The High Court will inspect documents over which Bank of Ireland claims legal professional privilege after finding that the crime/fraud exception is engaged in a former employee’s case. The court has not yet ruled that any of the documents must be disclosed.
Ms Justice Nuala Jackson ruled that the bank had established that the documents in a schedule attached to an affidavit were privileged. She also found that Orla McNulty had made clear allegations of dishonest conduct and provided prima facie evidence supporting them. These are preliminary findings for the privilege application; the underlying allegations remain disputed.
Ms McNulty’s proceedings, begun in 2010, concern the termination of her employment with the bank in or about April 2008. Her amended pleadings allege that she was required to operate a duplicate accounting system that understated turnover reported to the Dublin Airport Authority, and that her employment ended after she disclosed the system. The bank denies those allegations.
In support of the present application, Ms McNulty relied on her inspection of data from the bank’s Stor System. She said entries associated with a machine used for foreign currency buy-back transactions also recorded sales, and argued that this supported her claim that a secondary accounting system had operated. The judge said material shown in a booklet, which appeared to contain screenshots cross-referenced to the Stor System, tended to support Ms McNulty’s account. The judge described the evidence as prima facie only.
The application asked the court to inspect the bank’s privileged documents to decide whether the privilege claim was valid in light of the alleged wrongdoing. The judge concluded that the case met the threshold for applying the crime/fraud exception, including because the alleged conduct, if established, could involve moral turpitude or dishonesty. She said the documents’ post-proceedings dates did not prevent the exception from applying.
The ruling does not determine whether the alleged accounting practices occurred, whether they caused Ms McNulty’s dismissal, or whether the bank is liable. Nor does it resolve broader disputes about discovery or document preservation. The judge said those issues had been addressed by the Court of Appeal and were not the issue before her on this application.
Under the order, the judge will inspect the documents and decide whether they contain relevant material that should be disclosed. The matter was listed for 15 April 2024 to address any issues arising from the judgment. Subject to those issues, the documents are to be furnished to the judge within 14 days of that date, with a decision proposed by 29 May 2024, subject to the timing of their delivery.