The Court of Appeal has directed Bank of Ireland to provide an affidavit explaining whether it took steps to preserve potentially relevant documents during a former employee’s personal injury proceedings, and why no litigation hold was put in place. The direction followed the loss of records relevant to claims concerning the Dublin Airport Bureau.
The judgment, delivered by Mr Justice Maurice Collins on 29 June 2021, arose from Orla McNulty’s appeal against two High Court orders refusing applications about the bank’s discovery. The underlying proceedings, begun in 2010, include her allegation that the bank wrongfully ended her employment in 2008. She also alleges she was made to operate a duplicate accounting system to understate turnover reported to the Dublin Airport Authority, and was scapegoated after disclosing it. The Court of Appeal did not decide those underlying allegations.
The bank’s 2017 discovery affidavit said certain July 2007 accounting records no longer existed. Later affidavits disclosed further documents and data, and described searches and retention practices. A composite affidavit delivered in May 2021 said electronic records had been deleted or overwritten during 2015. The court accepted that affidavit on appeal, while noting it had not been before the High Court.
Mr Justice Collins said the bank’s earlier discovery affidavits had not adequately explained its searches or when and how documents were lost. He said litigants must take reasonable steps to preserve relevant documents, including electronic records, and legal advisers must advise clients of that obligation. The court said no litigation hold had been put in place and criticised the failure to preserve relevant material. It said the missing records were relevant and potentially significant, but the available evidence did not establish deliberate avoidance of discovery.
The court refused to strike out the bank’s defence at this stage. It said the impact of the missing records on the fairness of a trial could not yet be assessed and left open the possibility of renewed discovery applications at trial, depending on the evidence. It also upheld refusal to require the bank’s chief executive to swear an affidavit, finding no basis to doubt the discovery evidence of David Coleman, a senior manager who had no involvement in the events.
The bank must provide, within four weeks, an affidavit from Francesca McDonagh, if available, or another solicitor in its legal department. It must address steps taken to preserve potentially relevant records after proceedings began, any communications to potential document custodians, and relevant preservation policies or protocols. The deponent must be available for cross-examination at trial; privileged information need not be disclosed. The court also said data from the bank’s Stor backup system should be retained and made available for inspection on request, subject to reasonable conditions.
The court’s provisional view was that McNulty should receive the costs of the appeal, while making no order for costs on the second motion. Either party could seek a brief further hearing on costs within 21 days.