The High Court dismissed an application by Miranda Horgan, Collette Sweetnam and Ashwood Investments Limited to dismiss an interlocutory application by Ancorde Limited and Barry Harte, or to discharge the applicants’ undertakings to the court, over a recording of a company board meeting.
The consolidated proceedings concern disputes between the Harte Parties and the Horgan Parties and Ashwood Investments. The court had heard applications for interlocutory injunctive relief and decided them on 31 May 2013, but its approved judgment was delivered on 6 June. Before that judgment was delivered, the Horgan Parties and the company sought the orders at issue in this separate application.
They alleged that the Harte Parties knowingly withheld the existence of a secret recording of the company’s 6 November 2012 board meeting during the earlier hearing. In an affidavit, Miranda Horgan described the recording as surreptitious and argued that its existence and contents were material, that there had been deliberate concealment and a lack of candour, and that the court had been misled.
Barry Harte’s affidavit said the recording was made by Hilary Haydon, who attended as the company’s financial adviser, and that Harte did not know it was being made. He said he had only recently learned of it. Horgan’s affidavit evidence identified matters in the transcript that she said supported her account of the meeting and the company’s affairs. The judge said the transcript and related evidence could help resolve conflicts at the substantive hearing, including who was the driving force in Ancorde.
The judge distinguished that potential significance at trial from the questions decided on the interim applications: a shareholder issue, a directorship issue and an issue concerning the company’s amended articles of association. She held that the events of 6 November were not material to those interim questions. The threshold for deciding whether there was a fair issue to be tried had been met based on events from 15 November 2012 onward, and the recording evidence would not have changed that conclusion.
Applying the principles on material non-disclosure and equitable relief, the judge found there had been no non-disclosure material and connected to the interim decisions. She dismissed the defendants’ application. The ruling did not decide the underlying disputes or determine what significance the recording would have at the substantive hearing.