The High Court has ordered disclosure of a transcript of an examination concerning the Walford property, finding that litigation privilege had not been established. It also ordered disclosure of three emails and directed limited redactions to a legal letter in related proceedings.
Mr Justice Robert Haughton delivered the ruling on 19 December 2018 in two related commercial proceedings involving the Official Assignee in Sean Dunne’s bankruptcy, Yesreb Holding and Celtic Trustees Limited. The ruling concerned challenges to claims of privilege over documents, not the underlying dispute about ownership of Walford, 24 Shrewsbury Road, Dublin.
The transcript records an examination of Caroline Crowley under section 21 of the Bankruptcy Act 1988, held at the Official Assignee’s office on 28 October 2014 following a court order. The Official Assignee said he had been contemplating litigation over Walford and related asset transfers since 2013 or early 2014. The High Court accepted that litigation was in contemplation, but found the examination was still at an investigative stage and that its dominant purpose was not shown to be litigation. Proceedings over Walford began in December 2016.
The judge also found no evidence that the interview was conducted under conditions of confidentiality. The court order had not directed a private examination, and no separate order under section 134 of the 1988 Act had been sought to hold proceedings in private. Haughton said the transcript must be disclosed.
In the Celtic proceedings, the court rejected privilege claims over three emails Sean Dunne sent to Dermot Desmond in February 2017. The judge found that neither sender nor recipient was a party to the proceedings and that there was no sufficient basis to treat Desmond as Celtic’s agent for privilege purposes. Common interest privilege did not apply, and the emails must be disclosed.
The court considered two further documents described as a legal advice letter and its draft, relating to the proposed purchase of Walford in 2011. For the letter dated 21 October 2011, Haughton found that most of the material was legal assistance rather than privileged legal advice. He permitted redaction of advice at paragraph 1.g(v) and a section headed “Costs”, and directed disclosure of the remainder.
The court record said the fifth document, described as a draft dated 17 November 2011, appeared instead to be a second copy of the 21 October letter. The judge said the same redactions would apply if it was a similar document. The ruling did not decide the competing claims to ownership of Walford.