Quinn v Irish Bank Resolution Corporation Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Robert Haughton |
| Judgment Date | 20 February 2019 |
| Neutral Citation | [2019] IEHC 89 |
| Court | High Court |
| Docket Number | [2011 No. 4336 P.] |
| Date | 20 February 2019 |
[2019] IEHC 89
THE HIGH COURT
THE COMMERCIAL COURT
Haughton Robert J.
[2011 No. 4336 P.]
AND
AND
AND
Privilege – Disclosure – Documents – Defendant seeking to challenge privilege asserted by the plaintiffs in respect of certain discovered documentation – Whether the plaintiffs were entitled to assert and maintain legal professional privilege over the documents
Facts: The first defendant, Irish Bank Resolution Corporation Ltd (IBRC), challenged privilege asserted by the plaintiffs, Mses and Mr Quinn, in respect of certain discovered documentation. These fell within essentially two categories of non-party discovery ordered by McGovern J against Mason Hayes & Curran (MHC), the plaintiffs’ former solicitors, on 14th May, 2015. In accordance with the order of Haughton J dated 31st July, 2018, a list of documents (List 1), extracted from the MHC Category A and Category B privileged discovery schedules, was duly delivered by IBRC, and the plaintiffs delivered their response, in the form of List 2 (all other MHC documents over which they continued to assert privilege). IBRC disputed the privilege being maintained in List 2. Haughton J, in an ex tempore ruling on 19th December, 2018, limited a period until 21st January, 2019, for the plaintiffs to supply fuller descriptions. List 2 with further document description was duly delivered by the plaintiffs on 21st January, 2019. Arising from that IBRC had continuing concerns relating to: (i) 116 documents which it was asserted were still not adequately identified; (ii) an overly narrow interpretation by the plaintiffs of “transaction” in the context of related or connected non-disclosed documents; and (iii) the plaintiffs’ requirement that IBRC demonstrate specific litigation disadvantage or unfairness. In ease of the court, IBRC limited their dispute as to privilege to 313 documents out of an original 1,066 arising under Category A discovery, 73 documents out of a total 1,684 documents in Category B, and the 116 ‘inadequately described documents’.
Held by the High Court (Haughton J) that, having applied General Accident Fire and Life Assurance Corporation Ltd v Tanter [1984] 1 All ER 35 in inspecting of all of the documents/disputed documents, the plaintiffs were entitled to assert and maintain legal professional privilege over all of those documents save to the extent indicated hereafter. In respect of several of the disputed documents it became clear that those should not attract privilege at all, and Haughton J directed their disclosure.
Haughton J ordered disclosure of the following documents: “Inadequately Described Documents”: Cat. A: None; Cat. B: Doc.82 (0.7.45.74812); “Category A”: Doc.2 (0.7.45 56943-00001); Doc.139 (0.7.45.41552-000001) - unless it is an unsent draft; Doc. 142 (0.7.4 5.25592); Doc.143 (0.7.4 5.25592 – 000001); Doc. 323 (0.7.45.9528); Doc. 491 (0.7.4 5.60490 – 00001) (Questionnaire scheduled to telephone attendance of 14th May, 2010); “Category B”: Doc. 534 (0.7.45.13341); Doc. 538 (0.7.45.25947); Doc. 541 (0.7.45.26050); Doc. 542 (0.7.45.27028); Doc. 551 (0.7.45.75445); Doc. 552 (0.7.45.75453); Doc. 616 (0.7.45.9589); Doc. 1155 (0.7.45.43214-000001) – unless it is an unsent draft; Doc. 1156 (0.7.45.43214-000002).
Judgment approved.
This ruling follows on, and should be read with, the Judgment and Order that I made on 31st July, 2018, in respect of the first named defendant's (“IBRC”) challenge to privilege asserted by the plaintiffs in respect of certain discovered documentation. These fall within essentially two categories of non-party discovery ordered by McGovern J against Mason Hayes & Curran (“MHC”), the plaintiffs’ former solicitors, on 14th May, 2015:
“(a) Documents relating to any lending (including the provision of any security referable to that lending) by Anglo Irish Bank to Ciara Quinn, Collette Quinn, Sean Quinn Junior, Aoife Quinn, Brenda Quinn or Patricia Quinn or any of them, or companies of which they were individually or collectively beneficial owners, which were created or provided to MHC between 1st April 2010 and 1st March 2011 and which have not been already discovered in these proceedings by the plaintiffs or any other non—parties;
(b) Documents generated between 2008 to 2010 relating to the Quinn CFD position built up in shares of Anglo Irish Bank Corporation Ltd (the Quinn CFD position), the closeout of the Quinn's CFD position and the proposed reorganisation of the Quinn family interests, including but not limited to documents referring to the insider dealing provisions of the Market Abuse (Directive 2003/6/EC) Regulations in connection with the aforesaid;
(c) Any notes or memoranda associated with the documents described in 1 (a) and 1 (b) above.”
