The High Court has refused to remove most of a disputed affidavit from evidence in a petition to wind up QRD Development Company No. 3 DAC. It ordered one email dated 26 May 2021 deleted from an exhibit because it was protected by without-prejudice privilege. The court did not decide whether the company owes the claimed debt or whether to wind it up.
CW O’Brien Architects says QRD owes it €299,393.47 for five invoices for architectural services connected with a development site at Cookstown Industrial Estate, Dublin 24. QRD denies owing the money and says, among other things, that the services were not requested by it and that it may set off losses it attributes to alleged negligence concerning a Declaration of Identity. The judgment says those defences were not for determination on this motion.
The motion concerned paragraphs 12 to 23 of an affidavit by architect Arthur O’Brien and Exhibit AOB10. The disputed material described correspondence after negotiations in May 2021. The parties had discussed a proposed €200,000 payment from sale proceeds in exchange for CW O’Brien not proceeding with a winding-up petition. The company’s solicitors sent a revised draft undertaking on 27 May. The next day, CW O’Brien’s solicitors said the petition would not issue or be advertised before 14 June, relying on the commitment to provide a signed undertaking once the site sale became unconditional.
Justice Eileen Roberts found that the exchange amounted to an agreement to resolve the dispute on the undertaking’s stated terms. But the undertaking depended on an unconditional binding sale contract and other conditions; the judgment records that this precondition had not occurred by 24 September 2021. The court also said there was no evidence that the company had failed to provide an undertaking after its conditions were met, and rejected the petitioner’s estoppel argument on that basis.
The court concluded that the agreement ended the without-prejudice character of later discussions. It therefore refused to strike out paragraphs 12 to 23, allowing QRD to respond to them in a replying affidavit before the winding-up petition is heard. It directed that the first email dated 26 May be deleted from Exhibit AOB10. The court said the remaining material would assist it at the petition hearing, where the debt and the petition’s merits remain to be determined.
The court gave the parties six weeks to provide written submissions on the final order, costs and any other matters, and listed the case for mention on 11 October 2022.