Employment case, High Court, Kelly v Store All Logistics

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Kelly v Store All Logistics Ltd (Approved) [2026] IEHC 241 (23 April 2026)
URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC241.html
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THE HIGH COURT

[2026] IEHC 241

[Record No: H.P. 2025/3453]

BETWEEN

JOHN PAUL KELLY

PLAINTIFF

AND

---

STORE ALL LOGISTICS LIMITED

DEFENDANT

JUDGMENT of Mr. Justice Liam Kennedy delivered on 23 April 2026.

1. The defendant seeks various interlocutory remedies, including the dismissal of this entire claim, or at least the claim to equitable reliefs, in response to the plaintiff's actions. On the weekend of 13-14 December, he used his administrator privileges to access the defendant's IT systems and download thousands of emails from at least three colleagues' email accounts, including information which was evidently private, confidential and legally privileged ("the Incident"). The defendant says that the Incident was an attempt to obtain an improper litigation advantage, both in these proceedings and in ongoing disciplinary proceedings. This judgment considers the plaintiff's actions and their implications and consequences, the adequacy of his apology, explanations and response (including the evolving positions adopted on his behalf). I am satisfied that the equitable reliefs sought by the plaintiff are now unsustainable and must be struck out and I should also confirm my decision to discharge the undertakings previously tendered by the defendant at my invitation. I will also direct the plaintiff to file a detailed affidavit in relation to the Incident and to take or refrain from taking various steps as outlined below. However, some conclusions in respect of the Incident must be regarded as provisional and it may be premature to dismiss the entire claim at this stage, so I will adjourn that part of the application. Depending on how matters unfold as further information emerges in respect of the Incident and its ramifications, it may still be appropriate for me, or the trial judge, to take that step in due course. The adequacy of the plaintiff's response to the Incident and the information which emerges as to his actions and their impact will determine whether these proceedings go to trial.

Introduction

2. The plaintiff is the defendant's managing director ("MD") and one of its principal shareholders. These proceedings concern his claim that the defendant breached his employment contract by seeking to sideline or supplant him as MD. In addition, the defendant, its officers and certain employees have raised issues in respect of his conduct (and vice versa, with him advancing counter-allegations). This includes ongoing disciplinary proceedings concerning a claim that he bullied a senior employee ("the Collingwood Complaint"). In addition, the plaintiff has indicated his intention to commence oppression proceedings.

3. My 27 November 2025 judgment ("the Judgment") rejected an application for interlocutory relief and was followed by a hearing on 10 December 2025 to settle arrangements pending trial for the provision of information to the plaintiff for the purposes of his role as MD. The plaintiff accepts that, days after that hearing, on the weekend of 13-14 December, he used his corporate IT privileges as MD to access and download information from three colleagues' email accounts, those pertaining to two of the defendant's directors and a senior executive, the complainant in the Collingwood Complaint. Those individuals have key roles in the dispute in these proceedings and the other controversies between the parties. Although the plaintiff has been unforthcoming as to details of what was downloaded, the defendant's evidence suggests that a significant volume of confidential information was downloaded, including messages which were extremely private, sensitive, confidential and legally privileged, and obviously so.

4. The plaintiff has not yet provided full details of the extent of the Incident and there are controversies as to how much data was downloaded, which devices were employed and whether other email accounts were also accessed. However, he admits accessing the three email accounts and downloading "a significant number" of emails therefrom. He has generally not taken issue with the defendant's specific averments as to the scale of the Incident or the examples of documents accessed save that he denies suggestions that two further email accounts were accessed or that he used a disc drive as well as his Surface Pro. I will accordingly disregard those two controversial allegations which have yet to be established. Although his position has not always been clear, in response to the current application, t he plaintiff apologised "unreservedly" for the Incident and accepted that it was a serious error of judgment due to "extreme stress". He says that he neither used the information "read by" him nor shared it with his lawyers or anyone else, nor has he retained copies in any format.

Reliefs Sought

5. In brief, in the alternative to the orders dismissing the proceedings or striking out the claims to equitable reliefs, the defendant seeks to require the plaintiff to furnish an affidavit confirming the detail of the Incident and to restrain his actions in various respects pending trial. It also sought ancillary orders, including as to costs, a particularly significant issue as a result of the forensic examinations triggered by the Incident. The plaintiff opposes the dismissal of the proceedings or the equitable reliefs and says that the issue should be left for the trial judge and other reliefs are unnecessary as he has explained the Incident and offered undertakings.

Background

6. The Judgment summarised the proceedings noting that: (a) the plaintiff is one of the defendant's longstanding shareholders, directors and employees and its MD; (b) these proceedings concern his disputes with his fellow shareholder/directors and with senior executives and employees concerning the company's structure, governance and management. Such issues resulted in this litigation and duelling HR complaints, investigations and proceedings, including the Collingwood Complaint; (c) in these proceedings he accuses the company of effectively sidelining or preparing to dismiss him by changing corporate reporting lines. The defendant denied his allegations. The interlocutory judgment, in short: (a) criticised both sides, noting issues as to the plaintiff's own conduct, including his "resignation" and his contribution to the controversies; (b) determined that he had established a fair question to be tried on some issues, including whether proposed changes constituted (attempted) constructive dismissal; (c) criticised the defendant's failure to furnish information to him, while noting the extent to which the plaintiff's own erratic behaviour had left the Board little option but to intervene; (d) concluded that the plaintiff had established a strong case that the defendant had sidelined him in breach of contract but that the Court could well award damages rather than injunctive relief; (e) concluded that the plaintiff had also established a fair question (but not a strong case) as to whether the changes constituted an unlawful disciplinary procedure; (f) ** noted that, even if he won at trial, a Court would be unlikely to order reinstatement given the degree to which relationships had broken down, irrespective of responsibility for that development. ** (In fact, the defendant maintained that the plaintiff's position had not been affected by its changes so it was less a question of reinstatement than of reversing changes). While generally rejecting the application (particularly on balance of justice grounds) the Judgment identified an issue to be addressed pending trial, the information to be provided to the plaintiff to enable him to perform his role as MD, criticising both parties and concluding at para. 83 that:

"While the plaintiff is MD, he should receive relevant and timely information about important aspects of the defendant's affairs. I am not satisfied with the defendant's current proposals.  I will, if necessary, impose prescriptive interlocutory orders with regard to the regularity and content of  SLT, board and strategic meetings, to be attended by both the plaintiff and Mr Dalton and by other colleagues as appropriate and to require the defendant (presumably via Mr Dalton) to ensure that all material and information which is material to the plaintiff's role is expeditiously forwarded to him. Reasonable and appropriate requests for information from the plaintiff should be dealt with by Mr Dalton and the SLT reasonably comprehensively and swiftly as possible. Since the effect of the Board's restructuring of reporting lines is, in effect, to make Mr Dalton the conduit between the MD and most other company employees, Mr Dalton should take responsibility for ensuring that any reasonable and legitimate questions constructively raised by the plaintiff are readily addressed. He and the plaintiff should liaise with each other and should speak at least regularly, in person where possible. In any event, Mr Dalton must take responsibility for ensuring that the plaintiff receives appropriate information on a timely basis. The plaintiff must not abuse such access and should likewise engage constructively. The Court will not be impressed if either party (continues to) fail to engage appropriately in that regard. Hopefully the parties can adopt a more mature approach, agreeing appropriate arrangements in this regard. If not, I will give directions". (emphasis added)

7. I confirmed that, if necessary, I would make limited directions, preferably in agreed terms, as to the provision of information to the plaintiff in a more satisfactory, professional and timely manner. The 10 December hearing addressed that issue. I approved arrangements proposed by the defendant in response to the Judgment for the provision of information pending trial. In line with the exhortations to both parties in my Judgment (including that the plaintiff must not abuse his access and engage constructively), I stated that both parties ought to cooperate and apply the undertakings with common sense, engagement and pragmatism.

8. At the 10 December hearing it was envisaged that the litigation and related issues would progress expeditiously in accordance with agreed directions and, pending trial, the defendant would furnish appropriate information to the plaintiff who I had warned not to abuse the access to information afforded to him. In the event, the Incident has derailed the proceedings.

The Emergence of the Incident

9. The details of the Incident appear from correspondence, starting with the defendants' solicitors' 16 December 2025 letter which noted the arrangements for the exchange of information with the plaintiff pending trial and queried how it should be implemented while the plaintiff was on sick leave:

"You will also be aware that your Client is currently on sick leave. Our Client agreed to waive the restriction on paid sick and extended it to encompass the Christmas period. Your Client was asked to confirm that operating the mechanism agreed / undertaken would not adversely affect his health."

The letter then asked the plaintiff's solicitors to raise a matter "of the highest concern" with their client for his immediate action as follows:

" The Matter of Concern

The Company's IT service has made this office aware of digital 'footprints' in the Company system. Pending further analysis, we do not exclude any explanation of these 'footprints' but they prima facie show that:

i. on Saturday 13 December 2025, the Defendant's company Microsoft Account was remotely accessed by an email account associated with your Client;

ii. Your Client's status as "Global Administrator'' on the Company Microsoft Account was used to grant full access to the electronic mail of company personnel;

iii. during Saturday, 13 December 2025 and Sunday, 14 December 2025, the electronic mail of Derek Dalton, Liam Dalton, Bonnie Collingwood (of the SLT, who is also the complainant in ongoing disciplinary proceedings involving your Client); Irene Irish (company HR Business Partner who is chairing that disciplinary process) and Richard Kervick (a witness in the disciplinary proceedings) was accessed;

iv. over 1,100 emails including sensitive and confidential information relating to the matters before the High Court, the proposed mediation and matters relating to his ongoing disciplinary hearing were accessed"

10. Noting that none of the individuals concerned had consented to such access to their emails, the letter gave examples of emails accessed - including emails to counsel "Re: Ongoing mediation between John Paul Kelly and other shareholders" and an internal email entitled "Meeting with SC". Other subject lines referenced "Statement of Fact Bullying", "Invitation to a Disciplinary Hearing", "Discovery", " Script Options for Wednesday Hearing Strictly Subject to Legal Professional Privilege". The letter concluded:

" *Immediate Action***

We have no doubt that your Client will wish to assist the Company in getting to the bottom of what has occurred and to mitigate the concerns of those whose electronic mail has been accessed without their permission. Accordingly, your Client should (through your office) by 4pm tomorrow, December 17th:

a. state whether any of the matters at (i) to (vi) above were carried out by him or at his direction;

b. ..;

c. confirm that he will preserve all information on such equipment and devices in its current form, pending expert analysis;

d. confirm that he is willing to submit such computers and devices to third party analysis; and

e. provide a list of all those having access to devices or accounts ordinarily used by your Client.

In due course, the foregoing can be bolstered by a formal undertaking to the Court (if necessary).

As stated above. no assumptions are made in relation to the foregoing unauthorised access. If, however, your Client confirms that one or more of the actions at (i) to (vi) was carried out by him or at his direction, your Client should, in addition to the foregoing:

f. confirm that no copies, notes or other records have been made of any material remotely accessed or that all such copies, notes or other records have been destroyed.

Depending upon the nature of the response (if any) from your Client. our Client reserves its entitlement to take whatever action is necessary...".

11. The plaintiff's solicitors responded promptly, confirming that they had sent the letter to their client for instructions and promising to revert by 18 December which they duly did (the letter was dated on 19 December), stating:

"You will be aware that our client is on sick leave and we are advised that today your client's doctor advised that he was not fit for any form of work. 1n those circumstances we have been able to take only limited instructions.

In response to matters a-f of your email we are instructed by our client as follows:

a. That on Saturday 13th and Sunday 14ᵗʰ December he gained access to a number of email accounts using his administrator permissions using his company tablet.

b. That this access was by him alone

c. That he will preserve all information on his tablet in its current form pending expert analysis

d. That he is willing to submit his tablet to a third party for analysis

e. That no other person has access to his tablet

f. That no notes or records have been made of any material accessed and any copies downloaded have been destroyed".

12. The defendant's solicitors responded on 19 December, stating that it interpreted the plaintiff's response

"as implicitly acknowledging responsibility for all of the actions at (i) to (vi) of our letter. You might explicitly confirm, by return, that this is an accurate reading of his response and in particular explicitly confirm that your client acknowledges item (iv) in our letter (i.e. the scale of the data breach); item (v) (i.e. the fact that the breach included emails that were self-evidently privileged and confidential); and item (vi) brackets i.e. that it was carried out without permission or lawful reason)".

The letter requested undertakings and proposed that the plaintiff's electronic devices should be collected for examination, noting the then anticipated cost (€16,500 plus VAT) of the ** forensic "analysis occasioned by your client's actions". The defendant's solicitors asked the plaintiff's solicitors to confirm their client's agreement to indemnify the plaintiff in relation to the cost.

17. On 23 December, the plaintiff's solicitors replied, nothing that as the plaintiff was on stress related sick leave, certified as unfit for any form of work, they had been able to take only limited instructions, but were able to respond to the issues raised, confirming that:

"...our client did grant himself full access to the email accounts you mention on foot of his administrator permissions. The only accounts he accessed were Derek Dalton Blackstar account, Liam Dalton Store-All account and Bonnie Collingwood Store-All account. He cannot confirm the number of emails accessed but it was a significant number. He maintains that he did not act unlawfully and that his administrator permissions entitled him to this access.

In relation to the second issue concerning company equipment our client confirms that he is taking the steps requested and that the Surface Pro laptop and the Windows I0 laptop will be placed in a sealed zip folder pending collection by a third party. He advises that the Windows I0 laptop contains personal files and he intends to transfer and delete them prior to handing it over. He confirms that he will not otherwise use either piece of equipment.

In relation to the third issue, the only other device he uses is his mobile phone and this is used for work and personal purposes. He instructs that he did not use this phone to gain any access and accordingly it will not be handed over. He confirms that he will not use the phone for any work-related purpose

In relation the fourth issue concerning the costs of the analysis, we have no instructions from our client in relation to this matter."

18. The defendant's solicitors' 24 December email acknowledged that the plaintiff was on sick leave, adding that "it is for this reason that his actions in accessing the electronic mail... are all the more surprising." It, inter alia, dealt with the collection of the devices and repeated the request as to costs. The plaintiff's solicitors' 27 December response, inter alia, confirmed the plaintiff's willingness to offer undertakings, dealt with the device collection and stated that they had no instructions as to costs, describing the request as premature. The defendant's solicitors' 29 December email disagreed, observing that:

"The unauthorised access by your client, while on sick leave, necessitates a retainer of an external expert to determine the nature and scope of the access period. The cost of this is not related to the company or to the proceedings which are pending. Accordingly, your client should immediately confirm his willingness to discharge the costs involved."

19. The defendant's solicitors' 9 January 2026 letter noted the extension of the plaintiff's sick leave following receipt of a further medical certificate, confirming that it had adjourned the Collingwood Complaint hearing until 20 January and proposing an appointment with the company doctor on that date to confirm the plaintiff's fitness to return to work. The letter then referred to the email access issue:

" Unauthorised Data Access by Mr. Kelly

As you were kind enough to acknowledge in yours of 19th December and subsequent correspondence from your office, your client accessed a large number of emails by using his global. administrator status to access the email accounts of a number of colleagues. We read your earlier correspondence implicitly acknowledging that your client accessed without prejudice emails and emails from the complainant alleging bullying against him and (on the information currently available) a witness in the disciplinary process which is pending, as set out in correspondence from this office. We note from yours of 23ʳᵈ December that you have not been able to obtain full instructions.

