Redfern Ltd v O'Mahony

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice Finnegan
Judgment Date04 March 2009
Neutral Citation[2009] IESC 18
Docket Number[S.C. Nos. 250 and 251 of 2008]
Date04 March 2009
Redfern Ltd v O'Mahony & Ors

BETWEEN

REDFERN LIMITED
PLAINTIFF/RESPONDENT

and

LARRY O'MAHONY AND THOMAS MCFEELY
FIRST AND SECOND NAMED DEFENDANTS

and

LIAM CARROLL AND TAFICA LIMITED
THIRD AND FOURTH NAMED DEFENDANTS/APPELLANTS

and

AIFCA LIMITED
FIFTH NAMED DEFENDANT

[2009] IESC 18

Denham J.

Geoghegan J.

Finnegan J.

250 and 251/2008

THE SUPREME COURT

RSC O.31 r19

FYFFES PLC v DCC PLC & ORS 2005 1 IR 59 2005/26/5447 2005 1 ILRM 357

HOLLANDER DOCUMENTARY EVIDENCE 9ED 2006 PARA 19.30

MATTHEWS DISCLOSURE 3ED 2007

KERSHAW v WHELAN 1996 1 WLR 358 1996 2 AER 404

PARAGON FINANCE PLC (FORMERLY NATIONAL HOMELOANS CORP PLC) & ORS v FRESHFIELDS (A FIRM) 1999 1 WLR 1183

GOLDBERG & ORS v NG & ORS 1994 33 NSWLR 639

SMURFIT PARIBAS BANK LTD v AAB EXPORT FINANCE LTD 1990 1 IR 469 1983/3/730

ANDERSON v BANK OF BRITISH COLUMBIA 1875-6 2 LR CH D 644

HONG KONG BANK OF AUSTRALIA v MURPHY 1993 2 VR 419

TELSTRA CORP LTD & ANOR v BT AUSTRALASIA PTY LTD & ANOR 1998 156 ALR 634

LIQUORLAND (AUSTRALIA) PTY LTD v ANGHIE UNREP VSC 4.4.2003 2003 VSC 73

DATA ACCESS CORP v POWERFLEX SERVICES PTY LTD 1994 AIPC 91

WARDROPE v DUNNE 1996 1 QD R 224

HAYES & ANOR v DOWDING & ORS 1996 PNLR 578

NEDERLANDSE REASSURANTIE GROEP HOLDING NV v BACON & WOODROW (A FIRM) (NO 1) 1995 1 AER 976 1995 2 LLOYDS 77

R v SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD & ORS (NO 5)(DISCOVERY) 1997 9 ADMIN LR 591 1997 COD 432

FARM ASSIST LTD (IN LIQUIDATION) v SECRETARY OF STATE FOR ENVIRONMENT 2008 AER (D) 124 (DEC) 2009 BLR 80 2009 PNLR 16

AMPOLEX LTD v PERPETUAL TRUSTEE CO (CANBERRA) LTD & ORS 1995 37 NSWLR 405

1

Judgment of Mr Justice Finnegan delivered on the 4th day of March 2009

2

This appeal concerns the decision of the High Court on two applications for inspection of documents pursuant to Order 31 Rule 19 of the Rules of the Superior Courts, one being an application by the appellants and the other an application by the respondent. The appellants' motion sought inspection of an opinion of senior counsel in respect of which a claim of privilege is made. The respondent's motion sought inspection of all documents discovered by the appellants in respect of which privilege is claimed which evidence the seeking and/or receipt of legal advices. Each of the motions involve consideration of aspects of waiver of legal professional privilege. The learned High Court judge ordered inspection on the respondent's motion and refused to order inspection on the appellants' motion. The appellants appeal each of these orders.

3

For the purposes of this judgment it is necessary to set out the complex factual matrix giving rise to the proceedings and for ease of reference I propose to apply the following definitions:-

4

Redfern Limited (hereinafter "Redfern")

5

Lowe Taverns (Tallaght) Limited (hereinafter "Lowe")

6

Alburn (hereinafter "Alburn"). Alburn is an unlimited company and is a wholly owned subsidiary of Redfern.

7

Larry O'Mahony and Thomas McFeely (hereinafter called "the partners"). The partners were at material times entitled to the entire issued share capital in Lowe.

8

Aifca Limited (hereinafter "Aifca"). Aifca is a wholly owned subsidiary of Lowe and (on what basis this court is not told) enjoys the sub-licence vested in Lowe.

9

Liam Carroll. Liam Carroll is beneficially entitled to the entire issued share capital in Tafica Limited.

10

Tafica Limited (hereinafter "Tafica").

11

Agreement dated 4 th August 2005 made between Redfern of the one part and the Partners of the other part (hereinafter "The Alburn Agreement").

12

Agreement made between Aifca of the one part and Liam Carroll of the other part (hereinafter "The Aifca Agreement").

