H242
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Allied Irish Bank Plc -v- Treacy (No. 2) [2013] IEHC 242 (21 March 2013) URL: https://www.bailii.org/ie/cases/IEHC/2013/H242.html Cite as: [2013] IEHC 242 |
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Judgment
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Neutral Citation Number: [2013] IEHC 242 THE HIGH COURT [2011 No. 2791 S] BETWEEN/ PLAINTIFF AND
GEORGE DEFENDANT JUDGMENT of Mr. Justice Hogan delivered on the 21st March, 2013 1. One of the many unpleasant features of what the country has had to endure since the collapse of the property sector in 2008 is the extent to which ties of friendship and family bonds have been placed under enormous strain as a result of the ensuing financial crisis. This is one such case and a falling out between friends has given rise the present application which is one of some novelty and is, indeed, of some considerable importance. 2. Prior to the events giving rise to the present application, the defendant in the present proceedings, Mr. George 3. In a judgment delivered in these (and related) proceedings on 12th March 2013 I granted summary judgment in favour of AIB (and a subsidiary company) for sums close to €18m. In the course of defending those proceedings Mr. 4. During the hearing itself (which lasted some three days) Mr. Agar’s legal team maintained a watching brief from the second day onwards, although he was not, of course, a party to the litigation. At the close of the hearing Mr. Agar’s legal representative sought a copy of the relevant affidavits which sought to directly implicate their client in a course of conduct, which, if true, would amount to a grave breach of fiduciary duty amounting to the fraudulent misappropriation of funds. It is important to state that Mr. Agar emphatically rejects these allegations. 5. I should also interpose here to say that during the hearing I expressed concern that these allegations were being ventilated in open court in circumstances where Mr. Agar had no formal opportunity to respond or to have his interests formally represented Indeed, I took care to ensure that Mr. Agar’s name was not directly mentioned in the written judgment which I delivered. 6. At all events, Mr. 7. It is important to note at the outset that the affidavits in question were in effect fully opened to the Court. While the former practice whereby counsel formally read out all the affidavits which had been filed in the proceedings into the record from beginning to end has largely ceased, nevertheless frequent reference was made in open court to the relevant passages from Mr. Access to documents generated for the purposes of litigation 9. The decision of the Supreme Court in Breslin v. McKenna [2008] IESC 43, [2009] 1 IR 298 is perhaps the closest case in point. Here the plaintiffs sought access by way of discovery to materials contained in the book of evidence furnished to the defendants for the purposes of their trial as accused before the Special Criminal Court so that they (i.e., the plaintiff) could use that material for the purposes of a civil action in Northern Ireland for damages arising out of the same incident. 10. In the High Court Gilligan J. found that the defendants qua accused held the documentation on foot of an implied undertaking, so that the permission of the Court would be not necessary for the use of the documents for some other collateral purpose. 11. In his judgment for the Supreme Court, Geoghegan J. observed ([2009] 1 IR 298, 308) :-
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Whether permission should be given for the release of the documents? 14. In my view, it clearly would be so appropriate. Article 40.3.2 of the Constitution guarantees each citizen the right to his or her good name. That right would be indeed a hollow one if serious allegations could be made publicly in open court directly against another citizen - even if made for the purposes of defending other litigation brought by a third party - if the person against whom the allegation is made had no right to even learn of the precise nature of the allegations which were so publicly made. 15. In de Búrca v. Wicklow County Council [2009] IEHC 54 the applicant, a local councillor, made complaints regarding the ethical behaviour of another councillor. As a result, a formal investigation took place pursuant to the provisions of Part XV of the Local Government Act 2001, which investigation was actually critical of her. She then (successfully) sought to challenge that report on the ground that the investigators had misconstrued and misapplied the relevant provisions of the 2001 Act. The Council had, however, argued that that the issue was non-justiciable by reason of the fact that the publication of the report had not actually infringed her legal rights. 16. Hedigan J. rejected that argument in the following terms:-
The fact that the criticisms contained in the report now form part of the public record of the State serves only to amplify the ramifications for her, in particular should she wish to continue her career in public office. To allow such undue criticism of a conscientious local councillor to go unconsidered on the basis that it is of no consequence, or that it has no implications, would in my view involve a kind of legal fiction with potentially far-reaching consequences for the public service as a whole. In my view, therefore, the report did have material implications for the applicant.” ![]() ![]() ![]() ![]() ![]() ![]() 18. In this context I would reject the submission advanced by Mr. 19. One can easily conjecture circumstances in which a person in Mr. Agar’s position might wish to take practical steps to protect that right. Thus, for example, correspondence might be exchanged requesting Mr. 20. In these circumstances, it would be entirely appropriate for this Court to sanction the release of the affidavits, as the effective protection of Mr. Agar’s Article 40.3.2 right to a good name demands no less. Whether permission is, in any event, required? 22. The open administration of justice is, of course, a vital safeguard in any free and democratic society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse. 23. In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. Entirely different considerations would naturally arise in respect of material which was not opened in open court or which was protected by the in camera rules or by reporting restrictions imposed, for example, pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 Conclusions |