We confirm that the two devices alleged by your client to have been used by him to secure access to the Company's computer system have been collected and are being delivered, along with a download of the Company's computer system, to a forensic analyst The analyst will verify the extent and nature of the unauthorised data access, details of which were sought by this office. We hope that the fruit of the forensic analysis will be to hand in early course. When the analysis is carried out, we will communicate further with you. In the meantime, it is noted that (d) We await your client confirming that the costs occasioned by his unauthorised access of the Company's computer system (i.e. the cost of the enquiry into it) will be discharged by him.

20. The letter commented on the plaintiff's proposed undertakings, setting out alternative wording, before dealing with the then scheduled mediation observing that: **

"In light of the fact that your client is currently sick and not expected to recover until 19th January and in light of the fact that (according to yours of 23"' December) you have only limited instructions regarding the extent and nature of your client's unauthorised data access (including the extent to which he accessed without prejudice correspondence) it is - regrettably- clear that the mediation currently scheduled for 19 January will have to be deferred".

The letter noted that it would be premature to predict the impact of the unauthorised data access on the proceedings until the scope of that access had been established by independent analysis, raising the possibility of the amendment of the Defence to include a counterclaim. The plaintiff's solicitors responded the same day opposing the deferral of the mediation, as they were "fully prepared to proceed" on 19 January. It was deferred at the defendant's request.

21. On 19 January 2026 the plaintiff's solicitors replied to the 9 January letter:

"We have had a consultation with our client on Friday last I6th January and have taken instructions from him on the issues raised by you in your correspondence. As you are aware, due to our client's ongoing health issues, it has not been possible to take instructions until now.

We respond to the various matters raised as follows: -

Our Client's sick leave: Further to our client's appointment with his doctor on the 16 th January last he has been further certified as being unable to attend work until 30th January. In any event, your proposed resumption of a disciplinary process on the day that an employee returns to work from extended sick leave is not appropriate. We suggest that a decision on this should not be made until our client has been medically certified as fit to attend work, taking into account any occupational health recommendations made by medical practitioners".

22. As to the Incident itself, the letter stated that the plaintiff used his own login user ID to access the system, adding that:

"The administrator permissions were provided by and were authorised by the Company. insofar as your letter makes reference to unauthorised access of the Company's computer system, this is patently not correct, Our client had at all times been authorised to access the computer system.

Further to your suggestion that you read our correspondence as "implicitly acknowledging" certain matters, please also note that there is nothing implicit in our correspondence in this regard. Our client has not instructed us as to the material which might have been accessed, nor has he shared that information with us. He has also instructed us that he has not shared that Information with anyone else and has not used this information in any way.

You might note further that we did not consider. nor do we consider that it is appropriate to ask our client this information, which we are instructed has remained at all times private.

Further to your request seeking costs occasioned by what you describe as our client's unauthorised access of the Company's computer system, you will note our client's position set out above, that he was authorised to access the Company's computer system ... Our client has already provided you with confirmation as to the material that was accessed, which is also clearly discernible from the system itself. Notwithstanding same, the Company has decided to conduct an analysis. This is not a cost that has been incurred by our client. Having been incurred by the Company this is a cost that will fall to be discharged by the Company. It is also relevant to your client's request, that our client is absent from work on sick leave and that your client has determined that this is on an unpaid basis. In the circumstances of the issues to be resolved between our clients, it is our view that the question as to the discharging of any such cost incurred by your client, is premature. In the event that mediation does proceed (and we await your client's confirmation of this), we would propose that this issue be included".

The letter attached a copy of proposed undertakings and protested the deferral of the mediation.

23. The defendant's solicitors' 23 January 2026 letter; (a) noted that, with the plaintiff having been certified as unfit for work until 30 January, the Collingwood Complaint hearing would be adjourned, again proposing an appointment with the company doctor on his proposed return; (b) disagreed with the  response on costs, reiterating that the costs flowed " from the data access itself and the approach taken by your Client to questions about its nature and scope". The letter also noted that the plaintiff's position "as now communicated" by the plaintiff's solicitors' 19 January letter was that the inference which the defendant's solicitors had drawn from the plaintiff's solicitors' 18 December letter was not the meaning which the correspondence sought to convey, observing that:

"The position now urged contradicts the assertion in the rest of your letter that "your client has already provided ... confirmation as to the material that was accessed". Previous correspondence from your office acknowledged only that your Client had granted himself access to a "significant number" of emails, in accounts other than the accounts of Irene Irish and Richard Kervick. The statements made were also qualified by reason of the fact that you had been unable to obtain full instructions.

The implications of the foregoing are for another day however, and we will work on the basis communicated on 19th: namely that the matters raised by ours of 16th December 2025 (i.e. paras (iv) and (v) of ours of 16th December) which we had inferred were accepted by your Client, are not accepted;

(i) the Company had also inferred that the matter set out at paragraph (vi) of ours of 16th December, 2025, was also accepted: i.e. that your Client accepted that none of the directors or personnel gave their permission to him to access data of the type in question on these dates.

It is noted that issue is now taken by your Client to the data access being described as "unauthorised'. Once again, there seems to be something of a contradiction, since the impropriety of the data access by your Client is tacitly reflected in the fact that your office has, quite properly, declined to be copied with or to review the material accessed.  Be that as it may, we understand your Client's position to be that his status as administrator 'authorised' him to access the data of the individuals concerned without first seeking their permission; and

(ii)the Company reserves its position to seek liberty to amend its pleadings in due course if necessary".

The letter agreed that the deferral of the mediation was regrettable, blaming the plaintiff:

"... the deferral was caused by your Client's accessing of data and uncertainty about the precise nature and scope of the data access. This and your Client's unwillingness or inability to give clarity in respect of this data access have made it necessary to involve an expert analyst to establish the nature and scope of the data access. It is hoped that, when the nature and scope of the data access has been clarified that mediation can proceed".

24. The plaintiff's solicitors' 27 January letter, inter alia, reiterated that " our client does not accept that the access was unauthorised" and o n 28 January 2026 the plaintiff's solicitors issued a detailed letter before action, threatening oppression proceedings under s212 of the Companies Act 2014.

25. The plaintiff's solicitor's 30 January letter responded to the 23 January letter by, inter alia, noting that their client's further sick leave certificate until 13 February, stating that the disciplinary hearing should not be scheduled on the day of his return to work "whenever that may be". The letter also noted the plaintiff's instructions that he had been certified as not fit for any form of work so it was not appropriate for the defendant to send any communication to him and that the continued exchange of correspondence between solicitors in respect of the Incident was inappropriate as it was "an internal HR matter and should be dealt with as such".

26. Emails dated 31 January and 2 February 2026 between the defendant's solicitors and Mr D'Arcy (the defendant's independent forensic expert) summarised the latter's initial findings from his examination of two devices received from the plaintiff as, inter alia:

a. he had found evidence of documents viewed and downloaded on the Surface Pro including, for example, at least one invoice from the defendant's solicitors to its client in respect of work on mediation, an outline of litigation strategy issued by the defendant's solicitors: correspondence marked "strictly private and confidential" and a letter from the defendant's senior counsel to its solicitor.

b. He also found downloaded documents relating to the Collingwood Complaint and financial information relating to Derek and Liam Dalton including property transactions, valuation materials, correspondence with solicitors in respect of matters apparently unrelated to the proceedings, documents relating to property and other transactions apparently unrelated to the proceedings.

c. In addition, medical records of the wife of one of the directors and personal records (including passport details and utility bills) of Liam Dalton were "downloaded and viewed on the Surface Pro".

27. The defendant's solicitors observed to Mr D'Arcy that:

"... the foregoing is very much a high-level interim account of your findings in relation to the material downloaded or viewed on the Surface Pro and that your work is ongoing. Nevertheless we consider that it is appropriate to raise this with the solicitors for Mr Kelly now, rather than awaiting the completion of your work and a formal report, so that they can respond to it. This is in light of the fact that Ms Collingwood (whose account was on the face of it, accessed) has brought a complaint against Mr. Kelly for bullying... Given this and given the apparently incontrovertible evidence that the Surface Pro was used to download or to view both 'without prejudice' material and the personal data of a number of non-parties (including private financial information, medical records of Ms Rebecca Dalton end the personal data of Mr. Liam Dalton) it may also be necessary now to notify third parties and/or the Data Protection Commissioner.

Accordingly, your confirmation that we have correctly understood the position would be very much appreciated".

Mr D'Arcy confirmed that the summary of his initial findings was correct.

28. On 3 February 2026, the defendant's solicitors wrote to the plaintiff's solicitors, stating that although examination was ongoing, the forensic analyst's initial analysis suggested that instructions given to the plaintiff's solicitors by their client (as communicated in correspondence) were inaccurate. Noting that such findings raised issues of the most serious nature, the defendant's solicitors invited proposals. (There has been no suggestion that the letter should be regarded as anything other than an open letter).

29. On 4 February, the plaintiff's solicitors replied that it was "entirely inappropriate" that they should be asked to comment and engage on a letter which was not addressed to them and which set out extracts of a report which they had not seen and was carried out by a person whose credentials and independence had not been confirmed. It added that:

"in any event as we have previously advised you, this is an internal HR matter which should be dealt with as such once our client returns to work from sick leave. It is not appropriate to be engaging between solicitors in relation to this matter".

While generally not denying and not dealing with the specifics of the summary, including the references to the emails downloaded, the plaintiff did deny connecting an external data key to his Surface Pro. For present purposes I am assuming that this was the case and that the access during the Incident was limited to the email accounts acknowledged by the plaintiff.

30. On 11 February the defendant's solicitors reverted giving details of Mr D'Arcy's expertise and independence (which the plaintiff never subsequently queried) expressing disappointment that despite protracted correspondence:

"only limited instructions had been given on some matters and your Client has declined to bring other matters to finality. The fact that he is absent on sick leave cannot absolve your Client from giving a detailed account of what he did on 13ᵗʰ and 14ᵗʰ and how the consequences of his actions are best remediated.... As you state in your letter, the data access undoubtedly raises "internal HR" issues which will fall to be dealt with on your Client's return from sick leave. This is, with respect, not the only issue which your Client has to address, however. There are the costs occasioned by the data access, including but not limited to the costs thrown away in the adjourned mediation and the costs of the forensic enquiry into your Client's lap tops. There are Data Protection issues generally. There is also the issue of how the proceedings currently pending before the High Court have been impacted by your Client's actions. The foregoing arises from your Client's admitted actions. Further inquiry into the nature and scope of his actions is continuing and may well add to or deepen the issues raised".

31. The defendant proposed to bring these issues to the Court's attention, noting that a formal motion might be required in view of the gravity of the issue and to deal with issues such as amendments to the pleadings, agreed undertakings or, in default of such agreement, an application for injunctive relief. It noted that the defendant would request the determination of the costs of the unsuccessful application for interlocutory relief and that the Court would be invited to consider what directions should be made for the hearing these proceedings, in light of the Incident, raising the possibility of seeking orders which were subsequently enumerated in the current notice of motion, including an order directing such steps by the plaintiff as might be necessary to avoid the dismissal of the proceedings in limina, adding that:

"For example, it may be that the Court would be persuaded by your Client that instead of dismissal, he would be required immediately to furnish a witness statement and a book of documents upon which he will rely at the trial herein...to ensure that no element of the evidence he proposes to adduce directly or indirectly derives from the data access carried out by the plaintiff".

32. On 16 February 2026, the plaintiff's solicitors responded as follows:

"We have already pointed out that if your client intends to raise an issue with our client in the context of his employment, that is a matter for it to deal with as his employer and not through solicitors. To date your client has not raised any such complaint with our client nor has it forwarded to him the report you refer to. It is a basic principle of fair procedures that a party is made aware of precisely that which it is accused of and offered an opportunity to respond to same. We have already pointed out the difficulty in you seeking to do this through solicitors and in the context of this litigation, as to do so would require our client to instruct us as to matters which you say are privileged and which we otherwise are unaware of.

We confirm again as we have previously that we do not know the content of any material which our client might have accessed. It may be that if this issue is raised in the context of his employment, that our client, if he requires legal representation, will need to engage a different firm and counsel.

Our client was authorised as the Managing Director of the Defendant to access the IT and email system of the Defendant. This access was never withdrawn or limited by your client. There was no unauthorised access of the Defendant's system. Our client has also confirmed that there has been no use of any data accessed. We have confirmed repeatedly that no such information has been shared by our client with his lawyers. We note the details you have provided regarding an expert that the Defendant has engaged. We trust that the Defendant will provide this report to our client.

Insofar as you refer to costs occasioned by the data access, this again is an internal employment matter and does not relate to this litigation".

33. The letter also criticised the defendant for having on three occasions caused a proposed mediation not to proceed suggesting that: "any issue that your client has in relation to any data allegations against our client can also be included in such mediation" and threatening that if the defendant remained unwilling to mediate, the plaintiff would apply to the Court in respect of the issue. The letter consented to the amendment of the defence and reiterated the plaintiff's position as to undertakings denying that there was any basis for injunctive relief or the other remedies referred to in the previous letter.

34. The defendant's solicitors 18 February reply stated:

"With respect, the issues broached in your letter have been the subject of protracted correspondence by this office, since the data access complained of took place, without your client being able or willing to bring them to finality. We do not propose to debate the matter in further correspondence. It is sufficient to note that we do not agree with your characterisation and do not agree that the conduct of your client in accessing material raises solely disciplinary matters.

There are other consequences, and these are appropriately resolved by the Court and if Mr. Justice Kennedy believes that it is appropriate or necessary, before him.

As to mediation, it was the uncertainty surrounding the nature and scope of your client's accessing of data that prevented the mediation from occurring as scheduled. As it happens, your client would have (presumably) been unable to attend due to the extension of his sick leave.

We note that you reiterate that your client was "authorised" to access the data which he accessed.

In our very respectful view, the contention that your client was "authorised" to access without prejudice material, material which attracts litigation privilege and personal medical records and other private material (while absent on sick leave and where undertakings governing the furnishing of information were in place) is unsustainable and we do not propose to debate the matter further.

Turning to the specific matters:

(i)      your client's consent to the amendment is noted and we now attach Amended Defence and we look forward to receipt of the Reply to this Amended Defence within two weeks (i.e. on or before 25th February) as previous correspondence makes clear, we require undertakings in the form sought and we require these to be given to the Court, so as to be enforceable by the Court. In the absence of this, we will have to apply for injunctive relief.

(ii) the written submissions for a determination of who should bear the costs of your client's unsuccessful application have been exchanged. We agree that the issue can be dealt with whenever Mr. Justice Kennedy considers it appropriate: The data access by your client impacts on this determination in the manner set out in our submissions.

