A businessman may access affidavits containing allegations aired against him in open court, the High Court has ruled, finding that the documents had been effectively opened to the public during earlier proceedings.
Mr Justice Hogan held that David Agar was entitled to see affidavits filed by George Tracey in a case brought by Allied Irish Bank plc. The affidavits alleged that Agar had misappropriated portions of loans drawn down by companies jointly owned and controlled by the two men. Agar emphatically rejected the allegations.
The application followed a separate judgment on 12 March 2013 granting summary judgment to AIB and a subsidiary for sums close to €18 million. Hogan said he had not directly adjudicated on Tracey’s claims about alleged mismanagement of his affairs, and the earlier judgment did not name Agar, though it recorded the substance of the allegations.
Agar was not a party to the bank’s litigation. His legal team had attended from the second day of a hearing lasting about three days. After the hearing, Tracey’s lawyers opposed releasing the affidavits; AIB took a neutral position. Hogan directed Agar to apply by motion on notice to Tracey, and this judgment addressed that application.
Hogan said the relevant passages had been frequently referred to in open court and at least some had been opened in full or in part. He distinguished the case from one involving documents that remained in discovery and were not discussed in open court. He also said that, even if court permission were needed to use the affidavits for another purpose, it would be appropriate to grant it. Access, he reasoned, would allow Agar to know the precise nature of allegations publicly made against him and support his constitutional right to a good name.
The court concluded that permission was not required in this case because the affidavits had been effectively opened in unrestricted civil proceedings. The order entitles Agar to access Tracey’s affidavits in these proceedings. Hogan said different considerations could apply to material not opened in court or protected by in-camera rules or reporting restrictions. The judgment did not decide whether Agar had any defamation remedy.