The High Court has ruled that Kevin Delappe was entitled to access a solicitor’s 6 May 2021 email to David Brock, because the advice was given to Brock on behalf of Brock Delappe Limited and concerned issues between Delappe and the other shareholders. The court rejected Delappe’s claim that the other disputed documents showed a strong prima facie case of fraud or iniquity that would remove legal privilege.
The ruling, delivered by Mr Justice Mark Sanfey on 18 April 2023, arose from an application by Brock, Declan Cosgrave and the company to restrict Delappe’s use of documents he had exhibited in an affidavit in his separate proceedings under section 212 of the Companies Act 2014. Delappe alleges in those proceedings that Brock and Cosgrave conducted the company’s affairs oppressively and disregarded his interests as a member. Those allegations remain for the trial judge; this ruling did not determine them.
The documents included emails about a possible redundancy process for Delappe, the Cabra office, his shares and potential litigation. The respondents claimed the documents were privileged and had been obtained through unauthorised access to Brock’s work email. Delappe argued that he was entitled to company legal advice as a director and shareholder, and that the advice was connected to a sham redundancy plan. The parties disputed the circumstances of his access, which the judge said he could not resolve on affidavit evidence.
The judge found that Brock’s 29 April 2021 request for advice contemplated a possible challenge to Delappe’s redundancy against the company, and was privileged. But the 6 May email primarily addressed minority oppression and the shares, matters directed at Brock and Cosgrave’s interests rather than the company’s. The solicitor had said she was advising the company at that time, and there was no evidence that Brock or Cosgrave had sought that advice in their personal capacities. Delappe, as a director and shareholder, could therefore access it. The judge said the email was not improper, while leaving open whether it contributed to oppression for the trial judge to decide.
The court held that the remaining documents were privileged and that Delappe had not established the strong prima facie case of iniquity required to set privilege aside. The judge said the documents did not establish that the proposed redundancy was a sham, even though there was a basis to allege it could lead Delappe to consider selling his shares. The court also found no basis to conclude that the disputed emails showed the required level of dishonesty or moral turpitude.
The judge did not make final orders on the respondents’ wide-ranging motion. He directed the parties to try to agree the appropriate orders and costs. If matters remained unresolved, they were to file written submissions; the court would then rule or hold a short hearing. The judgment did not decide the underlying oppression claim.