The High Court has upheld Irish Bank Resolution Corporation Limited and Kieran Wallace’s privilege claims over disputed documents in proceedings brought by six Quinn family plaintiffs, while requiring further affidavit evidence about a small group of other documents.
In a judgment delivered on 19 May 2015, Mr Justice Brian J. McGovern considered an application for further and better discovery. The proceedings were listed for hearing on 3 June and expected to last four to six months.
The dispute concerned the defendants’ claim that documents were privileged because their dominant purpose was to address litigation or investigations by the Financial Regulator and the Office of the Director of Corporate Enforcement (ODCE). The first defendant said it became aware of the Financial Regulator investigation in mid-2008 and of the ODCE investigation on 19 December 2008.
The judge accepted that privilege could be claimed for documents created mainly to engage with those regulatory and investigative processes. He stressed that this did not make every document created after 19 December 2008 privileged; the claim applied only where the required dominant purpose was established.
The original dispute covered about 3,200 documents. Following engagement between the parties’ solicitors, that number fell to about 170, with 11 newly challenged documents also considered. The judge reviewed the documents and the defendants’ explanations. He was satisfied that the general group of documents and the 11 additional documents were covered by privilege.
The court had requested further information about five documents. Having considered a supplemental affidavit sworn on 15 May 2015, the judge found the privilege claims for those documents maintainable. He also directed that further affidavits be delivered concerning documents in Tabs 109, 147, 148 and 153, and an email from David Drumm dated 14 April 2008. The judgment does not state that those items were found privileged.
The judge noted that privilege was no longer being maintained for a small number of documents, as described in paragraphs 25 to 27 of the supplemental affidavit. The judgment does not give their number or identify them. The decision addressed privilege claims on the discovery application; it did not determine the underlying proceedings.