The Court of Appeal has set aside a High Court order requiring Bank of Ireland to produce privileged communications with its solicitors for inspection in a long-running employment dispute brought by former employee Orla McNulty.
In a judgment delivered on 21 March 2025, Mr Justice Allen said the High Court had focused on the nature of Ms McNulty’s allegations rather than the purpose for which the Bank engaged its solicitors. Justices Whelan and Meenan agreed.
Ms McNulty’s case includes an allegation that the Bank operated a duplicate accounting system at its Dublin Airport branch to understate turnover reported to its landlord, Dublin Airport Authority. The Bank contests that allegation. The Court of Appeal did not decide whether the alleged system existed or whether the data Ms McNulty relied on supported her claim.
The appeal concerned a separate application. Ms McNulty asked the High Court to inspect documents over which the Bank claimed legal professional privilege, arguing that the crime/fraud exception could apply. The High Court had found that exception engaged and ordered inspection. The Court of Appeal said a party seeking inspection must first establish at least reason to believe that the privilege ordinarily applying to solicitor-client communications had been abused.
The appeal court found no such basis in the evidence. It said the alleged accounting practice ended when the airport branch closed in July 2008, while the solicitors became involved more than two years later. There was no suggestion that the Bank sought or received legal advice to further the alleged practice. The Bank was entitled to seek advice to defend Ms McNulty’s proceedings, the judgment said.
The appeal court allowed the Bank’s appeal and set aside the High Court order. It did not determine the underlying employment claims or the truth of the accounting allegation. It also noted an apparent discrepancy between the Bank’s original schedule of privileged documents and a later, more detailed schedule prepared by its solicitor. The court said this appeared to require a further affidavit from the Bank, but invited submissions before making any such order.
The appeal was listed for 31 March 2025 for submissions on the final form of the order and costs. The judgment did not state the outcome of that later hearing.