(iii) the contents of our correspondence is, in our view, clear. It was open to your client, notwithstanding the fact that he was on leave, to give a precise account of the reason for and nature/scope of the data access which he carried out He has been unable or unwilling to do so. A laborious (and increasingly expensive) analysis has had to take place and while a report is awaited, the contours of your client's actions are now coming to light. We are of the view that the fairness of the trial has been compromised and that orders of dismissal/remedial directions for the mode of hearing are warranted.

(iv) we do not accept the characterisation set out in your letter and we remain of the view that a direction given by a judge of the High Court cannot be simply varied by the parti.es unilaterally and should (at a minimum) be notified to the judge in question..."

35. The amended Defence:

a. dealt with the Incident and advanced a counterclaim, alleging that the plaintiff used information entrusted to him as MD to access the defendant's computer systems and/or to access the three email accounts of his two co-directors and the employee who had brought a complaint against him for bullying (which was then pending), viewing and/or downloading significant numbers of emails and attachments without the defendant's or the three individuals' consent.

b. Noted that the documents accessed or downloaded included:

(a) correspondence with the defendant's solicitors and counsel's correspondence

(b) medical records relating to the wife of one of the directors

(c) personal data

(d) documents emanating from a witness in the Collingwood Complaint

(e) private and confidential documentation of the plaintiff's codirectors and others.

c. Alleged that the plaintiff's actions were carried out knowingly, intentionally or recklessly without any lawful excuse and in breach of applicable law, the law relating to privacy and/or confidentiality and the rules protecting solicitor/client communications from disclosure.

d. Alleged that the plaintiff's actions were carried out with the intention of undermining the defence of the proceedings, undermining the Collingwood Complaint, causing damage or embarrassment to the defendant and/or obtaining litigation advantage.

e. Alleged that the plaintiff's actions were negligent, in breach of his duties to the defendant and in breach of law relating to data processing and the protection of privacy.

f. Alleged that the plaintiff was disentitled to the equitable reliefs claimed by reason of his contumelious actions and/or his breach of the principles of Equity.

g. Alleged that the plaintiff had exposed the defendant to complaint or suit by the individuals involved and/or had caused it to suffer damage, inconvenience and loss including special damage including the ongoing forensic investigation cost, the ongoing cost of remedial steps, the costs of the abandoned mediation and ongoing legal costs.

The Grounding Affidavit

36. The defendant's solicitor's affidavit grounding the application:

a. recounted the history of the proceedings, noting at para. 5 that, after the Judgment had indicated that the plaintiff should be furnished with appropriate information as MD, on 10 December I overruled the plaintiff's objections to the undertakings subsequently furnished by the defendant to ensure that business information was shared with the plaintiff, exhorting the parties to co-operate in the exchange of such information, observing that the plaintiff should not abuse his access to information, observing, correctly, that when making these remarks to both sides, I would scarcely have anticipated the plaintiff's actions days later.

b. Noted that on 26 November 2025, the day before the Judgment, the plaintiff furnished a doctor's certificate stating that he was unfit to work but he attended a board meeting on 11 December 2025 and a staff party on 12 December 2025. Further certificates had subsequently been furnished and, as at the issuing of the motion the latest certificate was due to expire on 27 February 2026.

c. Noted that although the defendant was cognisant of its undertaking to provide information relating to work, that was not appropriate due to the plaintiff's absence on sick leave. The defendant asked the plaintiff's solicitor whether it should furnish information in accordance with the undertakings during the sick leave and it was eventually asked not to do so.

d. Noted that hearing of the Collingwood Complaint against the plaintiff was suspended given his absence on sick leave. The complaint had been investigated and it had been established that there was a case to answer. The hearing was scheduled for 19 November but was repeatedly adjourned due to the plaintiff's sick leave and remained pending.

e. Recounted the details of the Incident. On Monday 15 December, the defendant's IT team discovered that the company's computer systems had been accessed over the weekend and on further inquiry, it appeared that the plaintiff had accessed email accounts used by the defendants' officers and employees.

f. Noted that the plaintiff's solicitor's 23 December letter was silent on important points raised by the defendants' solicitor's previous letter. Given that the 23 December letter accepted that the plaintiff had accessed a "significant number" the solicitor initially understood that he admitted having accessed private emails and documents, including privileged documents, but his solicitor subsequently denied that the plaintiff intended any such inference to be drawn and made no admission as to the exact nature and scope of the Incident. As a result, the defendant had to carry out a forensic investigation, which confirmed that the plaintiff accessed a wide range of private and privileged material relevant to these proceedings as well as a wide range of material relevant to the disciplinary process against him.

g. Noted the controversy as to whether the data access was unauthorised, with the plaintiff's solicitor objecting to it being described as "unauthorised', stating that the plaintiff "did not act unlawfully and that his administrator permissions entitled him to this access". He noted that the Court was not asked to make any finding at this stage as to whether the data access was unauthorised but that a claim that it was anything other than unauthorised was at odds with the facts because:

"The plaintiff's status as administrator may have facilitated him in accessing email accounts but I am instructed by the defendant company and believe that, at no stage, was authorisation or consent to such data access requested by the plaintiff. Nor was there an implied authorisation or consent to the accessing by the plaintiff of private and/or privileged communications and documents. The actions which have been admitted by the plaintiff (i.e. of accessing email accounts of fellow directors and a complainant in a disciplinary process against him, without specific cause or consent) falls outside anything that could be described as part of his employment duties. This is particularly the case where the plaintiff carried out the data access at a time that he was certified as being unfit to work due to illness, was at home and was accessing the email accounts outside of office hours. Furthermore, the plaintiff would have been aware of the policies of the defendant company in relation to the use of information technology".

h. Observed that the actions were most serious, given the nature of the material accessed and since the plaintiff did not suggest that it was a limited or inadvertent data access and that d ue to the inconclusive nature of the plaintiff's response, it was necessary to make arrangements over the Christmas period to establish the nature and scope of the data access.

i. Confirmed the details of the forensic process undertaken by an independent analyst retained at considerable expense. He also noted indirect costs such as those arising from the postponement of the mediation hearing.

j. Referred to the defendant's request for undertakings, explaining why it was dissatisfied with the plaintiff's response, necessitating the application for injunctive relief and offering an undertaking as to damages.

k. Referred to the independent analyst's preliminary findings.

l. Noted that he did not make any accusation of impropriety against the plaintiff's solicitor, accepting the latter's assurance that they had not had sight of downloaded materials but observing that the correspondence had not treated the plaintiff's actions as he would have expected and that it remained unclear what precautions were being taken to ensure that instructions received by them from the plaintiff were not influenced by his viewing of material (including privileged material) to which the plaintiff should not have had access.

m. Observed that while he could not recall any privileged correspondence which he would be embarrassed to put before the Court, the fact remained that the plaintiff had downloaded and viewed material which he was not entitled to view, including privileged material. That concern had been confirmed by independent analysis of one of the devices which the plaintiff said that he used.

n. Noted that the correspondence from the plaintiff's solicitor did not address the plaintiff's purpose when accessing the material, much of which related to these proceedings and the Collingwood Complaint, but which also included also commercially sensitive material and personal data (including medical records).

o. Noted that while the fact that an employee was on sick leave might ordinarily excuse a failure to address issues in a timely way, there had been engagement between the plaintiff and his solicitor on some issues but only "limited instructions" on others. In particular, nearly eight weeks after the data access, the plaintiff had yet to furnish a comprehensive account of his actions. At the same time, s212 proceedings had been drafted on his behalf and a letter before action had issued which largely rehashed the allegations in these proceedings.

p. Noted that the last word on the matter from the plaintiff's solicitor at the time of swearing was the 16 February 2026 letter expressing the view that the Incident was an internal HR matter. The defendant's solicitor noted that while the Incident raised disciplinary issues, that wa s not the end of the matter. The proceedings were to be assigned a date for hearing, but the plaintiff's actions necessitated amendments to the Defence and directions.

q. Observed that it would now seem unsustainable for the plaintiff to seek equitable relief, noting that the dismissal of those claims would considerably shorten the time needed for hearing and that the issue could have an impact on the manner in which the costs of the unsuccessful application for interlocutory relief should be determined.

37. The forensic expert's affidavit confirmed his credentials and expertise and recounted the circumstances of his instruction, the forensic processes and the preliminary conclusions reached. These generally accorded with the summary in correspondence. Key points from his affidavit included his findings from examining the Surface Pro that:

a. he was able to forensically recover many documents although there had been an attempt to delete some.

b. He had cross-referenced his Surface Pro analysis to the emails (referenced in the defendant's solicitor's 16 December letter) which had been identified by the defendant's IT department as having been accessed over 13-14 December, confirming that the  Surface Pro was the device on which two of those emails had been accessed, the documents referring to "meeting with SC" and "Script options for Wednesday hearing", the latter marked "strictly subject to Legal Professional Privilege". **** He noted that work was ongoing in respect of the other four documents, but numerous other similar documents had been identified on the plaintiff's Surface Pro including:

i. documents referring to counsel such as a letter from Senior Counsel to the defendant's solicitor dated 25 October 2025.

ii. an email from Derek Dalton to the defendant's solicitors enclosing an attachment called "25.07.16 Meeting with SC" which was a transcript of a conference call between the defendant, its solicitors and counsel on 16 July 2025. The email file itself had been deleted but Mr D'Arcy could establish that the file was accessed on the Surface Pro by the user 'johnpaulkelly' on 14 December 2025.

iii. Documents referring to statements of bullying including 10 emails from Bonnie Collingwood such as an email with an attached file called "Statement of Bullying 17.07.2025.docx " which contained her statement regarding the bullying allegation. Although Mr D'Arcy could not determine when the document was created on the Surface Pro, he could identify similar documents being accessed on the device on 13 December 2025.

iv. An email from sent by Mr Derek Dalton to the defendant's solicitors on 6 October 2025, copied to counsel, with the subject "Re: 25.10.07 LTR to Solr re Disciplinary MTG Invite" which was accessed on the device on 14 December 2025.

v. An email from Derek Dalton to Liam Dalton on 6 October 2025 with the subject-line "FW:Script options for Wednesday Hearing Strictly Subject to Legal Professional Privilege" which forwarded an earlier email from counsel to the defendant's solicitor, copying Derek Dalton and others which discussed "discovery" within its body.

vi. Another email was sent from Derek Dalton to Eoin Dalton on 19 June 2025, forwarding an earlier email from the defendant's solicitor with the subject line "Re: 25.06.17 JPK Proposal Further Response V3".

vii. An email from Derek Dalton to Liam Dalton on 6 October 2025 with the subject "FW:Script options for Wednesday Hearing Strictly Subject to Legal Professional Privilege", forwarding an earlier email from junior counsel to the defendant's solicitor and senior counsel along with, inter alia, Derek Dalton.

d. His investigation and recovery of deleted files identified evidence on the Surface Pro of other downloaded documents, and he exhibited a large selection of redacted copies. These included some of the documents referred to in the solicitors' correspondence, namely an invoice from the defendant's solicitors addressed to the defendant, an outline of litigation strategy issued by the defendant's solicitors to the defendant; correspondence marked "strictly private and confidential " and at least one letter from senior counsel to the defendant's solicitors.

e. The redacted exhibits also included documents downloaded on the Surface Pro relating to the Collingwood Complaint, financial information relating to Derek and Liam Dalton, medical records of one of their spouses and records (including copy passport details and utility bills) of Liam Dalton.

f. Noted that although the Surface Pro was used to access and download documents on 13 - 14 December, there were emails and documents accessed before those dates. (I disregard this issue for now as it is a matter of controversy).

g. Noted the laborious nature of his analysis, which was made more time-consuming because the plaintiff's only acknowledgment was that a "significant number" of emails for three email accounts were accessed. It would be several weeks before he could correlate his findings from the devices to the defendant's computer system. While his investigations were ongoing his initial findings confirmed that; (i) the Surface Pro was used to access the defendant's computer system; (ii) the email accounts for Derek Dalton, Liam Dalton, Bonnie Collingwood and Irene Irish have been identified to date as having been accessed (the plaintiff only admits accessing three of these); and (iii) it was used to access emails marked "legal professional privilege" and a variety of documents were downloaded to the Surface Pro which were marked "privileged", "private" or "confidential".

h. Identified numerous further examples of documents accessed by the plaintiff.

38. The plaintiff's replying affidavit is worth quoting at length:

" 3. I say, by way of explanation and not excuse, that at the time I accessed the data, which I have admitted from the outset, I was under extreme stress as a result of the ongoing matters in relation to my employment and these proceedings. I had already found the situation in my employment prior to the issuing of these proceedings and the hearing before this court in October 2025 to be extremely distressing and stressful. However matters became much worse for me where I also suffered an impact on my health in or around late November 2025. I say that I have been on stress related sick leave, since the 26 th day of November 2025 having been certified as unfit to work, first by my own GP and subsequently by the Defendant's occupational health professional. At my most recent appointment with my GP last Wednesday 25 th February 2026 my GP issued a further certificate which covers the period up until 13 th March 2026. She is also arranging to refer me to a consultant psychiatrist for assessment of my mental health.

4. My situation at work was already very difficult prior to these matters, but I was doing my best to perform my role within the constrained circumstances in place at the time. Matters were however further compounded by disciplinary proceedings commenced against me by the Defendant, in or around 16 th July 2025. I have always disputed the underlying complaint of bullying, the substance of which in part related to the changes in reporting structures that are subject of the within proceedings. However at all times, I cooperated fully with the investigation process and the appeal process, notwithstanding that in my view, this was not conducted in a manner that was fair or appropriate. I also held the view, as already averred by me in these proceedings, that the disciplinary process and the underlying complaint was initiated for the purposes of achieving the termination of my employment which would have such a detrimental effect on my life and that of my family. My livelihood and everything that I have worked so hard for was at risk.

5. I cooperated fully with the disciplinary process and the underlying investigation and appeal and had tried to point out in the course of the investigation and to the Defendant, the issues that were unfair in how it was being conducted but my representations in this regard were either disregarded or not accepted and I felt utterly helpless in trying to address these issues.

6. In the face of this horrendous situation, I was so stressed and in such a desperate position that I accessed the Defendant's computer system. I make this averment not to excuse what I now understand and accept to have been a grave error of judgment and something that I should not have done, but to explain my thought process at the time.

7. I say that I apologise unreservedly for this, and I acknowledge that it was a serious error in judgment. I say that I have not used any of the information read by me and I confirm that I did not share any of the information with my solicitors, counsel, or any other party. I further confirm that I have not retained copies of any of the information read by me in any format, be that electronically, in hard copy or otherwise.

8. As Managing Director of the Defendant I am authorised to fully access the Defendant's computer system. I used the access provided to me by the Company to view information stored on the Store-All network. At the time that I did this, I was of the view that I was authorised to access the system. I say that on Saturday December 13 th 2025 using my own credentials johnpaulkelly.ie and from my company Surface Pro tablet I granted myself access to the mailboxes of Derek Dalton, Liam Dalton, Bonnie Collingwood, Irene Irish and Richard Kervick at their Store- All addresses and Derek Dalton's Blackstar email address. I scrolled through the mailboxes of Liam Dalton, Bonnie Collingwood and Derek Dalton's Blackstar mailboxes at various times on Saturday 13 th and Sunday 14th December 2025. I say that I did not look at the mailboxes of Richard Kervick, Irene Irish or Derek Dalton's Store-All email address.

