The High Court has barred Kevin Delappe from using or relying on eight documents in his proceedings against David Brock, Declan Cosgrave and Brock Delappe Limited, after finding that those documents were privileged. It also ruled that Delappe’s affidavit containing the documents must not form part of the papers presented to the court in further applications or at trial.
In a ruling delivered on 13 June 2023, Mr Justice Mark Sanfey set out orders following an earlier judgment on the respondents’ application concerning documents Delappe had obtained. The court had found eight of nine disputed documents privileged and concluded that the material did not justify setting privilege aside. It found one document, KD10, was not privileged against Delappe.
The court’s ruling concerned the consequences of those findings, including costs and publication. It rejected a request to delay publication until the substantive proceedings were determined, saying that would not accord with the constitutional principle of open justice in the circumstances. The judge said measures could be made to reduce the risk of prejudice to the privilege established over most of the documents.
The order prevents Delappe, his servants or agents from using, disseminating or otherwise relying on documents KD6, KD7, KD8, KD9, KD11, KD12, KD13 and KD14, including extracts. The court cautioned that their contents should not inadvertently enter evidence or submissions in later applications or at trial.
The court declined to expunge Delappe’s affidavit of 8 July 2021 permanently from the court file. It said the affidavit should be preserved as the document that gave rise to the respondents’ application, but must not be relied on by either party or presented to the court as part of the papers for a further application or trial. Delappe was given liberty to swear and file a new affidavit replying to David Brock’s affidavit of 21 June 2021 in the substantive proceedings.
On costs, the judge assessed the respondents’ successful issues as accounting for 85% of the application’s costs and Delappe’s success on KD10 as accounting for 15%. The net order was for the respondents to recover 70% of the application’s costs from Delappe, to be adjudicated if the parties could not agree. The costs order was stayed pending determination of the litigation.
The judge also accepted that he should not be assigned to hear the trial. The parties or either of them could explain the situation to the judge overseeing trial listing, so far as possible to ensure the trial judge did not read or consider the judgment on the privilege application.