Brophy v Mediahuis Ireland Group (Approved)

Factual and Procedural Background

The Plaintiffs commenced proceedings seeking damages related to a "data interrogation" exercise allegedly conducted by the first named Defendant under the direction of the second named Defendant. This exercise involved examination of computer data, including emails, held by the first named Defendant. The Plaintiffs claimed breaches of their privacy rights, data protection legislation, constitutional rights, and alleged a conspiracy to damage their interests. The "data interrogation" issue is also under investigation by two inspectors appointed by the High Court under Part 13 of the Companies Act 2014.

The Plaintiffs sought discovery of documents to support their claim. While the parties agreed on most terms of discovery, two points of disagreement arose requiring court adjudication: (1) whether documents relating to the ongoing statutory investigation attracted public interest privilege, and (2) whether a temporal limit should be imposed on the discovery obligations of the second named Defendant. The court resolved the first issue in favor of the Plaintiffs, holding that claims of privilege were premature without an affidavit of discovery describing the documents. The court set a discovery cut-off date of 25 March 2020, extending beyond the Defendants’ proposed limits, except for documents related to the inspectorate process.

Legal Issues Presented

1. Whether the Defendants could assert public interest privilege over documents related to an ongoing statutory investigation prior to filing an affidavit of discovery.
2. Whether a temporal limit should be imposed on the Defendants’ discovery obligations, and if so, what the appropriate cut-off date should be.
3. The appropriate allocation of legal costs arising from the application for discovery.

Arguments of the Parties

Plaintiffs' Arguments

• The Plaintiffs contended that the assertion of privilege was premature before filing affidavits of discovery identifying the documents.
• They argued entitlement to costs as they succeeded on the privilege issue and obtained a longer temporal discovery period than that sought by the second named Defendant.

First Named Defendant's Arguments

• The first named Defendant submitted costs should be costs in the cause, emphasizing the duty of confidentiality imposed by the inspectors made voluntary discovery unsafe.
• Counsel acknowledged the Plaintiffs’ success on the major legal argument but highlighted that the court’s protocol addressing the risk of undermining privilege by describing documents was beneficial and unique to the hearing.

Second Named Defendant's Arguments

• The second named Defendant submitted that costs should be reserved.
• Counsel noted their oral submissions were limited to the temporal limit issue and that prior correspondence indicated consent to discovery during the relevant periods of the cause of action.
• They questioned whether the extended discovery period would yield any new discoverable documents.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the allocation of costs under the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts, as summarized in Daly v. Ardstone Capital Ltd. The court identified two central issues: the procedural question of whether privilege could be asserted before filing an affidavit of discovery, and the substantive question of whether documents related to the statutory investigation attract public interest privilege.

The court found the Plaintiffs entirely successful on the procedural point, holding that it was unreasonable for the Defendants to assert privilege prematurely. This premature assertion prolonged the discovery motion hearing unnecessarily. Although the substantive privilege issue remained undecided and might ultimately favor the Defendants, the procedural victory entitled the Plaintiffs to costs.

Regarding the temporal limit, the court found the Plaintiffs substantially successful in obtaining discovery over a longer period than the Defendants sought. The Plaintiffs had also offered to limit scheduling of privileged documents beyond the court-ordered date, indicating reasonableness in their conduct.

The court noted the inspectors’ neutral but helpful role and provisionally concluded their costs should be treated as expenses of their statutory investigation, borne by the Corporate Enforcement Authority rather than the parties.

Holding and Implications

The court held that the Plaintiffs are entitled to recover the costs of both motions for discovery against the Defendants. This includes costs of written submissions, two counsel, stenography, and the post-judgment hearing. Costs are to be adjudicated under the Legal Services Regulation Act 2015 if not agreed between the parties. A stay is imposed on execution of the costs order pending final determination of the proceedings.

The decision directly affects the parties by awarding costs to the Plaintiffs for the interlocutory discovery application. No broader precedent is established beyond the application of existing principles regarding interlocutory costs and procedural propriety in privilege claims.