9. I say that I saved some emails to the company Surface Pro tablet, but I deleted them on Tuesday 16 th December 2025 following receipt of the letter of 16 th December 2025 from Ormondes Solicitors which required confirmation that any copies of downloaded items had been destroyed...

10. I say that the only device that I used for this access was the company Surface Pro and I confirm that I did not download any documents or material to any device other than the Surface Pro. I say that I did not otherwise retain any of the data accessed by me on 13 th and 14 th December 2025. Further I did not download any such data to any other device from the company Surface Pro.

11. I say that with regard to paragraph 5 of Mr Darcy's Affidavit, I confirm that I deleted documents as per the instruction at point 'f' of the letter from Ormonde Solicitors of the 16 th December 2026, as exhibited at exhibit SOI of the grounding affidavit of Sean Ormonde, there being some conflict between the instruction at point 'c' and 'f of that letter. I am fully aware that these would be recoverable by an IT expert. I did not clear the cache of the browser as this would have been tampering with the preservation of the data, and I was instructed not to do this by the said letter which I took most seriously.

12. I say that with regard to paragraph 6 of Mr Darcy's Affidavit I say that I do not understand the conclusion that "the email account of Irene Irish was accessed using the Surface Pro". I say that the correspondence provided at exhibit PD2 of Mr Darcys affidavit between Helen Barry and Irene Irish was most likely provided to me by Ms Barry as part of a GDPR request I made to Ms Barry, however, I say that as I do not have access to my email currently, I cannot definitively confirm this. I am adamant that to the very best of my recollection, that I did not view Irene Irish's sent or received emails.

13. I say that while "material emanating from Richard Kervick was viewed or downloaded on the Surface Pro" as referred to in paragraph (6) of Mr. Darcy's email, this material was not obtained though accessing Richard Kervick's email account. Material emanating from Richard Kervick would have been sent to this deponent from various staff members of the Defendant. Again it is not possible for me to provide the exact details of this at this point as I do not have access to my email account.

14. Further to paragraph 11 of Mr Darcy's Affidavit I say that I did not insert a USB storage device into the laptop on 9 th December 2025, which preceded the days on which the data access occurred as I do not own such a device. I do own a computer mouse which I connect to laptops and other such devices through the USB port, the same place one would connect a USB storage device, and this may be what Mr Darcy is detecting. However I say with certainty that I have not copied any material onto a USB stick or any such storage device. I can confirm that I have not downloaded any of the emails accessed by me to a USB device. I can further confirm that I have not downloaded, printed, or otherwise retained copies or records of the material viewed in any format whatsoever.

15. I say that with regard to paragraph 12 of Mr Darcy's Affidavit, that all evidence will align with the fact that I only accessed these emails on 13 th and 14 th of December 2025. I say that any emails and documents accessed prior to that date are connected with my own email account. I say that with regard to paragraph 13 of Mr Darcy's Affidavit, I confirm that the only access of emails other than my own emails was through the Surface Pro device and was on the weekend of the 13 th / 14 th of December 2025. I say that any emails and documents accessed prior to that date are connected with my own email account.

16. I say that with regard to paragraph 13 of Mr Darcy's Affidavit, I confirm that the only access of emails other than my own emails was through the Surface Pro device and was on the weekend of the 13 th / 14 th of December 2025. I confirm that I did not download any documents to a USB device. I say that I have offered to provide my telephone for forensic examination if required, and I have requested that I be in attendance for any such examination. No request has been made of me to date to progress this.

17.I say that with regard to paragraph 14 of Mr Darcy's Affidavit, this Deponent responds as follows:

(a) I have accepted this from the outset

(b) I have stated from the outset that I accessed emails of Derek Dalton, Liam Dalton and Bonnie Collingwood. However I do not accept that I accessed the email account of Irene Irish.

(c) With significant regret, I accept that this is the case.

18. I made a huge mistake and I accept that. However once this was pointed out to me I have honestly and fully cooperated with all that has been asked of me. I seek in this Replying Affidavit to continue to do so.

**

19.       I say that while I have always admitted the access of emails over the weekend of the 13 th and 14 th December 2025, I do dispute some of the conclusions of Mr. Darcy. I say that I have not had sight of the finalised report of Mr Darcy and cannot aver further as to his findings until the report is to hand.

**

20. In regard to the reliefs that have been sought by the Defendant in its Notice of Motion, I have never been asked to swear an affidavit of the nature sought at paragraph 1 prior to the motion issuing. However I have no difficulty in doing so and I have made the averments sought, in this Replying Affidavit. I say that I have already provided the Undertakings sought of me in writing on 19 th January last and have complied with these.

**

21. I understand that the Defendant is seeking various reliefs in the terms set out in paragraph 4 of the Notice of Motion. I say that my proceedings were issued having attempted first to engage in mediation with the Defendant to resolve the difficulties which occurred in my employment. I say that the claim within my proceedings is genuine and bona fide and is not an abuse of process. I have sought to engage in mediation on two further occasions but mediations which were convened did not proceed. I remain open and willing to seek to resolve all issues in dispute with the Defendant. The Defendant is unwilling to engage in mediation of the within proceedings unless the mediation includes the dispute between myself and Mr. Derek Dalton. I have not disagreed with this approach, but it has served to impede the possibility of engaging in mediation of the dispute in these proceedings. I remain willing to engage in mediation in relation to this dispute.

**

22. I say, with respect, that dismissing my proceedings or striking out reliefs sought in the Statement of Claim, as the Defendant has urged, would be disproportionate and drastic in the circumstances. My claim is not of a frivolous or vexatious nature. I have suffered greatly, and I continue to suffer by reason of the Defendant's actions. While I acknowledge that I made a mistake which I greatly regret, I did not use the information for any advantage, did not share it with my lawyers or anyone else, did not copy it, have admitted my actions and have sought to cooperate fulsomely with the Defendant with respect to its various requests.

**

23. Where mediation has not taken place, I have been most anxious for my claim to be heard as soon as possible and have complied with all court directions with a view to obtaining an expedited hearing. My situation has become so much worse since the matter was last before the court in that my health has been seriously impacted, I am on sick leave from work since late November and have not been paid any salary for a number of months. It is of vital importance to me that I be permitted to proceed with my claim and I ask that the court assigned to hear these proceedings, if I am permitted to proceed with my claim, determine whether the reliefs sought by me in my proceedings are appropriate or not, if I am successful."

39. The plaintiff's solicitor's affidavit, in summary: (a) said that the application was unnecessary, noting that the affidavit sought had not been requested prior to the motion issuing, that the replying affidavits had provided the "relevant averments" and that the plaintiff had furnished signed undertakings which were almost identical to the orders sought (recounting the correspondence as to the undertakings and explains the plaintiff's position); (b) claimed that the defendant was responsible for the repeated postponement of the mediation, accusing it of frustrating that process; (c) As far as the Incident was concerned, it:

a. referred to the initial exchange of letters on 16 and 19 December, stating that:

" each of (the defendant's) queries were answered fully and completely in correspondence by this office dated the 19ᵗʰ December 2025, despite the Plaintiff being on certified sick leave".

b. Took issue with averments in the Grounding Affidavit suggesting that the forensic analysis was necessitated by the plaintiff's purported inadequate responses to the initial queries raised, o bserving that the defendant always intended to have the plaintiff's devices forensically analysed and that, from the outset, the plaintiff indicated that he would cooperate with the said analysis, and did indeed do so, cooperating in the collection of his devices over the Christmas period and also confirming his willingness to provide his phone for analysis provided that it would be examined in his presence, given the "significant personal content" thereon.

c. Explained that it was and had always been the plaintiff's solicitor's and counsel's position that;

"it would be wholly inappropriate to interrogate the Plaintiff with regard to the content of the documentation he may have accessed. I have, in agreement with Counsel, firmly advised and instructed the Plaintiff herein not to disclose the content of the documents he may have accessed, to this office, to Counsel, or to any third party. It follows therefore, leaving aside the fact that the Plaintiff was and remains on certified sick leave, not possible to seek and or to obtain anything other than limited instructions with regard to the content of the material which the Plaintiff may have accessed. Further to do so would potentially create precisely the type of concern averred to on behalf of the Defendant in terms of possible litigation advantage. I say that the Plaintiff has never relied on in his instructions to this firm on any of the documentation or information accessed by him. I say that it has been made abundantly clear to the Defendant that no such material has been disclosed to this office".

d. Noted that, although the plaintiff had not disclosed privileged material to his office, even if he had done so any such material would remain privileged, and could not be proffered in evidence, noting that the plaintiff has made no attempt to introduce or rely on privileged material.

e. Opposed the dismissal of the proceedings on the basis that; (a) there was no suggestion that the plaintiff had attempted to rely on " any material he may have accessed" in the proceedings; (b) the events to which the proceedings relate predate the alleged accessing of the material at issue; (c) the Collingwood Complaint was at best peripheral to these proceedings; (d) if privileged material was accessed by the plaintiff, that material remained privileged, and could not be relied upon by him in any event; (e) the plaintiff provided all undertakings and assurances sought by the defendant (save as specified and for stated reasons.); (f) the proceedings were not an abuse of process, concerning a justiciable claim, which pre-dated the Incident and in respect of which I had determined that the plaintiff had established:

"a strong case that the changes to reporting lines and associated restrictions were so all encompassing in their impact on his role and responsibilities as to constitute a breach of contract".

f. Stated that:

" the serious matters raised in this application and pleaded in the Amended Defence are clearly factors for the trial judge to consider in the event of relief being awarded to the Plaintiff, if his claim is successful, this is a different issue to claiming that the proceedings constitute an abuse of process".

40. A final supplemental affidavit from the defendant's solicitors took issue with the plaintiff's statement that he originally understood that as MD he was authorised to fully access the defendant's computer system, confirming the defendant's instructions that; (a) no policy, direction, authorisation or consent from the defendant company authorises actions such as those carried out by the plaintiff; (b) administrator permissions are to enable a designated person (in this case, the MD) to manage the computer system and effect changes such as software installation and other changes affecting email and other functions; (c) such permissions are not for the purpose of accessing the email accounts of individuals without their knowledge or to view and download material enjoying legal professional privilege or which is otherwise private and confidential. The affidavit observed that the plaintiff's suggestion flew in the face of the Court's statements in the Judgment and on 10 December 2025 admonishing both parties to approach matters appropriately and not to abuse information given or received. It rejected the suggestion the suggestion that its questions about the Incident were "fully and completely" acknowledged by the plaintiff at an early stage noting that the defendant:

"...has an obligation to ascertain the precise nature and scope of the data access, particularly in the light of the correspondence and this process was commenced and continues. The cost of enquiring into the data access has been enormous in terms of management time and resources generally. The costs attributable to the data access alone are nearly €55,000 to date, exclusive of value added tax-which figure does not include costs thrown away due to the adjournment of the mediation hearing and other costs.

Discussion

41. I cannot resolve certain issues at this stage (such as the number of accounts accessed, the possible use of a USB drive or whether the plaintiff's ill-health excuses his actions, if that is asserted). Such issues would need to be resolved on the basis of further evidence and, possibly, cross examination. However, the plaintiff accepts that the Incident should not have happened. Matters have been made worse by subsequent actions, including his deletion of downloaded data. When the facts first emerged, he should have immediately acknowledged the gravity of the Incident, accepting that it should not have happened, even if it was necessary to couch it carefully because of the legal implications. The plaintiff and his lawyers should have taken steps to ensure that all evidence was preserved. In the event, the positions adopted by the plaintiff after the Incident detract from the credibility of the contrition articulated by him in response to this application. The inconsistency of approach in correspondence, affidavits and submissions does him no credit.

42. Notwithstanding previous protestations, the plaintiff now accepts that he should not have accessed the data. Indeed, this was implicit in his reaction when the issue first emerged. If the plaintiff's advisers had believed that there was any justification for accessing the material, then they would have responded differently from the outset. The plaintiff should also have furnished as much information as possible as to what happened, and why, and proposed steps to ensure that other parties were not prejudiced. He failed to do so, and the issue remains unremediated. The correspondence, affidavits or submissions on his behalf have failed to adequately tackle that responsibility on his part, a duty to the Court independent of the duties the plaintiff may owe the defendant or the individuals affected, whether under GDPR and privacy law, Company law or by virtue of his contractual obligations.

The Plaintiff's Explanations

43. The plaintiff's explanation for his actions boils down to his having been extremely stressed and to having originally believed he was authorised to access the documents. I do accept that he was stressed at the time of the Incident. This litigation was undoubtedly difficult for him in view of his and his family's long involvement in the defendant. Tensions were mounting within the workplace, to the detriment of all concerned, including the plaintiff, even if he himself had allegedly contributed to that situation. Litigation is stressful and all protagonists were also subjected to such pressure before - but even more so as a result of - the Incident. The plaintiff adverted to stress as explaining rather than excusing his actions. He has furnished medical certificates suggesting that he is unfit to return to work and has repeatedly secured the deferral of the hearing of the Collingwood Complaint, has failed to attend board meetings and has indicated that he does not (for now) wish to receive the company information which he was previously so anxious to obtain and was the subject of the 10 December hearing and undertakings. His health issues have also been cited as delaying or impeding his ability to respond to the defendant's legitimate questions about the Incident. However, the plaintiff was able to devote many hours over the fateful weekend reviewing and downloading enormous volumes of data and was also willing and able to proceed with the 19 January mediation hearing and able to give his solicitors instructions in respect of their detailed 28 January 2026 letter threatening s212 proceedings. Accordingly, the defendant's reference to an apparent selectivity in respect of the plaintiff's ability to engage with issues does not appear to be entirely unreasonable. I do not express a view on that issue, but I would require medical evidence (formally presented on the basis stipulated by the Rules of the Superior Courts governing the provision of such expert testimony) if it was suggested that such stress was a significant mitigant. In view of the gravity of the issue and the extraordinary circumstances, a suitably qualified medical expert, aware of the full context of the Incident, would need to acknowledge their understanding of their duty to the Court and provide detailed testimony in person explaining the plaintiff's medical condition and the degree to which it might account for his recent actions. They would need to be available for cross examination if required. Accordingly, for now I simply note the plaintiff's explanation as to stress without evaluating its credibility or determining whether it constitutes a mitigant.

44. I note the plaintiff's explanation that at the time of the Incident he believed he was acting within his rights. While it is fortunate that he never shared the downloaded documents with his solicitors, that would have been the obvious course if he believed that his actions were legitimate. Any such belief appears objectively unreasonable and it is surprising that a senior company officer and executive should have formed such a view. However, I make no finding in respect of his subjective state of mind at the time pending further evidence (and, if necessary, an oral hearing) in respect of the how the issue arose and how it has been dealt with. I simply note that the plaintiff says that he did not realise that accessing emails was wrong at the time but now accepts that he should not have accessed them.

The Defendant's Approach

45. The Incident is an extraordinarily serious and sensitive issue, and I commend the fair and measured approach which the defendant has adopted in its correspondence, affidavits and submissions.  It has raised legitimate questions as to what happened and why, the extent of the plaintiff's access to the various email accounts, the plaintiff's proposals to remediate the issue and as to the plaintiff's proposals to address the costs of the issue. Those questions deserved answers. It is unfortunate that the plaintiff has failed to appropriately engage, exacerbating rather than mitigating the consequences of his actions.

