( [2020] IEHC 509). Grant Thornton replied to a data access request by the defendant. They purported to do so by providing a CD containing documents to the defendant. It seems that CD contained personal data relating to the defendant but also a vast volume of data/information relating to third parties and data/information which was claimed to be the plaintiff's proprietary information.
Grant Thornton requested the defendant to return the CD and to give an undertaking that the information would not be disseminated. An undertaking in the terms sought was not forthcoming and the plaintiff issued proceedings on the 27 th November 2015 and sought, and obtained, interlocutory injunctive relief on the 4 th December 2015, inter alia, directing the defendant to return to the plaintiffs certain confidential information that had been sent to her in error. These orders were made on consent.
The matter then proceeded and there were a number of iterations of the pleadings. For the reasons set out above, it is necessary to set out in some detail the procedural history of the matter.
The Plenary Summons was issued on the 27 th November 2015 and was amended on the 3 rd December due to typographical errors and on the 4 th December 2015 to join Grant Thornton Corporate Finance Limited as a plaintiff and to make consequential amendments.
A number of reliefs were sought including, in summary, orders restraining the defendant from disseminating the “ Confidential Information” as defined in the Schedule to the Plenary Summons, directing her to deliver up all documents and records containing the Confidential Information belonging to the plaintiffs, requiring her to destroy the Confidential Information in her possession and requiring her to take all necessary steps to retrieve from the public domain any of the Confidential Information which she had disseminated, and an order restraining her from processing any personal data, other than her own, other than in accordance with the Data Protection Acts. The plaintiffs also sought damages for “breach of confidence and/or misuse of private information”, damages for “ breach of privacy” and damages for “ breach of statutory duty, including but not limited to, damages pursuant to section 7 of the Data Protection Acts, 1988 and 2003.”
The Schedule to the Plenary Summons defined “Confidential Information” as “All information provided by the Plaintiffs to the Defendant in electronic form on 11 September 2015 other than the Defendant's own personal data, within the meaning of the Data Protection Acts, 1988 and 2003.” The reference to the “ Data Protection Acts, 1988 and 2003” in this definition (though not in the body of the Plenary Summons or Statement of Claim) clearly refers to the defendant's “own personal data.”
Gilligan J granted a number of reliefs on consent on the 4 th December 2015. There was no appeal from this Order.
A Statement of Claim was delivered on the 23 rd February 2016. It may be helpful to quote a number of the paragraphs from this Statement of Claim:
“7. While the CD contained personal data relating to the Defendant (within the meaning of the Data Protection Acts) as a result or inadvertence it also included other information comprising confidential information and/or personal data relating to third parties and confidential proprietary information of Grant Thornton, including material which was legally privileged. The information on the CD (other than the personal data relating to the Defendant) is hereafter referred to as the “Confidential Information.”
8. Upon receipt of the Confidential information, the Defendant knew, or ought to have known, that the Confidential Information was not the Defendant's personal data, within the meaning of section 1 of the Data Protection Acts and that the release of the Confidential Information to her was unintended.
9. By letter dated 3 October 2015, the Defendant alerted Grant Thornton to the fact that she had found on the CD furnished to her items of information, including deeds of appointment of receivers in respect of properties unconnected with her.
10. In the premises, at all material times following the receipt of the Confidential Information, the Defendant knew of ought to have known that the Confidential Information was confidential information belonging to Grant Thornton which had been released to her in error. Further, the Defendant knew, or ought to have known, that she had no entitlement to receive, retain or publish the Confidential Information.
11. In the circumstances, following the receipt of the Confidential Information, the Defendant was under an obligation to...
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