The Supreme Court directed that its order in an appeal arising from litigation involving Irish Bank Resolution Corporation Limited (IBRC) include an express provision allowing court-appointed Receivers to give IBRC non-legally privileged information they received in that role.
The judgment, delivered by Mr Justice Clarke on 26 February 2014, addressed a dispute over the form of a consent order. It did not decide the underlying appeal on its merits.
The appeal concerned a November 2012 High Court order made after a motion by the Receivers. The order required certain defendants to provide documents, electronic devices and information. It also granted a request that the Receivers could provide IBRC with non-privileged information received from relevant defendants or third parties in their capacity as Receivers.
The defendants appealed, focusing on procedures for handling material over which they might claim legal professional privilege. The parties later agreed revised procedures under which defendants could first assert privilege and disputed claims could be resolved. Their settlement was set out in a draft order, but that document omitted an express direction about sharing non-privileged information with IBRC. It still stated that the relief sought in paragraph 4 of the original High Court motion was granted.
The Receivers argued that the draft’s statement granting that relief showed the parties had agreed to the direction, and asked the Court to include it expressly to avoid confusion. The relevant defendants initially opposed adding it, saying there was no agreement to vary the draft’s terms. After the hearing, their solicitors told the Court they agreed to the form proposed by IBRC.
The Court said settlement disputes involving a genuine factual disagreement would ordinarily need to be resolved in separate proceedings. Here, it found no factual dispute about the settlement’s substance: the draft stated that the paragraph 4 relief was granted, and the requested direction reproduced that paragraph. The Court concluded it could settle the form of the order in the appeal proceedings to avoid ambiguity.
It directed that the order take the form of the draft submitted on behalf of the Receivers, with the express direction included. The Court said this gave a clear form to the substance of the settlement and did not vary the agreement. The judgment resolved the question about the order’s wording; it did not determine the appeal’s substantive merits.