24.Abuse of Process/Improper Purpose

being used as a stick to beat the DPC at the hearing. FBI did none of those things. It does not

even appear to have pursued the issue in further correspondence.

419. Having carefully considered the position, I am satisfied that there was no breach by

the DPC of its duty of candour in the defence of these proceedings. I do, however, believe

that, acting within the spirit of what the Supreme Court stated in GRA (No. 2), all but one of

the questions raised in the MHC letter of 29th October, 2020 should have been answered by

the DPC. Its failure to so do, however, did not amount to a breach of the duty of candour. It

was open to FBI to take further steps arising from the failure of the DPC to answer the

question. Those further steps were not taken. Had the questions been answered and the

information been provided, it may well have avoided the need for further affidavits to be

exchanged after the hearing.

420. It follows that I am not satisfied that there was any breach of a duty of candour and

that the failure to provide the information requested does not feed into or contribute in any

way to the allegations of pre-judgment or premature judgment or any of the other grounds of

challenge advanced by FBI. Nor is it necessary for me to draw any inferences from the failure

to provide the information in response to the questions raised as the further affidavits

exchanged between the parties after the hearing did yield that further information and I have

set out my findings and conclusions arising from that information earlier in this judgment. I

will hear further submissions from counsel as to what, if any consequences should follow

from the findings and conclusions reached in this section of my judgment.

24. Abuse of Process/Improper Purpose

421. In its statement of opposition, the DPC pleaded that FBI’s proceedings were an abuse

of process and were issued for an improper purpose (para. 19). The DPC provided particulars

of that plea and referred to comments made by Mr. Clegg, Vice President for Global Affairs

for Facebook Inc., at a European Business Summit debate/webinar on 22nd September, 2020

and in a statement published on Facebook’s website on 9th September, 2020. It was pleaded

(at para. 19(6)) that it appeared that FBI had brought the proceedings “for the purpose of

preventing any decision being taken regarding its EU-US data transfers until such time as the

European Commission and the US” had negotiated a replacement for the Privacy Shield

Decision which had been invalidated by the CJEU in its judgment Schrems II. The facts

underlying that serious allegation were verified by Ms. Dixon in her affidavit of 23rd October,

2020. She exhibited the documents on which the DPC relied in making the allegation.

422. FBI responded to the allegation in Ms. Cunnane’s second affidavit of 11th November,

2020. She made clear that FBI was rejecting, as unfounded, the allegation of abuse of process

and improper purpose. She disputed the contention that Mr. Clegg had indicated that the

application was aimed at “buying time” and asserted that at all times FBI had and has an

“entirely proper purpose” in bringing the proceedings, namely, to secure “the vindication of

its rights to fair and proper procedures and ensuring that it is not subjected to an unlawful

inquiry” (para. 77). Ms. Cunnane then set out a number of matters on which FBI relied to

dispute the allegation of abuse of process and improper purpose. She noted, for example, that

a number of the concerns raised by FBI in the proceedings were shared by Mr. Schrems who

had brought his own proceedings. She also asserted that FBI’s conduct in the proceedings was inconsistent with the allegation made and pointed out that FBI consented to the entry of

the proceedings in the Commercial List and agreed to an accelerated timetable for the

proceedings.

423. As the allegation of abuse of process and improper purpose remained in issue between

the parties until the hearing, the written submissions exchanged between FBI and the DPC

each dealt with the allegation and set out the parties’ respective positions on the issue and referred to the legal principles and cases on which they would be relying.

424. Mr. Schrems did not make any submissions on this issue and, as already noted,

brought his own proceedings which have since been compromised on terms already

mentioned.

425. As the DPC maintained the allegation up to the hearing, it had to be addressed by

FBI’s counsel in his opening submissions. It was not until the end of the third day of the hearing that the DPC, through its counsel, informed FBI and the Court that the allegation of

abuse of process and improper purpose was not being “pressed” and that the DPC was not

relying on Mr. Clegg’s comments in support of any defence based on abuse of process or

improper purpose. The allegation was, therefore, abandoned at that point and it was

unnecessary for FBI to deal with it any further in its reply. It was, however, submitted by the

DPC that the court could take a “more jaundiced view of the arguments” made by FBI in light of the comments of Mr. Clegg which were relied on by the DPC. I have already addressed the

arguments made by FBI on their merits and have not considered it appropriate to take a

“jaundiced view” of those arguments by reference to the comments made by Mr. Clegg on

the Facebook website or at the webinar referred to.

426. In light of the effective withdrawal of the DPC of the allegation of abuse of process

and improper purpose by FBI in bringing the proceedings, it is not necessary for me to deal in

any detail with the substance of the allegation. However, it is necessary for me to say

something more about this.

427. The allegation that the proceedings were an abuse of process or brought for an

improper purpose was a serious allegation to make. It was squarely made in the DPC’s statement of opposition and had to be dealt with by FBI in a replying affidavit, in its written

submissions and in oral submissions made in opening the case at the hearing. It was only at

the end of the third day of the hearing that FBI and the Court were informed that the

allegation was not being maintained.

428. I should make clear that, in my view, there is and was no basis for the allegation that

the proceedings amounted to an abuse of process or that they were brought for an improper

purpose. The relevant legal principles applicable to determining whether there is an abuse of

process, or whether proceedings have been brought for an improper purpose, are summarised

in Biehler, McGrath and Egan McGrath “Delany and McGrath on Civil Procedure” (4th Ed.)

(paras. 16-43–16-58, pp. 692-696). The principles derived from the leading cases such as

Grant v. Roche Products (Ireland) Ltd [2008] 4 IR 679 and Sean Quinn Group Ltd v. An

Bord Pleanála [2001] 1 IR 505 were very helpfully summarised by Barrett J. in Dunnes

Stores v. An Bord Pleanála [2015] IEHC 716 (“Dunnes Stores”) at paras. 64 to 80. I agree

with the judge’s summary of those principles. Applying them here, even if there were a

collateral purpose for FBI’s proceedings (and I do not have to so decide), I am perfectly satisfied that there was a proper purpose for bringing the proceedings, in that the proceedings

were brought with a view to enforcing and vindicating what FBI believed were its rights and

restraining what FBI believed were the unlawful actions of the DPC. I have found against

FBI on all of the substantive grounds of challenge advanced by it. However, I am quite

satisfied that the proceedings were brought for a proper purpose. FBI raised weighty and

difficult legal issues on which very extensive written and oral submissions were exchanged

by the parties. FBI undoubtedly raised arguable grounds of challenge and that was recognised

by the High Court (Meenan J.) in giving leave to FBI to bring the proceedings. Some of the

grounds relied on by FBI were supported by Mr. Schrems who brought his own proceedings,

making some of the same arguments (as well as a number of other arguments). I have no

doubt that even if FBI had a collateral purpose in bringing the proceedings (and I am not so

deciding), it had a proper purpose and objective in bringing the proceedings. Moreover, it

cooperated in the expeditious and efficient conduct of the proceedings by consenting to the

entry of the proceedings in the Commercial List, to an expedited timetable for the exchange