Ulster Bank Ireland Designated Activity Company v Dermot Brennan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 16 April 2021 |
| Neutral Citation | [2021] IEHC 324 |
| Date | 16 April 2021 |
| Docket Number | [2017 No. 1171 S] |
| Court | High Court |
[2021] IEHC 324
[2017 No. 1171 S]
THE HIGH COURT
Preliminary issue – Privilege – Discovery – Defendant seeking determination by way of preliminary issue – Whether email attracted legal professional privilege
Facts: The defendant, Mr Brennan, sought a High Court determination by way of a preliminary issue in relation to the claim of the plaintiff, Ulster Bank Designated Activity Company, of privilege over an email dated 22nd of October 2019 from the solicitors on record for the plaintiff to Link ASI Ltd. The preliminary issue related to the substantive proceedings which was the plaintiff’s motion for summary judgment against the defendant. The defendant averred and confirmed that he entered into correspondence with the plaintiff seeking an explanation as to the identity of the client in the case, but was met with a claim for privilege. In those circumstances, the defendant had not been furnished with an explanation or with any information as to the nature of the relationship between Ulster Bank and Promontoria (Aran) Ltd other than the averment by Mr McKeever of Link ASI Ltd which was at odds with the contents of the email.
Held by Creedon J that the email that was the subject matter of the application was a standalone document which could be considered by the Court in isolation of the thread of emails in which it was found. The Court was further satisfied that the email raised a question as to the identity of the client in the case. The Court was satisfied that in accordance with the authority of Miley v Flood [2001] 2 IR 50 the information contained in the email was what is termed as a collateral fact and was in the nature of information passing for the purposes of securing legal assistance and was not a communication made for the purposes of obtaining legal advice during the course of active litigation. Creedon J found that this aligned with the finding of Kelly J that Irish law does not recognise the concept of client identity privilege as the question of a client’s identity is nothing more than a collateral fact and not relevant in general to the matter of legal advice being sought. Creedon J held that the chronology of events did not substantiate the claim that the application was brought in order to obfuscate true issues or for the purposes only of delay, and it was clear that the plaintiff had the opportunity to respond to the defendant’s correspondence in a manner which would have avoided the necessity of the application. The Court was further conscious of the confined nature of summary judgment proceedings and accepted the defendant’s arguments that he proceeded appropriately and reasonably and that in the context of summary proceedings the defendant’s only option was to seek an explanation in correspondence.
Creedon J determined the preliminary issue by finding that the email did not attract legal professional privilege and was discoverable. Creedon J held that the defendant’s costs in respect of the application should be reserved to the hearing of the action.
Preliminary issue determined.
RULING of Ms. Justice Creedon on a preliminary issue on privilege delivered on the 16th day of April, 2021
This preliminary issue came before the Court by way of Notice of Motion on behalf of the defendant for a determination by way of a preliminary issue in relation to the plaintiff's claim of privilege over an email dated 22nd of October 2019 from the solicitors on record for the plaintiff to Link ASI Ltd.. This preliminary issue related to the substantive proceedings which is the plaintiff's motion for summary judgment against the defendant.
The defendant opened the application before the Court by outlining the background to the application, and then opened to the court the affidavit of Mr. Stephen O'Connor, solicitor, who acts for the defendants in the within proceedings dated the 1st day of March 2021.
Mr. Stephen O'Connor averred inter alia that one of the issues that had been raised by the defendant in the affidavits sworn by him in opposing the plaintiff's motion for summary judgment relates to the role of Promontoria (Aran) Ltd. (“PAL”) in giving instructions and directing enforcement in relation to its loans and related securities. The defendant further averred that the plaintiff asserts that there has been no formal assignment of the loans and securities by the plaintiff to PAL, that PAL have acquired a beneficial interest only and that the plaintiff remains the legal owner and contracting party in respect of the loans and related security.
