The High Court has ruled that Yesreb Holding Limited may inspect disputed correspondence created during investigations into ownership of the property known as Walford, while preserving litigation privilege over later documents and notes relating to Denis O’Sullivan’s communications with the Official Assignee’s office.
Mr Justice Robert Haughton delivered the ruling on 15 January 2019. It concerned the remaining part of Yesreb’s motion seeking inspection of documents over which Christopher Lehane, as Official Assignee in Sean Dunne’s bankruptcy, claimed privilege. The ruling supplemented an earlier judgment delivered on 19 December 2018.
The court held that the Official Assignee had not established litigation privilege for correspondence in three categories created before, or well ahead of, the Lehane proceedings against Yesreb: correspondence with Matheson Solicitors; correspondence with other solicitors; and communications with An Garda Síochána, the Revenue Commissioners and other third parties. The court found no evidence that those communications were confidential, and the privilege schedule described them as arising from ongoing investigations into Walford. Those investigations could have ended without proceedings, and the Lehane proceedings were not issued until December 2016. Yesreb was therefore entitled to inspect the documents covered by the ruling that came into being earlier than mid to late 2016.
The Official Assignee had argued that litigation was in contemplation from late 2013 or early 2014, and that earlier proceedings against Gayle Dunne supported the privilege claim. The court said those proceedings concerned the Lagoon Beach hotel in South Africa, not Walford’s ownership, and did not establish privilege for the disputed Walford material.
The court accepted that different considerations applied to documents created at or shortly before the December 2016 issue of the Lehane proceedings, and afterward. It held that litigation privilege could be maintained over listed documents from that period, including a number created from October 2016 that were considered close to the start of proceedings. For six undated document entries, the court said it could not determine whether privilege applied without more information; if the dispute could not be resolved by agreement, the parties had liberty to apply.
The court separately refused Yesreb’s request to inspect internal notes and documents recording information provided by Denis O’Sullivan. No transcript of an examination existed: after a private court process under sections 21 and 134 of the Bankruptcy Act 1988, the parties agreed that he would provide written information instead. The judge held that the resulting notes were confidential and created after the Walford proceedings had begun, for the purpose of prosecuting them, so litigation privilege applied.