The Plaintiff's Response to the Incident

46. The plaintiff's failure to apologise explicitly at the outset and his attempt to resile from his initial implicit admission is remarkable:

a. his solicitors' initial (18 December 2025) letter seemed somewhat constructive, particularly given the speed of the response and the difficulty in taking instructions. The plaintiff did not deny accessing the accounts and did not seek to defend his actions. The letter briefly responded, at least to some extent, to the issue, committing "to preserve all information on his tablet in its current form pending expert analysis" (undertaking c) ** and to facilitate examination of his devices. Notably, he also agreed to undertaking f. This is significant because, as the defendant's letter made clear, f would only arise if the plaintiff admitted that one or more of the actions alleged at (i) to (iv) of the letter had been carried out by him or on his instructions (the remote access on 13 -14 December 2025 using his email account and "Global Administrator'' status to gain access to the electronic mail of company personnel, including those of his two fellow directors and the complainant in the Collingwood Compliant, during which over 1,100 emails including sensitive and confidential matters related to the proceedings and ongoing disciplinary hearings were accessed. The defendant's solicitors' 19 December 2025 email noted their understanding that the 18 December letter implicitly acknowledged responsibility for the actions outlined at (i) to (iv) of their earlier letter. I note that the plaintiff did not suggest otherwise in subsequent correspondence until 19 January, save that he "only" admitted accessing three email accounts, denying accessing two others.

b. For the avoidance of doubt, I agree that, viewed objectively, the 18 December letter and subsequent correspondence conveyed the impression that the plaintiff accepted responsibility for the actions identified at (i) to (iv) of the defendant's 16 December letter (save in respect of the two email accounts) - that was the only reasonable interpretation of the correspondence. If that was not the plaintiff's solicitor's intention, they ought to have made the position clear in their 18 December letter or on receipt of the defendants' solicitor's 19 December 2025 letter which recorded the latter's understanding of the plaintiff's position, rather than tarrying a month before doing so.

c. I should also note the feeble nature of the plaintiff's solicitors' eventual attempt to row back from their initial implicit concessions. They denied the defendant's entirely reasonable interpretation of their earlier correspondence without deigning to explain their client's actual position in respect of the events of 13 -14 December other than in the highly generalised terms of previous correspondence. In the circumstances, I can only conclude that the plaintiff's 19 January 2026 letter was a belated attempt to resile from the (somewhat) more transparent position which the plaintiff's solicitors initially adopted on their client's instructions a month earlier. The tardy change in position reflects poorly on the plaintiff. In my view he conceded points (i) to (iv) (save in respect of the two email accounts) at the outset and has not yet established a basis to resile from that admission.

d. To be clear, even the initial implicit acknowledgment did not go far enough; he should have volunteered an explicit and unequivocal apology at the outset. Unfortunately, all the plaintiff could bring himself to offer was the inadequate, implicit, apology, the half-hearted concession from which his solicitors sought to retreat a month later. An explicit apology only emerged in response to this application, which as noted below, detracts from its credibility. His affidavit characterises his actions as "a grave error of judgment and something that I should not have done" and a "huge mistake" but such contrition is not seen in the correspondence which preceded the motion, despite the fact that, as officers of the Court, his solicitors would have been alive to their responsibility to ensure that their client met his responsibilities to the Court, including responsibilities arising from extraordinary issues such as the Incident.

e. Furthermore, the plaintiff's initial response failed to adequately address the grave implications of his actions. Instead, it needed to be reinforced by further requests for clarification and assistance in remediating the problem which he had caused. Such clarification and assistance was not forthcoming save that two devices were produced for examination. Instead, his minimalist response was undermined by his solicitors' subsequent correspondence.

47. I have other concerns about the correspondence and affidavits on the plaintiff's behalf, the evolution of his positions (including positions which should never have been articulated), the failure to take responsibility for the rectification and remediation of the issue and the attempts to deflect from its gravity. For example:

a. the correspondence blandly relayed implausible instructions, expressing no contrition and failing to acknowledge the gravity of the issue. The Court is entitled to expect (as is the defendant) that the plaintiff's lawyers would have advised their client of his responsibilities. The failure to explicitly acknowledge the seriousness of the issue is striking.

b. It was primarily the plaintiff's responsibility to identify what needed to be done to address the issue to the satisfaction of the defendant and other affected parties (and the Court) and to take such steps, including by retaining a separate legal team to deal with the document issue if necessary. He did not do so. Instead, as the weeks went by, he and his representatives abdicated responsibility for the consequences of his actions, suggesting that their initial response sufficed. In particular, it was extraordinary that they should suggest that the issue had nothing to do with litigation and should be excluded from it. Their letters and affidavits even trivialised it as purely an internal HR issue. It is not the plaintiff's prerogative to unilaterally exclude relevant issues from the litigation. The evidence to date lends credence to the defendant's submissions that the Incident represented a deliberate attempt to secure an improper litigious advantage in these proceedings and in the context of the wider dispute, including the Collingwood Complaint. Accordingly, the Incident and its consequences and the plaintiff's subsequent actions are relevant and, in view of the counterclaim, inextricably linked to these proceedings.

c. The plaintiff's lawyers also suggested that they were only representing the plaintiff in the litigation, not in relation to the Incident. Once the Incident occurred, it was more urgent that the plaintiff should be represented and advised in respect of addressing the issues arising from it than in respect of the original claim. If the plaintiff's legal team was not providing such advice, they needed to ensure that their retainer was extended to allow them to do so; alternatively, they needed to advise their client to retain other lawyers to address that issue. Whether the plaintiff likes it or not, this issue is and will remain part of these proceedings, and he is solely responsible for that development. He urgently needed legal advice addressing such issues and his lawyers needed to make that clear to him and to provide such advice or to advise him to instruct a separate team to deal with that issue. If the plaintiff refused to take advice from them on the issue or to retain an independent team to advise on it, then it seems hard to understand how the legal team could continue to act in respect of the substantive claim while ignoring the elephant in the room.

d. It is ironic that the plaintiff's 16 February 2026 letter should have accused the defendant of a breach of fair procedures in not informing the plaintiff of the substance of the allegations against him in respect of the incident (by providing a copy of the defendant's forensic report) when there appeared to be no serious dispute as to the defendant's contentions that; (a) the plaintiff had inappropriately accessed his colleagues' email accounts, downloading private, confidential, sensitive and legally privileged documents to which he should not have had access; and (b) the lack of information was the direct result of the plaintiff's destruction of the downloaded data before his device could be examined, coupled with the vagueness of his response to the defendant's enquiries.

e. The plaintiff's attempt to characterise the Bullying Complaint as peripheral is inconsistent with the evidence on the injunction application. However, even if had been peripheral it would still have been a gross abuse of the plaintiff's position to use his access rights in order to view confidential documents relating to the complaint against him.

f. I was surprised by other contentions advanced on the plaintiff's behalf, the most extraordinary being the contention that the plaintiff's actions were "authorised" by virtue of his administrator privileges, a suggestion difficult to reconcile with the plaintiff's averment "I now understand and accept to have been a grave error of judgment and something that I should not have done". He also describes it as a "huge mistake". The suggestion that his accessing the information was authorised was repeatedly ventilated in letters from the plaintiff's solicitors and even on affidavit. For example, the 16 January 2026 letter stated:

" Our client was authorised as the Managing Director of the Defendant to access the IT and email system of the Defendant. This access was never withdrawn or limited by your client. There was no unauthorised access of the Defendant's system. Our client has also confirmed that there has been no use of any data accessed. We have confirmed repeatedly that no such information has been shared by our client with his lawyers".

It should scarcely have been necessary for the defendant's solicitors to swear an affidavit confirming that the MD administrator privileges were intended for specific business purposes (such as IT system requirements) and did not in any way mandate the plaintiff's actions on 13 -14 December. I find it difficult to credit arguments and submissions advanced by the plaintiff and his solicitors as to any contrary view. Any suggestion that the plaintiff was entitled to access the information by virtue of his position as MD and administrator privileges is belied by his solicitor's immediate confirmation that the messages had been deleted and their contents would not be disseminated by him. As the plaintiff's solicitors' s212 letter before action correctly observes, all powers entrusted to directors must be exercised in the best interests of the company, not for personal gain. Accordingly, whether viewed through the prism of contractual or fiduciary duties owed by the plaintiff as an employee, director and as MD, or in terms of GDPR and privacy rights, or in terms of the duty to respect other litigants' entitlement to legal professional privilege, the plaintiff's actions appear objectively indefensible and it was surprising that he or his representatives suggested otherwise.

48. The inconsistency in the plaintiff's position as to the appropriate use of his authority is illustrated by his allegation in his letter before action (threatening s.212 proceedings) that the respondents put their personal interests ahead of the company's. The affirmation of the responsibility on every director to put the company's interests first and to act in the company's interests rather than their own is a clear recognition of the statutory and fiduciary duties owed by all directors. However, the plaintiff's invocation of this fundamental tenet of company law and his criticisms of his fellow directors is difficult to reconcile with own actions.

49. Although the position robustly adopted in correspondence was that the plaintiff's access to the information was authorised, his replying affidavit retreated, stating (twice) that at the time he accessed the system he " was of the view that" he was authorised to do so (implying that he now accepts that he was not so authorised). I n the course of submissions, his counsel made clear that, when denying that his accessing private, sensitive and legally privileged material in his colleagues' private email files was unauthorised, they were not justifying his actions but emphasising that he had not broken into the system; he used administrator privileges lawfully extended to him. There is no suggestion that the plaintiff hacked into the system, but I consider that such privileges as were extended to the plaintiff (or any other officer or employee) fell to be exercised in the company's best interests and for legitimate purposes, rather than for personal advantage; the current evidence suggests that his actions have violated his colleagues' entitlement to privacy, their GDPR rights and, in particular, their entitlement to privacy and confidentiality in respect of legally privileged documents. Accordingly, it is difficult to see it as anything other than an abuse of the plaintiff's position that he should use his administrator privileges to gain access to material to which, as the plaintiff must surely have appreciated, he should not have been privy. To be clear, in my view it would not be a mitigant if an individual such as the plaintiff abused his administrator privileges rather than hacking into the system; the abuse of the responsibility vested in a senior executive officer and employee would be a breach of trust which is arguably more iniquitous than an outsider wrongfully accessing such data.

50. The recriminations over the delayed mediation are another example of the plaintiff's delusional stance. An early attempt to mediate foundered over a dispute as to the issues to be covered. It does not appear to me that the defendant's position was unreasonable. Part of the logic of any such process is to endeavour to resolve all related issues, which may include issues and parties extending beyond those in the pending proceedings. I would not fault the defendant for its stance. However, the parties resolved that issue. The deferral of the 19 January mediation was more significant and was entirely the plaintiff's responsibility. Even leaving aside the contrast between his professed ability to proceed with the mediation but not to participate in the hearing of the Collingwood Complaint, there was no reality to proceeding with the mediation as a result of his actions until the consequences of the Incident had been clarified and addressed. The plaintiff admits his actions in general terms but has still not provided an adequate explanation or offer full details of what he had done. It appears from the defendant's investigations that the plaintiff had wrongfully sought to access confidential, private and legally privileged documents, including privileged documents relating to the litigation, the Bullying Complaint and even the proposed mediation. These are not actions conducive to constructive negotiations or mediation. The latter point alone rendered the deferral of the mediation inevitable. The defendant could not have been expected to proceed until such issues have been clarified. Responsibility for the abandoned mediation (and the costs wasted thereby) rests with the plaintiff; his attempts to blame the defendant are unsustainable.

The plaintiff's deletion of the downloaded documents

51. While the incident itself was bizarre, the plaintiff's subsequent behaviour was also extraordinary. His solicitors' 18 December letter confirmed his undertaking to "preserve all information on his tablet in its current form pending expert analysis" (undertaking (c)). In fact, he simultaneously destroyed the downloaded material. He says that he did this in accordance with undertaking (f) as requested by the 16 December letter which sought confirmation (which the plaintiff provided) that

" no copies, notes or other records have been made of any material remotely accessed or that all such copies, notes or other records have been destroyed ". **

52. His affidavit states that:

" 9.... I saved some emails to the company Surface Pro tablet, but I deleted them on Tuesday 16 th December 2025 following receipt of the letter of 16 th December 2025 from Ormondes Solicitors which required confirmation that any copies of downloaded items had been destroyed...

11.... I confirm that I deleted documents as per the instruction at point 'f' of the letter from Ormonde Solicitors of the 16 th December 2026... there being some conflict between the instruction at point 'c' and 'f of that letter. I am fully aware that these would be recoverable by an IT expert. I did not clear the cache of the browser as this would have been tampering with the preservation of the data, and I was instructed not to do this by the said letter which I took most seriously".

53. While I initially understood from the plaintiff's affidavit that the parties agreed to the deletion, my review of the correspondence satisfies me that that was not the case and the plaintiff's affidavit was rather affirming his somewhat ambiguous position that he thought he was complying with the defendant's solicitor's instructions when he deleted the downloaded data. It is difficult to reconcile that stance with the correspondence. The primary undertaking sought from and given by the plaintiff, undertaking c, was unequivocal in its demand for a commitment to preserve all information on the equipment and devices in its current form pending expert analysis, a commitment which the plaintiff readily volunteered. However, rather than preserving the evidence in accordance with undertaking c, the plaintiff deleted the downloaded emails, apparently in reliance  on undertaking f (which, significantly, only applied if the plaintiff admitted the summary of the incident set out at i-iv of the 16 December letter), in which event the plaintiff was required to confirm that the downloaded materials "have been destroyed".

54. The plain meaning of the letter as a whole, in keeping with the normal obligations on litigants and their legal advisors, was that undertaking (f) was subordinate to (c) and was seeking confirmation that downloaded materials had already been destroyed, rather than contradicting (c) and demanding that they should be destroyed immediately prior to the forensic examination of the plaintiff's devices, which would make no sense. The use of the past tense in (f) makes the meaning clear, as does the fact that the alternative interpretation (which the plaintiff adopted) would contradict (c) and the parties' duty to preserve relevant documents. This is the obvious meaning of the undertakings sought by the defendant and proffered by the plaintiff. It seems from the plaintiff's affidavit that he noted the apparent conflict between his interpretation of the undertakings but deleted the downloads without seeking clarification. He should not have done so.