Mr. O' Connor averred further that the defendant contended that if that is so, then PAL has no legal or contractual entitlement to direct or instruct any action or enforcement against the defendant and that any action or enforcement that has been taken against the defendant on the instructions or at the direction of PAL including for example, the issuing of demand letters, is unlawful and in breach of contract.
Mr. O' Connor avers further that on the 21st October 2020 the solicitors on record for the plaintiff sent a folder of documentation to his office for the purposes of the application for a hearing date on the following day. He avers that the folder contained behind Tab C a number of items of “without prejudice” correspondence between an agent of the defendant and Link ASI Ltd, who the plaintiff describes as its servicer. He avers that the documentation behind Tab C also included emails between the solicitors on record for the plaintiff and Link Asset Services, one of which was dated the 22nd October 2019.
He avers further that it is in relation to that email of the 22nd October 2019 that the defendant now seeks a determination of this honourable court in relation to privilege. That email is exhibited to his affidavit.
Mr. O' Connor went on to aver that following receipt of the folder of documents his office wrote to the solicitors on record for the plaintiff expressing their concern at the inclusion of the without prejudice communications and related without prejudice documentation between the plaintiff's advisor and Link ASI Ltd. He averred that by email and response, the solicitors on record for the plaintiff apologised and requested that he remove section C from the folder and indicated that a copy of the folder had not been provided to the court.
Subsequently, the plaintiff filed a further affidavit sworn by Mr Stephen McKeever of Link ASI Ltd. on the 8th of December, 2020, to which he referred which included the following averments at paras. 35 and 36 under the heading “The position of PAL”.
“As at the date of the swearing of this affidavit the position remains as outlined in my second affidavit. In particular, it remains the case that (a) no assignment of the legal interest in the loans to PAL has been agreed or affected (b) the legal interest in the loans continues to be held by the plaintiff and (c) the decisions in relation to the enforcement of the loans are ultimately taken by the plaintiff. In this regard I believe and am advised that there is nothing improper with the plaintiff consulting with PAL in its capacity as the entity holding the beneficial interest in the loans, in relation to decisions concerning the enforcement of the loans. In particular I believe and am advised by the solicitors for the plaintiff that any such engagement between the plaintiff and PAL does not have the effect of assigning the legal interest in the loans to PAL or otherwise disturbing the contractual relationships between the plaintiff and the defendant”.
Mr. O' Connor further averred that by letter dated the 15th of February 2021 his office wrote to the solicitors on record for the plaintiff seeking an explanation for the apparent contradiction between the contents of the email of the 22nd October 2019 and the evidence adduced by the plaintiff on affidavit. He avers that by letter dated the 16th February 2021 the solicitors on record for the plaintiff inter alia asserted privilege over the email of the 22nd of October 2019 and that further correspondence was exchanged on the 18th February and 24th February 2021 ultimately leading to this application to have the question of privilege determined by the court as a preliminary issue.
Mr. O'Connor averred that the email of the 22nd of October 2019 is relevant to a central issue in the plaintiff's application for summary judgment that is currently before the court and it is not a document in respect of which privilege can be claimed.
The defendant also opened the affidavit of Ms Sinead Power, solicitor and partner in the firm of Mason Hayes and Curran, the firm acting for the plaintiff in the above entitled proceedings which she makes for the purposes of resisting the application of the defendant and by way of reply to the affidavit of Mr. Stephen O'Connor.
She averred inter alia that the folder of documentation behind Tab C was in fact intended to be a booklet of papers for use by the High Court but the booklet inadvertently included a Section C. She averred that Section C had originally formed part of a brief to counsel and would never have formed part of a booklet of papers for court containing as it did communications which are subject variously to “without prejudice” privilege and legal professional privilege. She averred that it is apparent from the solicitors for the defendants' letter dated the 21st October 2020 that that firm reviewed the documentation in Section C on receipt as they noted it contained “without prejudice communications and related without prejudice documentation”.
She averred further that the matter rested there until the 15th of February 2021 nearly four months later, when her firm received a letter from the plaintiff's solicitors seeking to place reliance upon the contents of the email....
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