Maye v Adams

JurisdictionIreland
JudgeMs. Justice Kennedy
Judgment Date31 July 2015
Neutral Citation[2015] IEHC 530
CourtHigh Court
Docket Number[2011 No. 387P]
Date31 July 2015
BETWEEN
ANNE MAYE
PLAINTIFF
AND
ALAN ADAMS, DENNIS AGNEW, JULIAN BOSGRIDGE, FEARGAL P BRENNAN, GERARD BUTLER, GARY BYRNE, THOMAS G BYRNE, AILEEN B COSGROVE, DARREN N DALY, OLIVE A DOYLE, MARY DUNNE, RONAN A EGAN, CATHERINE M GUY, SIAN L HARPER, DUNCAN INVERARITY, KIERAN J J JOHNSTON, MARK N KAVANAGH, SINEAD M KEARNEY, ELAINE P KELLY, MICHAEL KENNEDY, ROSEMARY KIRWAN, DEIRDRE M MCBENNET, PAUL MCGENNIS, DAVID F MACSWEENEY, JAMES F MORAN, DANIEL M MURPHY, ENDA NEWTOWN, MICHELLE NI LONGAIN, LOUISE O'DONOVAN, FIONA O'NEILL, EILEEN PREDERGAST, COLIN SAINSBURY, GAVIN N A SIMONS, GAVIN P SMYTH, EOGHAN P WALLACE, SEAN WALLACE, MICHAEL D WALSH, HELEN A WILKINSON, PRACTICING UNDER THE STYLE AND TITLE OF BYRNE WALLACE SOLICITORS FORMERLY KNOWN AS BCM HANBY WALLACE SOLICITORS AND KIERAN DUGGAN
DEFENDANTS

[2015] IEHC 530

Kennedy J.

[2011 No. 387P]

THE HIGH COURT

Damages & Restitution – O.31, r. 18 of the Rules of the Superior Courts – Discovery of documents – Relevant and necessary – Redaction of documents – Confidential and Privileged

Facts: Following the institution of second proceedings by the plaintiff for indemnification of loss suffered by the plaintiff against the defendants consolidating the first proceedings, subsequent to the settlement agreement entered into by the plaintiff and NAMA owing to the plaintiff agreeing to all the reliefs pleaded by NAMA in its proceedings against the plaintiff, the defendants now sought an order pursuant to o. 31, r. 18 of the Rules of the Superior Courts requiring the plaintiff to produce documents in lieu of that settlement agreement. The defendants contended that they needed to inspect the redacted portions of the said agreement for the fair disposal of the case against them.

Ms. Justice Kennedy granted an order to the defendants thereby allowing inspection of documents required by the defendants subject to the condition that reference should be made to a reconciliation figure rather than actual figure and that the defendants should mitigate any loss of confidentiality regarding the co-obligators and the disclosed material would not be used for any collateral purposes. The Court held that in order to require production of document, the requesting party must show that such documents were necessary for the fair disposal of the case and they would not be available through some other mode such as interrogatories or admissions. The Court held that if a prima facie case for disclosure of documents was made, the Court would first inspect the documents to ensure that the disclosure of the confidential material could be compensated by redaction or by limiting its viewing to selected persons. The Court observed that it had discretion to grant an appropriate order keeping in lieu the legitimate interests of the requesting party in proportion with the confidentiality or privilege asserted by the other party.

JUDGMENT of Ms. Justice Kennedy delivered on 31st day of July, 2015
Introduction/Background
1

This is the defendants' motion dated 16th June, 2015, seeking an order pursuant to Order 31 Rule 18 of the Rules of the Superior Courts; requiring the plaintiff, Mrs. Anne Maye of Weaver's Hall, Plunkett Avenue, Foxrock, Co. Dublin to produce documents pertaining to a settlement agreement entered into by the said plaintiff with NAMA on 2nd October, 2013, to allow for inspection and for copies to be made of such documents by Byrne Wallace Solicitors (Byrne Wallace).

2

The within proceedings issued by way of plenary summons on 17th January, 2011 against Byrne Wallace, wherein the plaintiff's claim was primarily for indemnification in respect of any cost, expenses, loss, liabilities, claims or payments arising from an agreement dated 7th August, 2008 known as the ‘Costello Agreement’. Proceedings were instituted by NAMA against the plaintiff in 2013 and the settlement agreement was made in the context of those proceedings. In 2014, a new set of proceedings was instituted by the plaintiff against Byrne Wallace and Kieran Duggan (a consultant retained by Byrne Wallace). The 2011 proceedings were consolidated with the 2014 proceedings by an order made by Gilligan J. on 11th December, 2014. The plaintiff's claim, in the consolidated proceedings, expanded considerably from that which was made in the 2011 proceedings. The plaintiff pleads, in the consolidated statement of claim, that she had no option but to compromise the NAMA proceedings by way of the NAMA settlement agreement. She pleads that in so far as she incurred any liability to NAMA, and as a consequence, had to settle any such liability; this, she pleads, is a matter for which the defendants and/or Mr. Duggan are responsible. She has, in the consolidated statement of claim, particularised her claim in this respect arising from the NAMA settlement agreement of approximately €37.5 million (including legal costs) with additional costs, expenses and tax liabilities ‘unascertained and ongoing’.

3

By letter dated April 17th, 2015 solicitors for Byrne Wallace (Messrs. Ronan Daly Jermyn Solicitors) requested production of the settlement agreement in accordance with Order 31, Rule 16 of the Rules of the Superior Courts, 1986 (as amended). A notice to produce was delivered on 28th April, 2015 wherein the defendant sought inspection of certain documents pleaded in the statement of claim, including the settlement agreement.