55. One of the first pieces of advice every litigation solicitor must give their client when litigation is commenced or contemplated concerns their client's fundamental duty to preserve potentially relevant documentation. All legal advisors should remain alert to the issue and must remind the client of the responsibility at appropriate stages in the course of the proceedings, particularly when an issue such as the Incident arises. When the Incident emerged, the plaintiff and his legal advisors should have recognised as the outset that: (i) there was an issue as to whether documents had been inappropriately downloaded; (ii) they and their contents should not be further divulged or disseminated except as required to address the issue; (iii) the issues would require further consideration and to that end the evidence it should be preserved intact. Even leaving aside the Incident itself, the deliberate destruction of the downloaded documents in such circumstances would clearly be an egregious breach of the plaintiff's obligations to the court. In the circumstances, the evidence (whether on devices or in other electronic or had copy form) should have been preserved under seal for independent forensic examination if required. That was plainly the process envisaged by undertaking (c) to which the plaintiff unequivocally agreed. However, apparently without recourse to his lawyers for clarification and notwithstanding his appreciation of the apparent conflict, the plaintiff deleted the documents on the basis of his view that undertaking (f) required or permitted him to do so. In fact, when the 16 December letter is read as a whole, (f) was clearly directed to stop further dissemination and to confirm what had already been kept or destroyed rather than to authorising the further destruction of primary evidence. Even if the plaintiff regarded the letter as ambiguous, he should have consulted his solicitors before deleting any documents. They would have been bound to remind him of his duty to the Court to preserve relevant documents. If there was any perceived ambiguity in the 16 December letter (and, on reflection, I don't think that there was) then they would have had to revert to the defendant solicitors to agree the appropriate course. His solicitors would have counselled against the destruction of any data irrespective of the contents of the 16 December letter (on the basis of the obligation to the Court to preserve evidence) or they would have reverted to the defendant's solicitor to agree the correct approach.

56. However, the plaintiff's affidavit suggests that he thought he was acting appropriately when he destroyed the data. He also now says that in doing so he was aware that destroying the data without clearing the cache on his laptop would not prevent the forensic recovery of the data (although this might be a retrospective justification since it might equally be said that he would have been aware when he accessed the material in the first place that his actions could be forensically tracked). I cannot make a determination as to whether the plaintiff acted in subjective good faith in destroying the data without hearing oral evidence so, for the present, I  will assume that he did so, while noting that, objectively speaking, he should not have deleted the emails and that his decision to do so, as well as in downloading the data in the first place, may require further examination in due course. Accordingly, I make no conclusive finding in respect of the plaintiff's subjective explanation for destroying the documents. However, litigants and lawyers confronting any such situation in future should be mindful of the overriding obligation to preserve the forensic record - it is particularly important in the context of electronic records not to do anything which would prevent the retrieval of those documents or interfere with the authenticity of the records or their associated metadata. That should have been a primary focus of the plaintiff's solicitors on receipt of the 16 December 2025 letter. (Even well-intentioned access to such data by IT departments can muddy the forensic trail and should be avoided when litigation is contemplated). Accordingly, the plaintiff should not have deleted the downloaded material. His solicitors should have proactively insisted on immediate steps to; (i) prevent the plaintiff or anyone else wrongfully accessing or disseminating the material; (ii) preserve the evidence; and (iii) take a forensic copy should have been taken so that the defendant and the Court could determine exactly what was accessed. The deletions were not consistent with the obligation to preserve evidence and the plaintiff's solicitors should have secured the evidence. The material and/or devices should have been sealed for examination by independent forensic experts.

57. The plaintiff's actions both in relation to the Incident and the subsequent email deletion have inevitable cost consequences. His deletion of the downloaded data has complicated and increased the cost of establishing what was downloaded and its significance. I will assume for now that he acted in good faith. However, he must bear responsibility for the costs occasioned by his actions (to the extent that the defendant has been put to the considerable forensic expense of recovering deleted data). Furthermore, it is well settled law that where, as in this case, evidence is unavailable because of the wrongful actions of the party who should have preserved it, the Court may draw adverse inferences if necessary.

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Current Position

58. The plaintiff has still not sufficiently responded to the Incident. He has provided minimal detail from the outset as to what or how much he downloaded, referring only to "a significant number" of emails and the three email accounts, generally without joining issue with the defendant's forensic conclusions. As noted above, his correspondence effectively concedes that he downloaded at least 1100 emails. He has not denied downloading documentation such as those examples identified by the defendant's correspondence and affidavits which were manifestly private or privileged or which contained personal and sensitive data. As MD, the plaintiff ought to be aware of the legal obligations to which it is subject, including its employees' rights. He can scarcely have failed to appreciate the GDPR and privacy implications of his actions. His affidavit recognise that his actions were a huge error of judgment.

59. The defendant submitted that accessing other parties' confidential and privileged information to obtain a litigious advantage was an abuse of process and should be treated as such. However, it also confirmed that it was not seeking relief in the current application on a punitive basis but in response to an abuse of process which could prejudice the defendant or its right to a fair trial. Accordingly, for now at least, I am not considering whether orders should be made on a punitive basis. I am dealing with more immediate issues.

60. The plaintiff's submissions identified two factors which impeded his lawyers' ability to deal with points raised by the defendant's solicitors in respect of the incident. Firstly, they were concerned to avoid engaging with their client in respect of the detail of the documents accessed as they did not want to inadvertently receive information to which they were not entitled, particularly privileged information. This was a fair point, both because of the need to respect the rights of all parties entitled to claim privilege (and other relevant rights whether arising under GDPR, privacy law or pursuant to the plaintiff's fiduciary and contractual duties) and because even inadvertent access to such material could offside the legal team, requiring to recuse themselves from representing the plaintiff in the proceedings. The second concern was that the lawyers were concerned to avoid doing anything which could incriminate the plaintiff or prejudice his position in future civil or perhaps criminal proceedings. These were legitimate concerns which needed to be considered by the plaintiff and his lawyers. However, they were manageable and do not excuse the plaintiff and his lawyers from the responsibility to address the consequences of his actions.

61. As for the first point, the plaintiff's lawyers were right to avoid becoming apprised of the contents of documents to which neither they nor the plaintiff should have been privy, particularly private, confidential and, above all, legally privileged material. Their correspondence should have identified that obstacle in correspondence and proposed arrangements to progress matters while avoiding such pitfalls. They could have proposed carefully framed questions to their client to obtain greater detail as to how the access came about, how much data he accessed, why he thought he was entitled to take it and whether it seemed to contain legally privileged or confidential documents. Questions could have been couched in terms which would have avoided divulging the contents of privileged documents, particularly as the plaintiff's lawyers would have advised him not to speak about what was in the documents themselves. The way the defendant solicitors have addressed the issue both in correspondence and in affidavits shows how this could be done. For example, the solicitors could have referred to the documents referenced in the 16 December letter and asked their client to tell them - without disclosing what was in them - whether he accepted that he downloaded those particular documents. They could have agreed their approach with the defendant's legal team. They failed to do so.

62. Another solution may have been for the plaintiff to retain a separate legal team for the plaintiff to deal with the Incident. His lawyers should have advised him to take that step immediately, unless they were in a position to advise in respect of such issues and the practical steps which the plaintiff should take to resolve the issues arising from the Incident. As noted above, they needed to do so if they were inhibited in advising because of the need to avoid inadvertently learning the contents of the documents or for any other reason.

63. As for the second factor, I accept that, as their submissions suggested, the plaintiff's lawyers would have been concerned not to prejudice his position in future proceedings arising from the incident. This must have been a live concern for the plaintiff and his advisors, since the GDPR, privacy and other implications of the Incident could dwarf the stakes in the original proceedings, particularly since the Incident appears to have involved sensitive data and a breach of several parties' constitutional entitlement to privilege and privacy in respect of their communications with their lawyers. The plaintiff's lawyers were right to be concerned about potential exposures, and they presumably advised their client of the host of potential issues arising due to his actions. However, they could and should have employed suitably nuanced language, making clear that he accepted that the Incident should not have occurred while preserving his position. Sophisticated lawyers craft such correspondence, appreciating that they cannot make an admission which might, for example, increase their client's exposure or jeopardise insurance cover while needing to avoid defending the indefensible. Unfortunately, the plaintiff's solicitors' correspondence did not strike this balance.

64. Without prejudicing his position in these proceedings or in other contexts, it was incumbent upon the plaintiff to acknowledge that the Incident should not have taken place, to provide as much information as possible as to what happened and how much data was downloaded and propose and take proactive steps to address the issue. Instead, evolving positions were adopted on his behalf over the weeks that followed, explanations that do him no credit and undermine the credibility of subsequent explanations and he appears to have regarded it as the defendant's responsibility to remediate his actions, at its expense.

65. For completeness, I should deal with one other point in respect of representation. While the defendant's senior counsel very fairly made clear that he was not criticising the propriety of the plaintiff's lawyers' actions, he added that in their situation he would have declined to continue to act. I am obviously not privy to communications between the plaintiff and his lawyers but, based on what I have seen to date, I would not endorse a suggestion that his lawyers should be criticised for failing to withdraw in this case (nor, in fairness did the defendant's submissions make such an explicit suggestion). Of course, circumstances may arise in litigation in which solicitors, by virtue of their duties as officers of the Court, and barristers, by virtue of their own ethical duties, will have no obligation but to withdraw if ethical issues arise and are not satisfactorily addressed. An obvious example would be where the relationship of trust and confidence between lawyer and client were so irretrievably damaged that the lawyers could no longer represent the client. Another would be where the client was misleading the Court or otherwise abusing its process, including by failing to take appropriate steps to rectify an issue which has arisen, ensuring that the Court and the other litigants are not prejudiced by their client's wrongful actions. If it becomes impossible to reconcile the client's instructions or interests with ethical duties and their overriding to the Court, the barrister or solicitor must withdraw. However, while withdrawal may be tempting for the lawyer when a controversy arises, from the perspective of the court (or the client or perhaps even the other parties) it may not be constructive if the lawyer withdraws unnecessarily or prematurely.  Where the client acknowledges that an issue should not have arisen and is committed to putting it right, it may be better not the parties and from the Court's perspective, if the existing legal team helps the client to steady the ship. Changing the team may be unnecessary and unhelpful if the lawyers are confident that their client is fully committed to address the issue. Withdrawal is necessary if there is no such commitment or if it is not possible to reconcile the client's instructions or interests with the lawyer's overriding professional and ethical duties to the Court. Accordingly, it may be appropriate for the legal team remaining in place to help the client resolve and remediate such issues. However, the lawyer's professional duties can never be subordinated to the client's interests or instructions. In this case, it is not obvious to me that it would have been necessary for the lawyers to withdraw, but, as noted above, that issue may have arisen if, for example, he refused to take their advice as to appropriate steps in response to the Incident and also refused to take separate advice in respect of that issue.

Legal Advice

66. The plaintiff has not disclosed any legal advice which he received before or after the Incident. He was under no obligation to do so but it might have been a mitigant if he was acting in good faith in accordance with legal advice (even if such advice was wrong). Counsel for both parties confirmed at the 3 March hearing that they were clear as to the views which I took of both parties' previous conduct and as to the significance of my warning regarding cooperation, including the reference to the plaintiffs not abusing the access to information with which he would be provided on my direction. Both confirmed that my remonstrations were shared with their respective clients after the 10 December hearing. There is no suggestion that the plaintiff's lawyers knew of the Incident prior to receipt of the 16 December letter and the Court is entitled to assume that the plaintiff's lawyers immediately explained to him the inappropriateness of his actions and the need to comprehensively address the issue. In the absence of any suggestion that the plaintiff was badly advised, the Court is entitled to assume that he was advised that he should not have accessed information and that he should take appropriate remedial steps and that he should not destroy any documents.

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The Inherent Jurisdiction

67. As a preliminary point, I should note that the defendant submitted that accessing other parties' confidential and privileged information to obtain a litigious advantage was an abuse of process and should be treated as such. However, as noted above, it also confirmed that it was not seeking relief in the current application on a punitive basis but in response to an abuse of process which could prejudice the defendant or its right to a fair trial. Accordingly, for now at least, I am not considering whether orders should be made on a punitive basis. Nor am I finally determining whether, depending on how matters develop, once the full facts of the Incident (and the plaintiff's subsequent actions) have been examined, the jurisdiction for such a sanction may fall to be considered.  I am dealing with more immediate issues.

68. The defendant cited Kelly J's adoption in Miley v. Flood [2001] 2 IR 50 of the House of Lords' observation in Derby Magistrates Court [1996] 1 AC 487 that the principle running through the authorities was that clients must be able to consult their lawyers in confidence:

"The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.  Legal Professional Privilege is thus much more that an ordinary rule of evidence, limited in its application to the facts of a particular case.  It is the fundamental condition on which the administration of justice as a whole rests."

69. Other Irish, English and European authorities were cited to similar effect, including Duncan v. Governor of Portlaoise Prison [1998] 1 IR 433 and Niemitez v. Germany 1992 16 EHRR 97 , in which the European Court of Human Rights concluded that a warrant which permitted the search of a lawyer's office was, "not necessary in a democratic society". The plaintiff did not take issue with that uncontroversial proposition; however, his lawyers made no concession that legally privileged documents had been accessed. The position adopted in his submissions in respect of the legally privileged documents can best be described as agnostic –the plaintiff's counsel could not respond to the allegation because his legal team could not take instructions from their client about the documents which he had accessed and therefore could not say whether they were privileged or manifestly so. I comment at paras 49, 50 and 58 as to the inadequacy of this explanation for failing to engage with an extraordinarily serious allegation.

70. As matters stand, none of the letters from the plaintiff's solicitors have taken issue with the examples of privileged documents identified by the defendant's solicitors in correspondence, nor did the affidavits sworn by the plaintiff and his solicitor take issue with  averments in the affidavits sworn on the defendant's behalf in respect of the issue although it did enumerate certain specific points on which it took issue with the forensic analysis (while not taking issue with its overall thrust). There is no suggestion that the plaintiff failed to appreciate the significance of legal professional privilege (and any such suggestion would be odd given his position as an experienced businessman, director and as the defendant's managing director). The evidence as it stands establishes a strong prima facie case that the documents downloaded included documents which were not only legally privileged but manifestly so, implying that the plaintiff deliberately accessed and downloaded such material knowing that other parties were entitled to assert privilege over it. If that is indeed the position, then it calls for rather more of an explanation from the plaintiff.

The Inherent Jurisdiction

71. The most draconian relief sought by the defendant seeks to invoke the Court's inherent jurisdiction to dismiss the claim. The authorities cited in respect of the inherent jurisdiction, included O'Domhnaill v. Merrick [1984] IR 151 (O'Domhnaill) and Kirwan v. Connors [2025] IESC 21 (Kirwan) which confirm the Court's inherent jurisdiction to dismiss proceedings in the context of delay. O'Domhnaill is the classic example of the use of the jurisdiction to dismiss a claim commenced within the limitation period (extended because the plaintiff was a minor) not as a punitive sanction but because the lapse of time meant that it would be an abuse of process to allow the case to proceed - the defendant could not be expected to defend himself in the circumstances, thereby rendering a fair trial impossible. The Supreme Court decision in Toal v. Duignan (No.1) [1991] ILRM 135 was similar - actions against individual medical personnel and a hospital were struck out although the delays were not the plaintiff's fault. Primor and subsequent decisions developed the inherent jurisdiction to dismiss for delay and in Kirwan, while reaffirming the inherent jurisdiction [1], the Supreme Court restated the circumstances in which it would be appropriate to invoke it to dismiss proceedings for delay.

