The Commercial Court has ruled that one paragraph of a contract for the sale of Barne Estate in Co Tipperary can be withheld from billionaire John Magnier and his family as sharing it would give them a “disproportionate litigation advantage”.
Mr Justice Denis McDonald was asked to decide whether three paragraphs in the contract, relating to the proposed sale of the Clonmel estate to a new buyer, were highly sensitive such as to warrant their redaction when shared with the other side.
The Barne Estate defendants voluntarily agreed to share the document as part of the exchange of records taking place in the challenge brought against them by thoroughbred stud owner Mr Magnier, his son John Paul and daughter Kate Wachman.
The Magniers allege the estate farmer and a beneficial owner of the property Richard Thomson Moore, and two other companies that own the shares in the estate, intend to repudiate an agreement to sell the residence and 751-acre tillage farm to Mr Magnier for €15 million.
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The Barne side admit handshakes occurred but deny there was any agreement to sell the property to Mr Magnier. They say the Magniers’ actions have prevented a €22.25 million sale of the estate to another bidder.
On Thursday, the Magniers’ senior counsel, Paul Gallagher, instructed by Arthur Cox solicitors, complained that he received a heavily redacted version of the sale contract. When his team pressed, they were told the omitted sections were subject to “litigation privilege”.
Asserting privilege when it is not at play is “serious”, as is asserting it and then acknowledging it did not apply to elements that were originally redacted, said Mr Gallagher. He submitted that a “belated” assertion of confidentiality also does not arise as a matter of principle given there was an “unequivocal waiver of privilege” in a letter to his clients.
Martin Hayden SC, instructed by McDermott Creed & Martyn Solicitors, for the defendants, said his team realised there was an “excessive” amount of redactions in the original shared version but this was immediately rectified following advice.
He pointed out there was no order for the document, and the Magniers were not entitled to it “at all” other than through voluntary discovery.
Ruling on the issue, the judge said he could not see how litigation privilege applies to a contract for sale of land whose primary purpose was not for litigation. Given this finding, he did not agree with the plaintiffs’ submission that there had been a waiver of privilege.
The judge said highly sensitive material can be omitted where it relates to the conduct of litigation and where the parties obtain a “general understanding of the document as a whole”. One of the paragraphs “undoubtedly meets the test”, as it relates “not just to the conduct of the proceedings but it relates to the way in which decisions would be made in the course of the proceedings”, he said.
Disclosure of this section would confer a “disproportionate litigation advantage” on the Magniers, he added.
The two further disputed paragraphs are “unsurprising” and do not have the same sensitivity, the judge added. He said the contract should be provided to the Magniers with only one section redacted.
The case was adjourned.
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