13

Agreement dated 31 st July 2003 made between Square Management Limited of the one part and Alburn of the other part (hereinafter "The Joint Venture Agreement").

14

The Square, Tallaght, Co. Dublin is a major shopping and commercial development. The development was carried out on lands held under two leases, a lease dated 8 th September 1988 and made between the Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin of the first part, the County Council of the County of Dublin, of the second part and L & C Properties Limited of the third part, and a lease dated 1 st August 1989 and made between Guardian Assurance Plc of the first part, the Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin of the second part, the County Council of the County of the County of Dublin of the third part, and L & C Properties Limited of the fourth part. The leases, in addition to demising premises, granted a licence over premises which are now a surface car park part of the overall The Square development. The lessor's interest under the lease is now vested in South Dublin County Council and the lessee's interest is vested in Square Management Limited. Lowe is entitled to a sub-licence in the car park pursuant to a licence dated 25 th October 2001 and which sub-licence is enjoyed by Aifca.

15

Square Management Limited and Alburn entered into the Joint Venture Agreement dated the 31 st day of July 2003, the object of which was to develop the car park. For the development to take place it is necessary that all licences over the car park should be extinguished. Square Management Limited agreed to extinguish it's licence, it being entitled to do so under the terms of the leases. However if the development is to proceed it is necessary that Lowe's sub-licence should also be extinguished and to achieve this the Alburn Agreement was entered into on the 4 th August 2005 between the partners of the one part and Alburn of the other part. By the Alburn Agreement the partners agreed to dispose of the entire issued share capital in Lowe to Alburn in exchange for the allotment of shares in Alburn to the partners. Completion of the Alburn Agreement is essential if the development of the car park is to proceed.

16

On the 13 th July 2007 Redfern instituted these proceedings against the partners claiming inter alia a declaration that the Alburn Agreement is valid and subsisting and seeking specific performance of the same. The defence delivered by the partners did not deny the existence of the agreement but pleaded that Alburn had been guilty of unreasonable delay and laches and that as a result of Alburn's conduct it is estopped from seeking to complete the Alburn Agreement. Delay by Redfern in completion of the Alburn Agreement caused Lowe's financial position to deteriorate resulting in it's lenders calling for repayment of borrowings failing which the lenders' security would be enforced. In consequence it was necessary for the partners to seek alternative funding. Alternative funding was achieved by Aifca entering into the Aifca Agreement with Liam Carroll whereby Tafica would subscribe for 50.25% of an increased issued share capital in Aifca. In consequence the partners no longer control Aifca. Redfern promptly joined Liam Carroll, Tafica and Aifca as defendants and delivered amended pleadings. Against Liam Carroll and Tafica it is pleaded that they entered into the Aifca Agreement with the intention of interfering with the due performance of the Alburn Agreement and/or of inducing the partners to breach the Alburn Agreement. The defence of Liam Carroll and Tafica denies that they interfered with, induced or procured a breach of the Alburn Agreement. They plead that the Aifca Agreement was so designed specifically to ensure that there would be no breach of the Alburn Agreement. They plead in paragraph 13 of the defence as follows:

"Even if the Redfern Agreement subsisted at the time of the execution of the Aifca Agreement (which is denied), the third and/or fourth named defendants deny that they had any intention to induce a breach of and/or interference with the performance of the (Alburn) Agreement. In the premises, the third and/or fourth named defendants were expressly cautious to ensure that if the Redfern Agreement did subsist then the clauses of the Aifca Agreement should and did acknowledge and honour the obligations of the first and/or second named defendant under the Redfern Agreement should that Agreement be completed."

17

In the context of the appeal against the order of the High Court granting inspection to Redfern the phrase "expressly cautious to ensure" is central.

APPEAL AGAINST THE ORDER OF THE HIGH COURT REFUSING THE APPELLANTS INSPECTION OF REDFERN'S PRIVILEGED DOCUMENT: APPEAL NO. 250/2008
18

The discovery of Redfern disclosed an opinion of senior counsel dated 8 th February 2007 and privilege was claimed in relation to the same. The appellants by motion sought inspection of the opinion. Inspection was sought on the basis that the claim to privilege in respect of the opinion had been waived by Redfern furnishing a copy of the opinion to Thomas Dowd, Chairman of Square Management Limited board committee with responsibility for implementation of the Joint Venture Agreement and to Eoghan Clear, solicitor to South Dublin County Council. The sole issue on this appeal is whether that disclosure of the opinion amounts to a waiver of privilege.

19

For the appellants it is submitted that the membership of Square Management Limited consists of all lessees in The Square development. Potentially, therefore, the disclosure to Mr Dowd represented a very wide disclosure. Similarly the disclosure to Eoghan Clear represented a very wide disclosure as each member of South Dublin County Council could request sight of the same.

20

The appellants rely upon Fyffes Plc v DCC Plc and Others [2005] 1 I.R. 59 as authority. It was there held that legal professional privilege was absolute and the court had no discretion to displace it. Privilege might be lost where it was expressly...

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