Irish Bank Resolution Corporation Ltd (in special liquidation) and Others v Quinn and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 29 April 2015 |
| Neutral Citation | [2015] IECA 84 |
| Court | Court of Appeal (Ireland) |
| Date | 29 April 2015 |
AND
AND
[2015] IECA 84
Peart J
Irvine J
Mahon J
THE COURT OF APPEAL
Receivership – Disclosure – Process of inspection of documentation – Production of documentation – Receivers of Irish Bank Resolution Corporation Limited – Privilege – Legal professional privilege
Facts The plaintiffs claimed the personal defendants had placed assets out of reach that ought to have been made available for the liquidation of IBRC. A High Court Order directed the personal defendants to deliver up to the receivers all books, records and documents relating to the assets and financial/ tax affairs of the personal defendants and any devices on which said documents may have been stored. The receivers brought a motion seeking to compel the personal defendants to swear an affidavit containing certain information in respect of the documents over which they had asserted privilege. The defendants opposed such action stating it had the potential to dilute and/or destroy the privilege claimed. The receivers emphasised that they were entitled to know the basis upon which the personal defendants claimed privilege over particular documents. The receivers pointed out that they were officers of the court and independent of the plaintiff.
Held The judge accepted the submissions of the defendants that the requirement, imposed by the High Court, directing them to provide the subject title heading to communications and the names of attachments and documents over which privilege was claimed carried with it a very real risk that the content of such documentation, in whole or in part, would be be divulged, thereby significantly diluting or removing the right to privilege.
The judge concluded that while the directions of the High Court Order placed the personal defendants at risk of disclosing information and material that may have been privileged, the balance of justice could not be served by simply setting aside the Order of McGovern J.
The judge was satisfied that the Order ought to be replaced with one that would require the defendants to set out, in respect of each document over which privilege was claimed, ameaningful narrative containing a sufficient description of the document to allow the receivers to make a reasoned judgment as to whether privilege was maintained.
Judgment of Mr. Justice Mahon delivered on the 29th April 2015
1. Two separate Orders of the High Court have been appealed by a number of the defendants in these proceedings. In this judgment these defendants are referred to as 'the personal defendants'. They are also referred to in other relevant documentation as 'the relevant defendants'.
2. Both relate to Orders made by McGovern J. concerning the process of the inspection of documentation and other material by the receivers of Irish Bank Resolution Corporation Limited (in Special Liquidation) ("IBRC"), namely Orders made on 24 th November 2014 and on 9 th December 2014.
3. The background to these Appeals is the plaintiffs' claim that the personal defendants have placed assets which ought to have been available for the liquidation of IBRC, beyond reach. These proceedings are part of major and contentious litigation arising out of the interaction between the former Anglo Irish Bank and members of the Quinn family, and companies owned and controlled by them.
4. A particular feature of these proceedings (and indeed other related litigation) is the enormous amount of documentation that has been discovered, or awaits discovery or inspection.
5. The receivers who are the Respondents in these appeals are Mr. Declan Taite and Ms. Sharon Barrett ("the receivers"). Mr. Taite was appointed a receiver by Orders of the High Court in June/July 2012 on the application of IBRC, over the assets of the relevant defendants, with the exception of the twentieth personal defendant/appellant, Karen Woods. Ms. Barrett was appointed as joint receiver with Mr. Taite over the assets of Ms. Karen Woods. In their capacity as court appointed receivers they are separate parties to the plaintiffs, and act independently of them. The receivers were appointed in aid of Mareva injunctive relief granted by order of the High Court on 14 th June 2012.
6. The common backdrop to both appeals is an Order of the High Court (Kelly J) dated 9 th November 2012. That Order directed the personal defendants to deliver up to the receivers all books, records or documents relating to the assets or the financial or tax affairs of the personal defendants, and included all devices on which such may be stored.
7. The High Court Order of 9 th November 2012 provided for a process (the High Court Process) for the review of such documentation and material by the receivers, and which directed the receivers to review all documentation collected from the personal defendants, and then divide the documents into three categories, namely
(i) those documents which appear to be relevant and not privileged, and therefore disclosable to IBRC,
(ii) those documents which appear to be privileged or arguably so; and
(iii) those documents considered to be irrelevant (non-relevant documentation).
8. The Order further provided that where it was impossible to reach agreement in respect of the categorisation of the documents, the personal defendants were at liberty to apply to the High Court for directions.
9. The High Court Order of 9 November 2012 was the subject of an appeal to the Supreme Court. By order of the Supreme Court on 26 th February 2014, the High Court Order of 9 th November 2012 was varied. The Supreme Court Order provided for a process for dealing with downloaded material and which it referred to as 'the Supreme Court process', in substitution for the original 'High Court process'. This variation of the High Court Order by the Supreme Court is the focus of one of the Appeals to this court.
10. The receivers brought a motion on 12 th November 2014 seeking to compel the personal defendants to swear an affidavit containing certain information in respect of those documents over which they had asserted privilege in furtherance of the High Court Order of 9 th November 2012, as amended by the Supreme Court Order of 26 th February 2014 (the Disclosure Order). More specifically, the information sought was divided into six categories for description and identification purposes, and intended to assist the receivers identify the type and nature of the very large number of documents over which the personal defendants claimed privilege, and thus enable them challenge such claims where appropriate.
11. The first Appeal relates only to that part of the Order of McGovern J. which dealt with the fifth of the six categories of information sought, namely 1.5, and which ordered the disclosure of "the subject title, heading to communications and names of attachments and documents over which privilege is claimed."
12. The personal defendants contend that a requirement that they provide "the subject title heading to communications and names of attachments and documents over which privilege is claimed" has the potential to dilute and/or destroy the privilege claimed. It is argued that such a requirement has the potential to reveal the substance of the content of the document, and that there is a real risk that the privilege claimed over such communications/attachments could be fatally undermined. The personal defendants maintain that the learned High Court judge erred in law and in principle in rejecting this argument, when he directed that they provide that information in respect of each document over which they asserted privilege.
13. By way of an alternative means of assisting the receivers in identifying the type and nature of the documentation over which privilege is claimed, the personal defendants state that they prepared:
"… to provide a short narrative in respect of each document chosen by the receivers or if deemed necessary over all documents over which the personal defendants have claimed privilege explaining the basis of each claim to privilege."
14. It is contended on behalf of the personal defendants that a description process such as that outlined in the previous paragraph would adequately deal with the concerns raised by the receivers to the effect that the information already provided by the personal defendants does not, in many instances, sufficiently identify the type and nature of the document over which privilege is asserted.
15. The receivers emphasised that they were entitled to know the basis upon which the personal defendants claimed privilege over particular documents. They maintained that the information sought by them (and ordered by the High Court) was necessary information to enable them understand the type and nature of the document over which privilege was being asserted,...
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