72. In para.13 of his judgment in Kirwan, O'Donnell CJ commented that he saw the jurisdiction identified in O'Domhnaill, and the abuse of process cases, "as part of a continuum, rather than existing in entirely separate compartments". While not disagreeing with that characterisation, at para. 8 of his judgment, Murray J added that

" different powers along that continuum have different functions, purposes and parameters. The power to dismiss proceedings as an abuse of process is directed to protecting the procedures of the court against wrongful manipulation".

73. As far as the general scope of the inherent jurisdiction is concerned, most of the judgments cited and relied upon Donnelly J's landmark article "Inherent Jurisdiction and Inherent Powers of Irish Courts" (2009) 2 Judicial Studies Institute Journal 122 ("Donnelly"). The article distinguished between inherent subject matter jurisdiction (to deal with issues such as wards of Court, prior to legislation) and inherent powers, observing that :

"Inherent powers have arisen to supplement original jurisdictions. Essentially procedural in nature, inherent powers enable courts [to] give full effect to the primary jurisdiction thereby permitting them to fulfil their function as courts of judicature. All courts in the judicial hierarchy – statutory and constitutional – possess inherent powers"

74. Hogan J considered the issue at paras 137 to 149 of his judgment in Kirwan, citing Donnelly in support of his comment at para. 140 that:

"It is unnecessary to define the scope of inherent jurisdiction, but it may be said that a court "invokes its inherent power in order to fulfil its constitutionally-ordained function as a court of law and to accomplish the administration of justice in a regular, orderly and effective manner...This is a jurisdiction which a court "possesses implicitly whether owing to the very nature of the judicial function or its constitutional role in the administration of justice" (GMcG v. DW (Joinder of Attorney General) [2000] 4 IR 1 at 26, per Murray J. ) or "from the nature of the court's judicial function or the court's constitutional role in the administration of justice" (Mavior v. Zerko Ltd. [2013] 3 IR 268 at 276, per Clarke J.)".

75. At para. 141 Hogan J noted that a century of Supreme Court jurisprudence revealed

"a broad miscellany of cases and heterogenous instances of where the inherent jurisdiction was invoked where necessary to fulfil the Court's constitutional task of administering justice".

76. Hogan J itemised numerous examples of the exercise of the inherent jurisdiction in various contexts including Barry v. Buckley [1981] IR 306 which confirmed that the inherent jurisdiction to strike out an action which was doomed to fail even the case otherwise did not come with the predecessor of O.19, r. 28. Hogan J concluded at para. 145 that:

"While all these examples are heterogeneous in nature, they may all nevertheless be said to indicate the existence of a general inherent jurisdiction where this is necessary to make the administration of justice effective or to conserve and protect it against possible abuse. This is relevant to the general question of whether there is an inherent jurisdiction to strike out for undue delay. As I have indicated elsewhere in this judgment, the jurisdiction to strike out on grounds of delay serves the courts' fundamental duty to preserve and conserve the administration of justice with which they have been vested by Article 34.1. Part of that duty is to protect the process of the courts from abuse. As O'Higgins C.J. observed in The State (Director of Public Prosecutions) v. Walsh [1981] IR 412 at 426 in the admittedly different context of contempt of court:

"...under the Constitution it is the solemn duty of judges to see that justice is administered in the Courts. Surely the imposition of this duty carries with it both the power and the corresponding duty to act in protection of justice, if its fair or effective administration is endangered or threatened. In my view, the judicial power of government...is sufficiently extensive to authorise the Courts to take any action that is necessary for the due administration of justice." (Emphasis supplied)"

77. Accordingly, to further adapt Hogan J's adaption at para. 146 of the words of O'Higgins CJ, the current application raises issues as to whether the plaintiff's actions, particularly the alleged attempt to access apparently confidential and legally privileged documents to secure a litigious advantage endanger the "fair or effective administration of justice." Hogan J recalled his observation in Donnellan v. Westport Textiles [2011] IEHC 11 that it is implicit in Article 34.1 of the Constitution that the courts have a duty to ensure that the administration of justice operates in an efficient and effective manner which means that

"they must be necessarily clothed with powers designed to make that jurisdiction effective and to protect the administration of justice against abuse".

78. Delay is not a factor in this case as in O'Domhnaill and Kirwan, nor is Barry v Buckley applicable. The defendant seeks to invoke the inherent jurisdiction to dismiss the proceedings as an abuse of process on the basis that the plaintiff accessed material which was manifestly legally privileged, violating the defendant's constitutional rights to confidential legal advice so as to obtain a litigious advantage. Accordingly, the issue does not concern the substance or merits of the claim itself, it is the plaintiff's actions in the course of the proceedings which are alleged to constitute the abuse.

79. Kirwan does not suggest ** that the Court's general inherent jurisdiction should be curtailed save to the extent it restated principles for its exercise in the context of delay applications. To the contrary, Kirwan and other authorities confirm that the courts enjoy an inherent jurisdiction to dismiss proceedings which would be an abuse of process, a jurisdiction which they have exercised and will exercise for various reasons and in various scenarios. For example, although Murray J differed as to whether O.122 "occupied the field" in dealing with dismissal for delay, he (along with the rest of the Court) recognised the appropriateness of exercising the inherent jurisdiction in circumstances not abrogated by specific legislation. Echoing Donnelly, he noted at para. 21 that the term "inherent jurisdiction" encompassed a procedural power, observing that:

"When used in this sense, inherent jurisdiction refers to the ability of a Court to take steps to control proceedings before it, to protect its processes against abuse and to obtain fairness of procedures pursuant to what are, in effect, implied powers.  All Courts - or at least all Courts of record - enjoy powers of this kind as a necessary adjunct to their functions in administering justice."

Murray J enumerated examples of the exercise of such powers, stressing at para. 44 that the existence of the inherent jurisdiction was not being questioned in Kirwan [2].

80. While differing from the majority on certain issues, Collins J had no doubt as to the inherent jurisdiction which he discussed at paras 34 to 45 of his judgment, noting at para. 34 his agreement with the majority on the source of the power to dismiss, adding that:

"The power to dismiss proceedings on grounds of delay/want of prosecution is an essential part of the procedural armoury of any court. Such a power is "but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice "

Application of the inherent jurisdiction on this application

81. The evidence as it stands does not establish that O'Domhnail applies. The defendant has not shown that its defence has actually been prejudiced by the plaintiff's accessing of the documents. I accept the plaintiff's submission that the privileged documents cannot be adduced in evidence. The plaintiff has agreed not to disseminate them or to communicate their contents even to his lawyers. I expect the plaintiff to implement appropriate arrangements to ensure that the defendant (and other parties) are not prejudiced in any way as a result of the plaintiff's actions. It is the plaintiff's responsibility to take the initiative in proposing and implementing appropriate arrangements, seeking the defendant's agreement and the Court's approval for such arrangements. While he has not yet risen to that challenge, if he succeeds in doing so then, unless specific prejudice can be shown, it is not evident to me that a fair trial would be impossible as a result of the downloading of the privileged documents. It would be different if, for example, cross examination notes had been undermined but I cannot conclude that that was the case on the basis of the limited information before me.

82. For completeness, I should note that the downloaded material included material apparently related to the proposed mediation. Such documents appear likely to have been protected both by legal professional privilege and by the privilege pertaining to mediation and without prejudice negotiations. It was highly improper for the plaintiff to seek access to such material; his doing so further doomed any chance of the mediation proceeding as scheduled. However, I agree with the plaintiff's submission that the evidence does not suggest that access to mediation documents would render a fair trial impossible. Accordingly, although the plaintiff's actions cannot be condoned, the defendant has not identified prejudice which suffered in this litigation (and it is not my function to assess the impact on other parties in this context). The issue might need to be reconsidered if more specific evidence of prejudice emerged, suggesting that a fair trial was no longer possible.

83. However, even ignoring the impact on the other individuals, and even if a fair trial remains possible, it might still be appropriate to dismiss the claim on the basis of the Incident and its aftermath, reflecting the fact that the plaintiff's actions appear, objectively speaking, to have been  a breach of trust and a violation of the defendant's (and others') rights. The defendant says that the plaintiff deliberately engaged in a wrongful attempt to obtain a litigation advantage in these proceedings and in the Collingwood Complaint by accessing legally privileged material and other documents, and that the Court can invoke its inherent power to fulfil its constitutionally ordained function and to accomplish the administration of justice in a regular, orderly and effective manner.  The duty of the Court to protect all parties from the abuse of the Court's procedures has been repeatedly emphasised by the courts in different contexts. For example, at para. 145 of the majority judgment in Kirwan, Hogan J explained the jurisdiction to dismiss for delay as serving:

"the  courts' fundamental  duty  to  preserve  and conserve the administration of justice with which they have been vested by Article 34.1. Part of that duty is to protect the process of the courts from abuse."

84. Likewise, in the Supreme Court's recent decision in M v M [2026] IESC 2, Dunne J noted that all Irish Courts

"have obligations  under  the Constitution in relation to fair trials and fair procedures when engaged in the administration of justice. That obligation must include the possibility of restricting access to court when the proceedings constitute an abuse of process".

85. In the light of these and other abuse of process authorities, I agree with the defendant's submission that - independently of the O'Domhnaill jurisdiction which arises when a fair trial is not possible - the inherent jurisdiction may be invoked to fulfil the Court's constitutional function and to accomplish the administration of justice in a regular, orderly and effective manner. As Hogan J. observed at para. 140 of his judgment in Kirwan (citing Donnelly), the Court possesses such a jurisdiction "owing to the very nature of the judicial function or its constitutional role in the administration of justice". I also agree that in principle the deliberate violation of the rights of a defendant (or of others) to obtain a litigation advantage may justify striking out an otherwise valid claim, even without proof of specific prejudice. O'Donnell CJ observed at para.30 that:

"At the level of principle, the thrust of Collins J.'s disagreement, is I think encapsulated at paragraph 13 of his judgment where he observes that the new test "means that the courts may dismiss claims which may yet be fairly tried". This encapsulates the objection in a forceful and pithy manner, bolstered as it is by quotations from judgments both in this jurisdiction and the neighbouring jurisdiction. But, as in so many areas, the legal answer is that it is more complicated than that. The jurisprudence cannot be reduced to a choice between a disciplinary or a fair trial approach. Unless a very broad interpretation is adopted of the concept of a claim being "fairly tried" the courts have (and Collins J. would in this case), dismiss claims without it being established that they are incapable of being fairly tried. On my analysis at least, it is apparent that the jurisprudence shows that culpable plaintiff inactivity is a significant part of the calculation, and that courts under this jurisdiction, focus correctly on what it ** is ** the ** plaintiff ** ought ** to ** have ** done ** and ** failed ** to ** do. ** Cases ** where ** claims ** are ** dismissed for want of prosecution can be understood as a determination that it ** is not fair to the defendant to require them to defend the claim because of the ** inaction of the plaintiff".

The Chief Justice expanded on this theme at paras 31 - 33.

86. It seems to me that the logic of this observation applies at least equally to the exercise of the inherent jurisdiction in other contexts, meaning that the dismissal of proceedings may be justified not only where the fair trial of proceedings is impossible but also where it is not fair to the defendant to require them to defend the claim because of the plaintiff's misconduct in the litigation, errors rather than omissions as in Kirwan. However, in the absence of prejudice it is difficult to see the exercise of such a jurisdiction as other than punitive. As the plaintiff's submissions observed and Woulfe J noted in the Supreme Court's decision in IBRC v Fingleton [2024] IESC 59, there is a strong presumption in civil proceedings in favour of a trial on the merits. The plaintiff is seeking to invoke its constitutional right to litigate his claim. However, as the Chief Justice noted in Kirwan, that right may in principle be overridden by the appropriate exercise of the inherent jurisdiction to dismiss - Kirwan confirms that the merits of the claim are generally irrelevant to the exercise of the inherent jurisdiction in such circumstances. I accept that the dismissal of the proceedings on the basis of the Incident or its aftermath may indeed prove to be justified for the reasons outlined by the defendant and noted above but I consider that more evidence should be available to the Court as to the Incident and its aftermath and its consequences. As I have noted, I do not agree with the stance taken by the plaintiff's solicitors that they were not advising the plaintiff in respect of the Incident (since it should have been obvious that he needed such advice, either from them or from another team). Nevertheless, in the circumstances and in the interests of fairness, in view of the gravity of the issue, the plaintiff should have a further opportunity to take advice, to adduce evidence and to make submissions before any final decision is taken in respect of such a draconian sanction.

87. For that reason, as noted above, a punitive jurisdiction may be premature. While not condoning the Incident or subsequent actions, I do not consider that it would be appropriate for me to reach the definitive findings at this stage which would be required to determine the appropriateness of applying the ultimate sanction for the Incident. However, that issue may need to be revisited once a fuller picture emerges of the plaintiff's actions and their consequences and of any mitigating or aggravating circumstances. The dismissal risk will increase unless the plaintiff engages constructively and with full transparency in addressing the issue, but even that may not be enough.

Orders/undertakings

88. The reliefs sought need to be considered both in terms of the plaintiff's original actions, his initial response to the emergence of the issue, subsequent correspondence and his response to this application. It is extremely regrettable that this issue ever arose, but it is even more concerning that the plaintiff has not yet taken all possible steps to deal with it professionally and appropriately. The positions adopted on his behalf reflect poorly as do untenable attempts to justify unjustifiable actions. He has failed to meet his responsibility to propose solutions for the problems which he created, failing to provide all information in his possession as to the detail of his actions. No apology was provided until this motion was issued; in correspondence his solicitors belatedly rolled back on and contradicted the meagre implicit concession offered in their initial response and also adopted risible positions.

89. I do not now make definitive conclusions. However, the plaintiff's "error of judgment" (as he puts it) prima facie raises grave issues in terms of his common law and statutory fiduciary duties, duties of confidence and his colleagues' rights to privacy and their GDPR rights, including in respect of sensitive data and even including personal and sensitive data belonging to family members. As matters stand, the only motivation for the plaintiff's actions which has been articulated is that suggested by the defendant - that he sought an unfair litigious advantage in the proceedings and in response to the Collingwood Complaint, breaching other parties' rights to obtain confidential legal advice and to privacy in respect of litigation work product. The prima facie position is that such actions appear to have been a gross abuse of process, prejudicial to the defendant and to his colleagues and arguably bordering on contempt. However, as noted, I am not exercising a punitive jurisdiction at this point. Since I am not determining at this stage whether the proceedings should be struck out, I will adjourn that part of the notice of motion with liberty to re-enter, following the provision of further affidavit evidence from and disclosure by the plaintiff and any further development in respect of the incident. It may be necessary to conduct an oral hearing before the appropriateness of such a relief can be resolved.

90. However, it is not necessary to defer the application to strike out the claim for equitable relief. The facts already established or conceded satisfy me I should make that direction. The equitable reliefs sought were listed in paragraphs 3-8 of the Statement of Claim  and essentially sought to restrain the defendant from removing the plaintiff as MD or imposing any disciplinary sanction, but also, inter alia to "reinstate" him as MD, reversing the defendant's changes to the previous reporting structure and prohibiting any further changes to the reporting structure (save in each case, accordance with fair procedures, his contractual entitlements etc).

