The High Court has refused an application by Acorn Wave Limited to strike out part of an affidavit by the Gaelic Athletic Association (GAA), finding that an email exchanged during a dispute over ticketing services was not protected by “without prejudice” privilege.
The application concerned an email of 1 May 2020 from Acorn Wave representative Mark Waldron to GAA representative Ger Mulryan. Acorn Wave argued that the email was a confidential attempt to settle a dispute and was covered by a later agreement to communicate without prejudice. The GAA disputed that the privilege applied to the earlier email.
The dispute arose from Acorn Wave’s work for the GAA as it considered bringing ticketing operations in-house. The parties disagreed about the terms of Acorn Wave’s engagement and the work it was authorised to carry out. The GAA had paid an advance of €175,000 in December 2019. After a tender process, Acorn Wave was not selected as the provider for services from January 2021. The GAA later sought repayment of €120,000 for costs it said had not been vouched.
In the 1 May email, Acorn Wave proposed a minimum payment in connection with what it described as early termination of a contract, while also seeking to preserve a commercial relationship. The judge found the correspondence showed a dispute and that litigation was in contemplation if negotiations failed. However, she concluded the evidence did not establish that both parties intended the email to remain undisclosable if negotiations were unsuccessful. The “without prejudice” basis was first raised in a telephone conversation on 11 May, and the parties’ later agreement did not extend back to the 1 May email.
The judge also noted that Acorn Wave’s solicitors had referred to the email in open correspondence in August 2020. She said this did not reflect an understanding that the email had always been privileged.
The ruling concerns only the privilege application. The judge refused to strike out either the affidavit in full or paragraph 46, which referred to the email. She said the proposed minimum figure had not been accepted and was not legally binding; whether money is due, and how much, remains for determination at the hearing of the proceedings. The parties were given seven days from electronic delivery of the judgment to agree the form of final order, failing which the matter could be listed for a further hearing on finalising the application.