Feely & Anor v Bank Of Ireland Group PLC & Ors (Approved)

Factual and Procedural Background

The Plaintiffs initiated proceedings against the Defendants seeking damages for personal injuries, loss, negligence, breach of duty, breach of privacy, and breach of confidence stemming from the alleged improper and/or unlawful disclosure of the First Plaintiff's bank details. The First Defendant, a banking institution, seeks leave of the Court to make a tender offer at this stage of the proceedings, which requires such leave under the Rules of the Superior Courts 1986.

The background involves a troubled familial situation in which the Third Defendant, identified as the First Plaintiff's father and managing director of the Second Defendant (a security and investigation services company and former employer of the First Plaintiff), allegedly obtained confidential banking documentation from the Bank. This documentation disclosed private details of the First Plaintiff's bank transactions, which purportedly enabled the Plaintiffs to be tracked and harassed by the First Plaintiff's parents despite efforts to keep their location secret. The Plaintiffs claim this harassment caused significant distress and safety concerns, necessitating police involvement.

The Bank admits the documents are internal bank records but denies how these came into the possession of the Second and/or Third Defendants and denies breach of duty. The Bank acknowledges certain duties to the First Plaintiff but disputes the extent and denies liability. The Plaintiffs engaged in correspondence and mediation attempts with the Bank, which ultimately failed, leading to the commencement of litigation. The procedural history includes issuance of a Plenary Summons, delivery of pleadings, requests and replies for particulars, and extensive discovery negotiations, which remain incomplete at the time of the tender application.

Legal Issues Presented

1. Whether leave should be granted to the First Defendant to make a tender offer at this stage of the proceedings pursuant to Order 22 rules 1(7) and 14(2) of the Rules of the Superior Courts 1986.
2. If leave is granted, upon what terms and/or conditions should such leave be made contingent.

Arguments of the Parties

Appellant's (First Defendant's) Arguments

• The Bank seeks to make a tender offer without admission of liability to reach a reasonable resolution before incurring further legal costs, particularly discovery costs.
• The Bank denies any intention to delay the discovery process and asserts ongoing active engagement in discovery negotiations.
• The Bank objects to conditions proposed by the Plaintiffs that would delay the effectiveness of the tender until after discovery concludes, arguing that discovery costs have not yet been incurred.
• The Bank maintains there is no authority to condition leave on payment of costs incurred outside the litigation process, such as mediation costs.

Appellees' (Plaintiffs') Arguments

• The Plaintiffs contend that allowing a tender now, before discovery is complete, would cause unfairness because the Bank would have access to relevant discovery information that the Plaintiffs have identified but not yet obtained themselves.
• The Plaintiffs argue that this creates an inequality of arms and a potential litigation advantage for the Bank, pressuring the Plaintiffs to decide on the tender offer without full information.
• The Plaintiffs seek a condition that any tender offer not take effect until after the discovery process concludes and that costs incurred up to and including the current application, particularly mediation costs, be included in the costs order.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the strong public policy favoring early settlement and the encouragement of alternative dispute resolution, including tenders and mediation. It noted that the discretion to grant leave for a late tender offer is broad and generally exercised in favor of allowing such offers unless unfairness or prejudice to the Plaintiff can be demonstrated.

The Court rejected the argument that the prior unsuccessful mediation or settlement negotiations alone justify refusal of leave, referencing authority that such attempts do not preclude tender offers.

There was no evidence of mala fide conduct by the Bank in relation to the mediation or tender application. The Court found no special circumstances that would justify outright refusal of leave.

However, the Court identified a risk of unfairness arising from the timing of the tender application, which was made while the discovery process was advanced but incomplete. The Plaintiffs had identified specific documents they sought by discovery, effectively revealing their case, whereas the Bank had access to the requested information. This created an inequality of arms, potentially pressuring the Plaintiffs to accept a tender offer without full knowledge of relevant evidence.

To mitigate this unfairness, the Court exercised its discretion to grant leave conditionally, requiring that any tender offer made would only take effect after the conclusion of the discovery process. The Court also directed that costs of expert reports exchanged during the aborted mediation be costs in the cause, but declined to impose conditions relating to mediation costs as no authority supported such orders and no unfairness arose from the mediation process itself.

Holding and Implications

The Court GRANTED leave to the First Defendant to make a tender offer pursuant to Order 22 rules 1(7) and 14(2) of the Rules of the Superior Courts 1986, but imposed the condition that any such tender offer will not take effect until after the conclusion of the discovery process.

The costs of expert reports obtained for the Plaintiffs' claim and exchanged during the mediation process were directed to be costs in the cause. No order was made for mediation costs outside the litigation process.

This decision preserves the Plaintiffs' right of access to the Court and ensures fairness by preventing the Bank from gaining an undue litigation advantage through early access to discovery information. The ruling does not establish new precedent but applies established principles to the circumstances of the case.