91. The Judgement had already noted that injunctive relief could well be refused even if the plaintiff succeeded at trial. The plaintiff's subsequent actions have rendered it inconceivable that - even if the plaintiff succeeded in his primary claim - he would be granted the equitable reliefs listed above, because the defendant would be entitled (and, indeed, obliged) to have regard to the Incident and its aftermath in determining ongoing working arrangements. The fact that his "serious error of judgement" followed the events giving rise to the claim is irrelevant. He is not coming to the Court with clean hands; no court would disregard the Incident and require the defendant to restore previous working arrangements. An attempt to insist on such a reversal would be delusional even, if the plaintiff succeeded in showing at trial that his contract had been breached; the significance of his subsequent actions would dwarf that breach in determining the appropriate remedy.

92. Responsibility for that situation rests with the plaintiff. His failure to come to the Court with clean hands debars such equitable relief. While, as the defendant's submissions noted, the exhortations in my Judgement and from the 10 December hearing should have been ringing in his ears, he committed what he now acknowledges to have been a serious error of judgement, invading the rights of other parties to privacy and to confidential legal advice. He would not be granted the equitable reliefs sought in paragraphs 5 - 8 even if he substantiated his claim at trial. His remedy, if any, must lie in damages.

93. As far as the precautionary reliefs sought at paragraphs 3 and 4 of the Statement of Claim are concerned, it seemed unlikely in any event that orders would be made in such broad terms, particularly in the light of the plaintiff's actions. If the defendant was to unlawfully take the actions which such reliefs seek to enjoin then the plaintiff can still seek redress accordingly. However, there is no reality to such broad anticipatory relief being awarded in these proceedings in the light of the plaintiff's actions.

94. The matter was listed for mention on 14 April. Shortly before the listing, the parties furnished undertakings on behalf of the plaintiff, the terms of which were largely agreed and which largely addressed the reliefs sought in paragraph 1 of the Notice of Motion. In particular, the plaintiff undertook that he would: (i) not access any email account, emails or other information of employees involved in the pending disciplinary process; (ii) not access any director or employee emails or information (other than his own account and the account designated for information exchange); (iii) preserve and not delete any information on his company mobile phone if requested by the forensic analyst and surrender his phone for forensic examination; (iv) not contact any of the defendant's clients or customers unless requested or authorised by the Board; and (v) act in accordance with decisions and/or resolutions of the Board, not communicate with clients on sick leave, and to furnish a report to the Board of all of his communications with the defendant's clients since the last Board meeting on 11 December 2025. I approved the undertakings on the agreed basis in lieu of the orders sought save in respect of two points in respect of which I ruled against the plaintiff:

a. the plaintiff sought to qualify undertakings (iv) and (v) so as not to prevent his non-work-related communications with the firm's customers, particularly in circumstances in which they should contact him. While such a qualification might normally be appropriate, I agreed with the defendant's submission that in the circumstances of this case and given the potential for disagreement, it was inappropriate for the plaintiff to communicate with any of the defendant's customers pending the determination of the proceedings and that there should be a ** total embargo on such communications during that period, irrespective of the subject matter and irrespective of who initiated any such contact.

b. I also rejected the plaintiff's attempt to stipulate in respect of undertaking (iii) that he should be entitled to attend the forensic examination of his work phone. T he defendant's counsel had rightly highlighted the irony of the plaintiff's demand to be present when his phone was examined because it contained personal information, evidencing a concern for his own privacy which was not afforded to his colleagues or even one of their spouses (in respect of sensitive medical records). In the light of the plaintiff's failure to extend such respect to his own colleagues (or even their families) I did not consider that such a requirement was warranted on his behalf. I instead directed the immediate production of the phone to the defendant on the basis that either his solicitor or a forensic expert could extend the forensic examination on his behalf. I directed the defendant to give 24 hours' notice of any such examination of the phone to allow the plaintiff's representative to arrange to attend any such inspection if they wish.

95. I also confirmed my indication in the course of the recent hearing that I was discharging undertakings previously offered by the defendant in these proceedings. The undertakings had already been superseded due to the plaintiff's extended sick leave, but, as a result of his actions, the plaintiff has also disentitled himself from enjoying such equitable reliefs pending trial and his apparent disregard for the Court's instructions as to his conduct.

96. While most points sought in paragraphs 1 and 4 of the defendant's notice of motion are addressed by the undertakings, the plaintiff's affidavit confirms that he has not downloaded to any device (other than those submitted for analysis) or otherwise retained any data accessed by him on 13-14 December 2025. However, I will require the plaintiff to furnish a further affidavit providing all information which he can offer concerning, inter alia:

(a) why he downloaded the data

(b) the precise steps he took to download the data

(c) how much time he spent downloading the data

(d) how much time he spent reviewing the data during the downloading process and subsequently

(e) whether, when downloading the data, he appreciated that the contents might be private, legally privileged or that they might contain personal data or even sensitive personal data.

97. The affidavit must also set out his specific proposals to ensure that the defendant and the individuals concerned are not prejudiced by his actions, including his response to the defendant's proposals in this regard (as to the provision of his evidence by witness statement). Save to the extent that he specifically joins issue with the defendant's evidence and the result of its investigation (as in respect of two email accounts and the use of the disc drive), setting out his specific position (generalised denials or non-admissions will not suffice) the plaintiff will be taken to accept the defendant's evidence in that regard.

Costs of Forensic Examination

98. As far as costs are concerned, the parties debated whether the costs of the forensic analysis were necessitated by the original Incident or by the plaintiff's inadequate response to the defendant's enquiries. In fact, the plaintiff must bear the responsibility either way.  While I am not satisfied that I should dismiss the entire claim at this stage without permitting the plaintiff to address the issues which I have identified and to tender further mitigating evidence and submissions if so advised, the evidence as it stands is sufficient to confirm that he must bear the forensic costs incurred to date and also the wasted mediation costs. I am satisfied that, given the plaintiff's actions over the weekend of 13 - 14 December, a detailed forensic investigation was the inevitable consequence of the Incident. The need for such an investigation could only have been avoided if he had reacted with complete candour, unequivocally acknowledging precisely what had been downloaded (without deleting same) and whether it included confidential and private information, personal data including sensitive personal data and legally privileged material. He failed to do this. Furthermore, the costs incurred by the defendant necessarily investigating the plaintiff's actions were greatly reduced by his deletion of the data. Timely, candid and contrite approach engagement in such circumstances was essential to at least reduce the scope of a detailed forensic investigation (and its expense). Accordingly, the forensic costs incurred by the defendant are directly attributable to the plaintiff's actions. As at the issuing of the motion, €55,000 had been incurred in respect of the forensic expert alone. Such costs are ongoing. The plaintiff is responsible for these and other wasted costs, including as a result of the deferral of the mediation and the delay in the litigation (which was awaiting an imminent hearing until I directed otherwise in the light of the Incident). He cannot expect the defendant to fund the investigation of his actions in the course of the Incident. The defendant should not be out of pocket as a result of his actions. In due course responsibility for future costs will need to be considered and the Court will also need to determine whether costs should be assessed on the standard basis. I am not determining those issues at this stage; for now, I am simply ordering the plaintiff to make a payment on account of the forensic costs of investigating the issue. I will direct the plaintiff to pay the defendant €55,000 on account of forensic costs to date, such payment to made within 60 days, failing which his claim in these proceedings will be struck out (without prejudice to the defendant's entitlement to continue to progress the counterclaim both in the meantime and thereafter). That payment on account is without prejudice to either party's rights to seek adjudication of the forensic costs. If the ultimate cost involved is, as may very well be the case, substantially higher, then the plaintiff will be required to pay the difference in due course as such costs are incurred. If it is less, then the defendant will be required to give a refund. Furthermore, if significant additional forensic costs are necessarily incurred before the consequences of the Incident are resolved, then the defendant may seek further payments on account.

99. As noted above, I am specifically leaving open for further submissions the question as to whether the costs awarded to the defendant in consequence of the Incident should be assessed on a party and party basis or on the alternative bases provided for pursuant to the Legal Services Regulation Act 2015 (see Trafalgar Developments Ltd v Mazepin [2019] IEHC 13 at para 41). Submissions would be needed to determine that issue.

Costs of Interlocutory Injunction Application

100. As far as the costs of the previous injunction hearing were concerned, there was no dispute as to the legal principles which are set out in sections 168 & 169 of the Legal Services Regulation Act 2015 and O.99, r.2(3) RSC and the uncontroversial authorities such as Pembroke Equity Partners Ltd v Corrigan [2022] IECA 142 and Chubb European Group SE v The Health Insurance Authority [2020] IECA 183. In particular, rule 2(3) provides that I should make an appropriate award in respect of the costs of interlocutory applications save where it is not possible to justly adjudicate on liability for such costs. Authorities such as Haughey v Synott [2012] IEHC 403 , O'Dea v Dublin City Council [2011] IEHC 100 , Glaxo Group Ltd v Rowex Ltd [2015] IEHC 467 , Paddy Burke Ltd (in Liquidation) [2020] IEHC 199 and Yoplait Ireland Ltd v Nutricia Ireland Ltd [2025] IECA 163 confirm that in the context of interlocutory injunction applications it may not be possible to justly adjudicate the liability for such costs where a fuller picture of the issues pivotal to the application may emerge at trial, such as where the application turns on whether the threshold test has been established on the basis of prima facie evidence (which may be refuted at trial), rather than on balance of justice criteria and noted the Court's wide discretion as to such costs.

101. Applying such principles I am satisfied that I can and should justly adjudicate on the application costs. The defendant was substantially successful, with only limited undertakings required (initially suspended because the plaintiff was on extended sick leave but then discharged because they are inappropriate in the light of the Incident). The plaintiff established a fair question to be tried on some points and a strong question to be tried on another, but the application was essentially refused on balance of justice grounds. A different picture is unlikely to emerge at trial as to those issues. Nor is oral evidence or discovery required to fairly adjudicate them. I do not accept the submission that my rejection of the defendant's evidence and submissions on certain issues equate to an adverse finding akin to a plaintiff exaggerating a claim or that those points should affect my determination of the costs of the application - they were not pivotal to the application.

102. In the light of my conclusions on the interlocutory application on balance of justice grounds, the defendant already had a strong basis for seeking the costs of the application; its case became unanswerable as a result of the plaintiff's actions in the days after the 10 December hearing. In accordance with s169(1)(a), when exercising my discretion to award costs to a party which is entirely successful I may have regard to the particular nature and circumstances of the case and the parties' conduct of the proceedings including (a) conduct before and during the proceedings and (c) the manner in which the parties conducted all or any part of their cases. I am also entitled to have regard to such criteria when exercising my general discretion as to costs where parties have only been substantially successful.

103. The plaintiff characterised the incident as an HR issue rather than an issue in the proceedings. I disagree and consider that it falls within the ambit of (a) and (c). I am entitled to have regard to actions on the part of the plaintiff which ignored the exhortations in the Judgment and my remonstrations at the 10 December hearing and which, even leaving aside the plaintiff's fiduciary and contractual obligations, appear to have been a violation of the defendant's constitutional right to confidential legal advice and to the corresponding rights, and GDPR rights and privacy rights, of the plaintiff's colleagues, all potentially with a view to obtaining an inappropriate litigation advantage. In the circumstances I will award the interlocutory injunction costs to the defendant, on the basis that, in the absence of agreement between the parties, such costs should be adjudicated on a party and party basis. (The possible need to consider the application of a higher measure does not arise in respect of those costs).

104. For completeness, if I had determined that the plaintiff should be awarded his costs, I would have reduced any such award to reflect the prolixity of his affidavits and the extent to which they ventilated and rehashed peripheral issues. In the event, that issue does not arise.

105. The plaintiff's delay in delivering the Statement of Claim could also have been relevant to the award of costs but I have disregarded it on this occasion because that issue is dwarfed by the far more serious considerations enumerated above. However, such delays may be a relevant factor in costs applications in future proceedings for the reasons outlined in para. 40 of the Judgment. **** As authorities such as Kirwan and Tweedswood Ltd & Anor v Power [2025] IESC 18 note, recipients of interlocutory relief must progress claims with expedition. I noted at para. 61 of my recent judgment in Olive Green IMS Holdings v Carter & Anor [2026] IEHC 217, that this obligation extends to applicants for such relief and that such parties should progress proceedings and seek to close the pleading with expedition, rather than awaiting the expiration of the relevant period provided for them to take such steps. Delays in pleading the case may affect the exercise of the discretion to grant relief and may also go to the costs of the application; if a party is seeking the Court's urgent intervention to grant relief pending trial, it should be in a position to plead its case without delay.

Conclusion

106. Accordingly, in summary and in addition to the undertakings proffered by the plaintiff:

a. I am adjourning the application to dismiss the part of the notice of motion which seeks the dismissal of the plaintiff's claim in its entirety, with leave to re-enter.

b. I am striking out the equitable reliefs sought in paras (3) to (8) of the Statement of Claim and paragraphs (3) - (9) of the plenary summons.

c. I am directing the plaintiff to file an affidavit in the terms set out in para. 96 above.

d. I am directing the plaintiff to pay the defendant the wasted mediation costs and the costs of the interlocutory injunction to be assessed on a party and party basis in default of agreement.

e. I am directing the plaintiff to pay the defendant the costs of the forensic investigation to date and of the current application, without prejudice to the defendant's entitlement to seek any further legal costs arising as a result of the incident and I am inviting further submissions as to the basis on which such costs should be assessed.

f. I am directing the plaintiff to make a payment to the defendant in the sum of €55,000 on account of the forensic costs on the basis outlined in para. 98 above, on the basis that the claim (but not the counterclaim) will be struck out unless that payment is made within 60 days.

g. I am staying further steps to progress the claim (but not the counterclaim) until the issues arising from the Incident have been addressed to the Court's satisfaction.

h. I am discharging the undertakings previously tendered by the defendant in these proceedings.

i. I will relist these proceedings for mention in due course to review the extent to which the issues identified in this judgment have been resolved, at which point the next steps to progress the proceedings can be determined.

Representation

Cathy Smith SC and Barry O'Mahony, instructed by Richard Black Solicitors, for the plaintiff.

Benedict Ó Floinn SC and Tom Power, instructed by Ormonde Solicitors, for the defendant.

[1] There was a divergence of opinion within the Supreme Court as to whether Order 122 supplanted the inherent jurisdiction as far as dismissal for delay was concerned (other than in O'Domhnaill circumstances). Kirwan thus explored whether the Court retained the inherent jurisdiction to dismiss for delay or whether, as O'Donnell CJ put it, Order 122 "occupied the field", effectively codifying the position as to dismissal for delay. The majority concluded that Order 122 did not occupy the field; the inherent jurisdiction to dismiss for delay remained. (For the avoidance of doubt, there is no suggestion in this case that the "field was occupied" in respect of the current circumstances as the result of the Oireachtas having legislated for the particular scenario in the Mavior v. Zerko [2013] IESC 15, [2013] 3 IR 268 sense). The majority having determined that the inherent jurisdiction remained, the Supreme Court unanimously endorsed more specific guidance as to how that jurisdiction should be exercised in delay cases, departing from the Primor approach.

[2] The issue in Kirwan was whether the jurisdiction to dismiss for want of prosecution was regulated by the Rules to the exclusion of the inherent jurisdiction.

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URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC241.html