The High Court has dismissed a motion by John Bergin to redact material from a company petition and have the proceedings heard in camera. The ruling dealt only with that motion; it did not determine the underlying petition brought by Mark Edmond Doyle under section 205 of the Companies Act 1963.
Doyle’s petition, presented on 18 March 2010, alleges that Skytours Travel Limited’s affairs were conducted oppressively towards him as a member. He seeks an order requiring Bergin or the company to buy his shares at a value to be determined by the court. The judgment records that Doyle held 1,580 of the company’s 30,000 shares and Bergin held 28,420, subject to a possible typographical error in the petition.
Bergin’s motion sought a private hearing and redactions to references to private information he said he had given Doyle as his solicitor. He argued that the material was protected by legal professional privilege. An alternative request to stay proceedings was not pursued at the hearing.
The dispute centred on emails sent on 8 February 2010, including an auditor’s partner’s email to Bergin and an attached internal memorandum. The memorandum discussed possible offences and the auditors’ statutory reporting obligations. It referred to Bergin’s October 2008 voluntary disclosure to the Revenue Commissioners concerning undisclosed income from two deposit accounts operated between March 1997 and May 2006. The judgment records that the company later settled with Revenue and that the combined amount Bergin had appropriated for personal use and the company’s settlement was just short of €2.4 million.
Justice Laffoy found that the communications did not qualify for the claimed privilege against Doyle. In context, she considered he received the information as a company director entitled to it, rather than as Bergin’s lawyer. The judge also noted that Doyle had not acted, or agreed to act, as lawyer on the matter and had raised a conflict of interest. She said the privilege claim could not be used to defeat the statutory claim based on the alleged appropriation.
The court also rejected the request for a private hearing. It found the statutory threshold was not met: publication of the information had not been shown to be seriously prejudicial to the company’s legitimate interests. The court therefore could not exercise its discretion under section 205(7) to sit in camera. The motion was dismissed.