The High Court has granted Bank of Ireland Group plc leave to make a tender offer in a claim arising from the alleged disclosure of a woman’s confidential bank information. The offer cannot take effect until discovery against the Bank is complete, or, if the Bank chooses, until discovery against both sides is complete.
Ms Justice Siobhán Phelan delivered the judgment on 23 February 2023. The application concerned the timing of a possible offer, not whether the Bank was liable for the alleged disclosure or the plaintiffs’ claimed injuries. The judge said she would hear the parties further on the form of the order and any consequential matters.
The plaintiffs, Aisling Feely and Michael Moloney, claim damages for personal injuries, loss, negligence, breach of duty, breach of privacy and breach of confidence. Their case is that bank records containing private transaction details enabled the First Plaintiff’s parents to track and harass them after they had kept their movements secret. These are allegations in the proceedings, not findings made on this application.
The Bank accepts that the records identified by the plaintiffs were internal bank records and that they should not have been accessible to anyone other than the Bank and the account holder. It disputes how the records came into the possession of the other defendants, denies that it breached its duties, and puts the plaintiffs to proof of their injuries and the Bank’s responsibility. The judgment records that the Bank had acknowledged falling short of expected standards and recognised that anguish and pain had been caused.
The Bank sought leave to make a tender before incurring further legal costs, including discovery costs. By the February 2023 hearing, the parties had engaged in discovery, but it had not been finalised. The plaintiffs argued that allowing an offer before discovery was complete would be unfair because they had identified the documents they sought while the Bank could assess their potential significance. Their claim also seeks aggravated, exemplary or punitive damages.
Justice Phelan found no evidence that the Bank had acted in bad faith over an earlier mediation, and held that the failed mediation alone did not justify refusing leave. But she found a risk of unfairness in allowing a tender to take effect while discovery remained incomplete: the plaintiffs would have to assess the offer without documents that might bear on their claim, while facing potential cost consequences if they failed to recover more than the tender.
The judge concluded that this risk could be addressed by conditions, rather than refusing leave. She directed that any tender made under the leave will take effect only after discovery against the Bank is complete, or after discovery against both parties if the Bank elects. Costs of expert reports obtained for the plaintiffs’ claim and exchanged during mediation are to be costs in the cause. She declined to make the Bank responsible for mediation costs.