Wheelock -v- O'Leary & Ors, [2015] IEHC 281 (2015)

Docket Number:2014 5751 P & 2014 142 COM
Party Name:Wheelock, O'Leary & Ors


COMMERCIAL[2014 No. 5751 P]

[2014 No. 142 COM]




JUDGMENT of Ms. Justice Costello delivered the 13th day of May, 2015

  1. These proceedings arise from an alleged extensive fraud which the plaintiff claims was perpetrated upon him by the defendants. It is alleged that they misappropriated his assets and income and in the process of doing so have falsified or caused to be falsified his signature on various documents including business documents, loan facility letters, security instruments, Revenue returns and other documents. He says that the first, second and third named defendants are a firm of accountants and professional business advisors practising under the style and title of Michael O’Leary & Company, accountants, tax and management consultants. He says that he reposed unqualified trust and confidence in Michael O’Leary personally and in his company from 1980 up until 2014. In particular he says that Michael O’Leary and/or Michael O’Leary & Company throughout this period controlled or managed all of his income derived from his profession as an engineer, controlled and/or managed all of his bank accounts, were responsible for all financial matters relating to an ancillary business of farming and growing Christmas trees, purchased land and properties on his behalf and collected all income derived from properties owned by him and dealt exclusively with his tax returns to the Revenue Commissioners as is more particularly set out in the Statement of Claim.

  2. The application before the Court was an application for discovery against the second and third named defendants (“the practice defendants”).

  3. The first named defendant is represented separately to the practice defendants. It is common case that the first named defendant was the founder of the practice Michael O’Leary & Company and the major, if not the 100%, equity owner of the partnership. The plaintiff has sought very extensive discovery against both the first named defendant and the practice defendants. The plaintiff and the first named defendant have reached an agreement as to the scope of the discovery which he will make and it is to be on the basis of the documents which are within his possession only. The plaintiff has reserved the right to revisit the discovery which will be made by the first named defendant to seek documents within the terms of the discovery agreed to those documents which are within his power or procurement. In this application the plaintiff proposes that the practice defendants should in the first instance make discovery on the same basis.

  4. It is for the moving party to establish that the discovery sought is relevant to the issues in the case and is necessary for disposing fairly of the cause or matter or for the saving of costs. The legal principles are well known and are agreed between the parties and I do not propose to restate them here.

  5. In respect of many of the categories of documents sought by the plaintiff, the practice defendants sought to limit the categories to those documents that were held by the practice of Michael O’Leary & Company. The practice defendants say that it was the first named defendant in his personal capacity largely who dealt with the business affairs of the plaintiff. They say that the first named defendant is the 100% equity owner of the practice (this is disputed by the plaintiff) and that he is the person intimately concerned with all of the allegations advanced by the plaintiff in this case. Quintessentially he is the appropriate person in the normal way to swear the affidavit for discovery on behalf of the practice. As he is separately represented from the practice defendants, the affidavit of discovery to be made by the practice defendants necessarily will have to be sworn by another defendant. It is unavoidable on the facts in this case that the first named defendant is the only person with the detailed and intricate knowledge of events and matters going back to 1980. They say that this is an important factor which the Court should bear in mind in exercising its discretion in making any orders for discovery against the practice defendants. The first named defendant will be making very extensive discovery on his own behalf and in respect of documents which are in his possession as the principal partner in (if not sole owner of) the practice.

  6. It is submitted by the practice defendants that as a matter of law and practice they do not have possession of the first named defendant’s personal documents or documents held in his personal capacity. It is only those documents which are practice documents which they can discover. They therefore say that many of these categories should be expressly confined to documents held by the practice Michael O’Leary & Company. The plaintiff is concerned that if the categories of documents are limited in this fashion, the practice defendants will not necessarily make as wide a discovery as ought, in the circumstances, to be made. Of necessity, discovery is a process of trust and the Court has to proceed on the basis that the professionals involved will properly advise their clients of their discovery obligations and ensure that, to the best of their ability, those obligations are faithfully carried out. The submission is predicated upon a fear that these obligations will not be carried out in a bona fide manner. I cannot proceed on the basis solely of a submission unsupported by evidence that this obligation will not be faithfully carried out.

  7. The plaintiff was more concerned with the possibility that if he was obliged to revisit the adequacy of the discovery made, with his agreement, solely on the basis of the documents in the possession of the practice defendants, that he would be limited in such discovery as he would then seek on the basis of documents which would be within the power or procurement of the practice defendants. I believe this concern is misconceived. The practice defendants could only ever be obliged to make discovery of documents in their possession, power or procurement. These must be confined therefore to the documents held by the practice or those which would be...

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