4

On May 14th, 2015 the plaintiff's solicitors (Matheson Solicitors) provided a redacted copy of the settlement agreement, explaining that portions of the agreement were redacted, which contained information which was irrelevant and confidential. These documents were exhibited in the affidavit of Mr. Jamie Olden, solicitor with Ronan Daly Jermyn. An offer of inspection was extended to the solicitors and counsel for the defendant. The solicitors for Byrne Wallace requested an unredacted copy thereof, or in the alternative, to withdraw so much of the plaintiff's claim that derived from the settlement agreement. Three offers of inspection were made, which were agreed to on 21st July, 2015.

5

In June, 2013 NAMA instituted proceedings against the plaintiff, as executrix of the estate of Mr. Liam Maye, deceased, seeking an order revoking the grant of probate and granting administration of the estate to Mr. McAteer of Grant Thornton. The plaintiff agreed to step down as executrix and consented to the relief sought against her.

Party Submissions
6

The defendant contends that the settlement agreement is a document by reference to which the plaintiff has grounded a substantial part of her claim against Byrne Wallace and, in respect of which, she seeks substantial damages. The settlement agreement was negotiated in 2013, at a time when the plaintiff had proceedings in being against Byrne Wallace. The plaintiff contends she intended to expand her claim against Byrne Wallace by virtue of the settlement agreement, which she duly did by issuing the 2014 proceedings. The defendant submits that, having regard to the fact that the plaintiff's claim is framed by reference to this settlement agreement, inspection of the entire unredacted agreement is necessary for disposing fairly of the cause or matter. Furthermore, Mr. Gleeson, S.C. (for the defendant), contends that the redaction has been effected in a somewhat random manner and, while the plaintiff asserts that certain information is confidential, she has failed to evaluate the quality of the information posed. Mr. Gleeson, S.C. questions, for example, how the plaintiff can claim clauses are confidential relating to her personal wealth, where she discloses clauses revealing aspects of her personal assets.

7

The plaintiff asserts that, if it were not for the advice she received from Byrne Wallace—which she contends was negligent— she would not have placed the relevant assets at risk. Such a risk, the plaintiff states, she sought to mitigate by entering into the settlement agreement. It is, in the context of assessing the reasonableness of the mitigation of her loss, that the defendant seeks the information which is the subject of these proceedings.

8

The plaintiff, by way of an affidavit sworn on her behalf by her solicitor, acknowledges that Byrne Wallace is entitled to inspection of the settlement agreement, but asserts that she is entitled to redact parts thereof on the grounds that the redacted material is not necessary for disposing fairly of the proceedings, or for saving costs, and that the redacted material is confidential.

9

The issue therefore, in this motion, is whether the defendants (hereinafter Byrne Wallace), are entitled to inspection of an unredacted copy of the settlement agreement. There has been extensive correspondence between the parties on the issue of the redacted materials and the plaintiff relies on three grounds to resist disclosing the settlement agreement in its unredacted form. These are:-

a. That the redacted material includes confidential information in relation to the plaintiffs' personal finances; clause 6, schedule 1 (part) and schedule 5;

b. That the redacted material includes confidential information in respect of co-obligors of the plaintiff, who are not party to the proceedings; clauses 8.9, 14 and 15.3; and

c. That the redacted material includes confidential information relating to the agreement concluded between the plaintiff and NAMA in relation to the conduct of these proceedings and the application of any proceeds; clause 13.

10

Mr. McGrath, S.C. for the plaintiff, submits that the information redacted from categories 1 and 2 above is confidential and irrelevant to the claims made against Byrne Wallace. Furthermore, clause 6, he contends, refers to information in a statement of affairs over which the plaintiff maintains a claim of “without prejudice” privilege. In relation to category 3, he contends that the redacted information is completely...

To continue reading

Request your trial
6 cases
  • Little v IBRC
    • Ireland
    • High Court
    • 8 October 2019
    ...Submissions of Launceston 32 Launceston relied upon the submissions of IBRC and cited the judgment of Kennedy J. in Maye v. Adams & Ors [2015] IEHC 530 (unreported, High Court, 31st July, 2015), including para. 14 thereof in respect of the discretion of the court and the requirement for th......
  • Courtney v Ocm Emru Debtco Dac
    • Ireland
    • High Court
    • 15 March 2019
    ...to a recent distillation of principles in the application of O. 31 r.18 in the judgment of Kennedy J in Maye v Byrne Wallace solicitors [2015] IEHC 530. In that case the defendants sought production and inspection pursuant to O. 31 r.18 of a settlement agreement entered into by the plainti......
  • Dunne v Grunenthal GMBH
    • Ireland
    • High Court
    • 6 December 2018
    ...31 r. 18 were considered by this court in Cooper Flynn v. Radio Telefis Eireann [2000] 3 I.R. 344 (recently applied in Maye v Adam & Ors [2015] IEHC 530). The defendant sought an order against the plaintiff's employer, a bank, requiring it to make available in unredacted form the documents ......
  • Promontoria (Aran) Ltd v Sheehy
    • Ireland
    • High Court
    • 31 July 2019
    ...is informative. 42 In the context of disclosure, Haughton J. cited with approval the quotation by Maye v Byrne Wallace Solicitors [2015] IEHC 530 of the principles adopted also by Kelly J. in Cooper Flynn v. RTE [2000] 3 IR 344, and enunciated by Brown L.J. in Wallace Smith Trust Company ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT