Court allows defendants' privilege claim over documents created for regulatory and investigative purposes.

Neutral Citation [2015] IEHC 315

THE HIGH COURT

COMMERCIAL

[2011 No. 4336 P.]

BETWEEN

CIARA QUINN, COLETTE QUINN, BRENDA QUINN, AOIFE QUINN, SEÁN QUINN JR., AND PATRICIA QUINN WAECHTERPLAINTIFFS

PLAINTIFFS

AND

IRISH BANK RESOLUTION CORPORATION LIMITED AND

KIERAN WALLACE

DEFENDANTS

AND

SEÁN QUINN, DARRAGH O’REILLY AND LIAM MCCAFFREY

THIRD PARTY

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 19th day of May, 2015

1. This is an application for further and better discovery. Very extensive discovery has already been made between the parties in

these proceedings which are listed for hearing on 3rd June and are expected to last for between four and six months.

2. The issue surrounding the disputed documents in this motion is a claim of privilege made by the defendants. The defendants accept

that as they are raising the issue of privilege, the burden is on them to establish that right. They also accept that they must

establish that the dominant purpose for the creation of the documents in issue was the contemplation of further litigation or for the

purpose of two investigations, one by the Financial Regulator and the other at the instigation of the Office of Director of Corporate

Enforcement. The first defendant became aware of the investigation by the Financial Regulator sometime in the middle of 2008 and

from 19th December, 2008, it became aware of the ODCE investigation. It claims privilege in relation to documents generated for the

purpose of dealing with inquiries and issues arising out of these investigations.

3. The court was referred to the case of Ahern v. Mahon [2008] 4 I.R. 704, as authority for the proposition that privilege can be

claimed in respect of such inquiries or investigations and that privilege can be asserted over documents created for the purpose of

those investigations. The first defendant asserts that from 19th December, 2008, it was entitled to assert what it called litigation or

investigatory or regulatory privilege in respect of any documents brought into being for the dominant purpose of engaging with those

regulatory and investigative processes. I accept that submission. It does not follow that all documents created after that date are

privilege but merely those generated for the dominant purpose that I have outlined above.

4. The original number of documents in dispute was approximately 3,200 but after engagement between the solicitors for the plaintiffs

and the defendants, these were reduced to approximately 170 documents plus eleven newly challenged documents. Having discussed

with counsel the most efficient methodology for dealing with the issue of privilege it was agreed that counsel for the defendants

would take me through the documents in dispute outlining in general terms what they were and enabling me to look at each document

as counsel put it in context. Counsel for the plaintiff would not, in any event, have been able to look at the documents if I had

reviewed them in my chambers. But he was in a position to hear the exchanges between counsel for the defendants and the court as

to why, in each case, privilege was asserted. In any event, a detailed schedule of the documents and the reasons for the privilege

claims has already been furnished by the solicitors for the defendants to the plaintiffs’ solicitors.

5. There were a number of documents in respect of which I held that a further affidavit should be delivered. These are documents set

out in Tab 109, 147, 148 and 153, in the book of documents furnished to the court and also an email from Mr. David Drumm of 14th

April, 2008. It was also agreed that I would look at the other eleven documents furnished in a separate book and decide on whether

or not they are privileged having regard to the issue set out above.

6. I will deal with the general documentation first. That is the documentation other that those to be found in Tab 109, 147, 148, 153

and the book containing eleven documents. I am satisfied having looked at those documents and considered the basis for the

assertion of privilege by the defendants that they are documents which were generated for the dominant purpose of engaging with

the regulatory and investigative processes involving the Financial Regulator and the ODCE and that, therefore, the defendants are

entitled to assert privilege over those documents.

7. I have read the eleven additional documents which were furnished in a separate file and I have considered the detailed explanation

of each of these documents and the reason for the privilege claim set out in the supplemental affidavit of Ms. Karyn Harty sworn on

15th May, 2015. Having considered the documents and the explanations set out in that affidavit, I am also satisfied that the

defendants are entitled to assert privilege over those eleven documents for the reasons set out in the affidavit.

8. The affidavit of Ms. Harty also deals with five documents in respect of which the court requested further information. I am satisfied

for the reasons set out in her affidavit that the privilege asserted is maintainable. I note that in respect of a small number of

documents, privilege is no longer being maintained as is set out in paras. 25, 26 and 27 of her affidavit.