In the order dated 31st July, 2018, I directed as follows:-
“1. By reference to the Disclosed Privileged Documents (arising from the Plaintiffs’ discovery) being documents disclosed by the Plaintiffs, contained on the CD enclosed with the letter from CP Crowley Solicitors to McCann FitzGerald Solicitors dated the 9th day of July 2014, the First Named Defendant shall compile a list of documents (‘List 1’), extracted from the Mason Hayes & Curran (‘MHC’) Category A and Category B privileged discovery schedules (attached to the Further Supplemental Affidavits of Discovery sworn by Justin McKenna on the 4th day of October 2016 and Niamh Callaghan on the 6th day of October 2016), of documents that are potentially part of a ‘transaction’ evident from the Disclosed Privileged Documents (being, for example, a string of emails or other documents, or related documents, by reference to date, parties, subject/file so far as these can be ascertained from the MHC descriptions). The objective of this exercise is to identify MHC privileged documents which, if not disclosed, would result in the disclosed privileged documents giving such a partial, incomplete and misleading picture (by virtue of the disclosed privileged documents) as would be unfair to the First Named Defendant.
2. List 1 shall be delivered by the First Named Defendant to the Plaintiffs’ Solicitors within two weeks of the date of this Order.
3. The Plaintiffs shall deliver their response to List 1 within four weeks of receipt: —
(a) producing copy MHC privileged documents over which they decide to waive privilege, and
(b) in respect of all other MHC documents over which they continue to assert privilege, setting out in detail in a list (‘List 2’) a full description of the subject matter of the document, short of disclosing the substance of privileged legal advice, but sufficient to identify whether its contents may or may not be related or linked or similar to any transaction the subject of the Disclosed Privileged Documents, and stating why the Plaintiffs continue to assert privilege.
For the avoidance of doubt, to the extent that the Plaintiffs fail to respond to any documents in List 1, or default in complying with the above direction, they shall be deemed to have waived privilege and shall produce such documents forthwith.
(c) upon receipt of List 2, the First Named Defendant shall have three weeks within which to challenge/debate the privilege claimed (whether because the document does not attract privilege at all, or because privilege has been lost by virtue of its relationship to a “transaction” reference in the Disclosed Privileged Documents).
4. This Motion shall be adjourned for mention only to Monday 12th November 2018.
5. In the event, and to the extent that the First Named Defendant wishes to further dispute privilege maintained by the Plaintiffs over List 2 documents, the First Named Defendant shall furnish a further grounding before the 26th day of October 2018 and any replying Affidavit to that grounding Affidavit of the First Named Defendant shall be filed by the Plaintiffs on or before the 9th day of November 2018.”
In accordance with my Order List 1 was duly delivered by IBRC, and the plaintiffs delivered their response, in the form of List 2. IBRC further disputed the privilege being maintained in List 2, and further correspondence ensued, resulting in the matter being listed before this Court on 19th December, 2018. On that date, the court considered written legal submissions of IBRC dated 5th December, 2018, and of the plaintiffs dated 14th December, 2018 and heard further legal argument. The main concerns of IBRC were:-
(i) that the plaintiffs’ List 2 proceeded on the basis of an “over-broad interpretation” of the concept of a ‘ transaction’ by reference to my judgment of 31st July, 2018;
(ii) the plaintiffs’ requirement that IBRC identify a specific litigation disadvantage or unfairness referable to a disclosed document in order for privilege to be lost;
(iii) inadequate description of some of the documents in List 2; and
(iv) the absence of information in List 2 in respect of 107 documents described by the plaintiffs as “illegible”.
In an ex tempore ruling on 19th December, 2018, I indicated that I wanted “…to reflect on the submissions that had been made in relation to what constitutes ‘a transaction’ and the approach that the court should take to the use of that term in my judgment of [31st July, 2018]”. However, I also took the view that List 2 failed to give a “full description of the subject matter of the documents…” in accordance with 3(b) of my order of 31st July, 2018, and accordingly, I limited a period until 21st January, 2019, for the plaintiffs to supply fuller descriptions, and indicated that I would not deliver any further ruling on the dispute until that had been done....
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