The Court of Appeal upheld orders declaring that A. and B. had no estate, right, title or interest in two properties, and struck out most of their defence and counterclaim. It allowed a limited part of B.’s data protection claim against Shawl Property Investments Limited to proceed to a full hearing.
In a judgment delivered on 19 February 2021, Ms Justice Máire Whelan said the remaining claim concerns Shawl’s use of an unredacted 2015 judgment in proceedings seeking injunctions. Whether that disclosure breached the Data Protection Act 2018, or was justified in the circumstances, remains for the trial judge to decide. The Court of Appeal made no finding that Shawl had breached the Act.
The dispute concerns Blackacre and Whiteacre, which A. mortgaged to EBS after borrowing more than €8.3 million in 2005 to acquire investment properties. After A. defaulted, a receiver took possession and managed the properties. EBS later transferred the loan and securities to Beltany Property Finance DAC, which sold the two properties to Shawl in September 2018.
B. had previously claimed a beneficial interest arising from family law proceedings between her and A. The High Court rejected that claim in 2015, ordered A. and B. to vacate the properties and dismissed B.’s counterclaims. The Court of Appeal dismissed B.’s appeal in 2017. A later failed to appear at the hearing of the present appeal.
The current proceedings followed events in late 2018 and January 2019, when A. and B. re-entered the properties. The High Court granted Shawl injunctions and, in October 2019, summary judgment declaring that neither appellant had an interest in the properties. It also dismissed the counterclaim.
B. argued on appeal that Shawl’s use of the unredacted 2015 judgment breached data protection and privacy rights and the in camera rule. The judgment had been marked “Do not publish on website”. The Court of Appeal noted that the judge who issued it later determined that the 2015 proceedings themselves were not in camera proceedings. However, Justice Whelan said it was arguable that using the unredacted version disclosed personal information from family law evidence heard in camera beyond what was necessary. The source of Shawl’s copy was not established in the evidence before the appeal court.
The court struck out the counterclaim insofar as it sought damages for contempt or breach of the in camera rule, holding that those allegations did not provide a private-law basis for damages. It also upheld the striking out of the defence and the other counterclaim claims. The surviving Data Protection Act claim, confined to specified counterclaim paragraphs and related relief, is to proceed to a plenary hearing.
The court proposed setting aside the High Court costs order against B. and replacing it with an order that she pay half of Shawl’s High Court costs. It proposed no costs order for the appeal itself, subject to either party applying for a further hearing on costs within 14 days.