Mulcahy v Avoca Capital Holdings Ltd

• Jurisdiction: Ireland
• Judge: MR. JUSTICE CLARKE
• Judgment Date: 14 April 2005
• Neutral Citation: [2005] IEHC 136
• Docket Number: Case No. 19810P/2004
• Court: High Court
• Date: 14 April 2005

[2005] IEHC 136

THE HIGH COURT

DUBLIN

Case No. 19810P/2004

MULCAHY v AVOCA CAPITAL HOLDINGS LTD

MR. KIERAN MULCAHY

Plaintiff

and

AVOCA CAPITAL HOLDINGS LTD

Defendant

PRACTICE AND PROCEDURE

Disclosure

Employment - Disciplinary proceedings - Circumstances of access to computers and electronic documents - Whether rules applicable to ordinary discovery applicable - Whether access to underlying original documents - Circumstances of such access - Access granted on certain conditions (2004/19810P - Clarke J - 14/4/2005) [2005] IEHC 136

Mulcahy v Avoca Capital Holding Ltd

Facts: The plaintiff was the subject of a disciplinary process with the defendant company. The matter had already been before the court on a number of occasions and there were transcripts of judgments delivered on both the 26th January, 2005 and the 11th March, 2005. The issue which now required to be determined was the terms upon which the plaintiff’s experts were to be given access to certain computer materials which were the property of the defendant. The court had held that the plaintiff was entitled to this access as a matter of fair procedures.

Held by Clarke J. that the plaintiff should have access to the computers of the joint managing directors of the defendant on the terms set out in a draft letter, a copy of which would be annexed to the order. The court would not normally give rulings as to the procedures which were to be followed in an internal disciplinary process while the process was in being.

Reporter: R.W.

1 APPROVED JUDGMENT DELIVERED BY MR. JUSTICE CLARKE ON THURSDAY, 14TH APRIL 2005

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Plaintiff:

MR. HORAN S.C.

MR. KEANE B.L.

Instructed by:

Flynn & McMorrow Solicitors

24/26 Upper Ormond Quay

Dublin 7

For the Defendant:

MR. M. CONNAUGHTON S.C.

Instructed by:

O'Mara Gerathy McCourt

51 Northumberland Rd

Dublin 4

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography, Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

4 MR. JUSTICE F. CLARKE DELIVERED JUDGMENT, ON THURSDAY 14TH APRIL 2005

5 MR. JUSTICE CLARKE: This matter has already been before the court on a number of occasions and, in particular, there are transcripts of judgments delivered by me on both the 26th January and 11th March last. It is therefore unnecessary to set out the history of the case as recorded in those judgments. The issue which now requires to be determined is as to the terms upon which the plaintiff's experts are to be given access to certain computer materials which are the property of the defendants.

6 As is clear from the judgment of 11th March, the issue before the court on that occasion was the same, in that three principal questions concerning the scope of the entitlement of the plaintiff through his experts to have access to the defendant's computer materials were then litigated and determined. Before going on to set out the issue that is now before the court, it is perhaps important to emphasise, as I noted in the judgment of the 11th March, that it was and is somewhat unusual for the court to be asked to rule on the details of matters such as this at an interim stage in a disciplinary matter.

7 It should also be noted that there has been no formal discovery motion as such before the court and, in one sense, it might be said that the issues which are now before the court arise in two different ways. Firstly, the plaintiff in these proceedings contends, amongst other things, that certain of the accusations against him are not made bona fide, and in that regard relies on a contention to the effect that the general practice within the defendant company was that many persons had access to a variety of computers, even though they might not, strictly speaking, be within their own remit. Clearly, if he were to establish as a matter of fact that the joint managing directors of the defendant had engaged in practices concerning access which were similar to those which he himself may or may not be established to have engaged in, then that would be significant material in the case which he might be able to make in these proceedings to the effect that the suspension under which he now stands was not bona fide made. Therefore, to that end, discovery is potentially relevant.

8 Also, as a matter of practicality, the plaintiff will be entitled, as a matter of fair procedure in the conduct of the disciplinary process which is currently in being within the defendant company, to be given a reasonable opportunity to make his defence, which would include of course an ability to make a point of the type which I have just indicated.

9 It is fair to say that in the ordinary course of events under either of those headings it would be somewhat premature to deal with an issue of discovery in that in the ordinary way one would not deal with discovery at this stage in court litigation until the pleadings had closed and, in the ordinary way, as I indicated in the judgment of 11th March, the court would not give rulings as to the procedures which were to be followed in an internal disciplinary process while that process was in being.

10 However, as I again pointed out in the judgment of 11th March, the parties, in effect, invited me to resolve their differences in relation to this matter under either of the above headings, and I proceeded so to do insofar as it was possible on the information available at that stage.

11 Finally, by way of background, I should note that when I gave an initial indication when this matter was first before the court, on 21st December, to the effect that the plaintiff should have access to the relevant computer materials, I did so in the context of a fair procedures issue rather than a discovery matter, there being no discovery application before the court at that stage.

12 Having set out that background, it is necessary to indicate what was determined on 11th March and to set out the disputes as to the implementation of what was so determined that have now arisen. As is pointed out at page 5 of the judgment of the 11th March, there were three real issues in contention at that stage. The first was the scope of the computers in respect of which inspection was to be allowed; second was the terms of the confidentiality undertakings to be given by the experts; and third was the circumstances and, in particular, the location in and at which access was to be given. Item 2 is no longer a matter of contention, but in a sense both items 1 and 3 are, in the context of the disputes that have now arisen.

13 In the course of determining the first question, I indicated that certain computers did not appear to me to be relevant, but that three of the computers, which had already been the subject of investigation by the defendant company, appeared to remain relevant and that access should be given to them. I also ruled that the plaintiff should have access, subject to a significant caveat, to the computers of the two joint managing directors, that caveat is as set out at page 8. It was to the effect that such access should only be to the extent...