The High Court has directed the Quinn plaintiffs and Irish Bank Resolution Corporation (IBRC) to review Mason Hayes & Curran (MHC) documents claimed as privileged, to determine whether some are connected to legal material the plaintiffs had already disclosed. The court did not order a general release of the disputed documents.
In a judgment delivered on 31 July 2018, Mr Justice Robert Haughton rejected IBRC’s request to re-enter its motion for further and better discovery. He said that after MHC made extensive non-party discovery in 2015, IBRC had not identified other specific categories of documents likely to be produced by a further discovery exercise. A full review by the plaintiffs would be costly and disproportionate.
The dispute arose in proceedings in which six members of the Quinn family challenge the validity of share pledges, guarantees and indemnities. They allege undue influence, breach of duties concerning independent legal advice, and unconscionable bargain. IBRC has defended the claims and counterclaimed for sums it says are due. The judgment records that some other grounds of invalidity can no longer be pursued following earlier court decisions.
The plaintiffs had claimed privilege over legal documents in their 2012 discovery. In 2014, they agreed to provide a set of those documents to IBRC, while saying they were taking a practical approach and were not conceding their earlier position. MHC later made non-party discovery of further documents, many of which the judge found should have been included in the plaintiffs’ original discovery. The plaintiffs maintained privilege over many of the MHC documents.
Justice Haughton ruled that the 2014 letter waived privilege only over the documents then reviewed; it was not a general waiver covering material discovered later. But he found it would be unfair to preserve privilege over MHC documents connected to the same transactions or streams of documents as material already disclosed, because that could leave an incomplete and misleading picture. The descriptions in MHC’s document lists were too limited to identify all such links.
Under the directions, IBRC must prepare a list of potentially connected MHC documents and send it to the plaintiffs’ solicitors within two weeks. The plaintiffs then have four weeks to disclose documents over which they waive privilege, or provide fuller descriptions and reasons for maintaining privilege over the rest. If they fail to respond to listed documents, privilege will be deemed waived and those documents must be produced. IBRC has three weeks after receiving the plaintiffs’ list to challenge any remaining privilege claims.
The motion was adjourned for mention on 12 November 2018. The judge said he would hear counsel further on the time limits for the steps. The ruling therefore set a process for assessing particular documents; it did not decide that every MHC document was unprivileged.