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Cite as: [2001] IEHC 122, [2001] 3 IR 462

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M. (M.F.) v. W. (P.) [2001] IEHC 122 (22nd June, 2001)

THE HIGH COURT

1997 No. 2758P

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PROCEEDS OF CRIME ACT, 1996

BETWEEN

M. F. M.

PLAINTIFF/APPLICANT

AND

P.W.

DEFENDANT/RESPONDENT

JUDGMENT of Finnegan J. delivered on the 22nd day of June, 2001 .

1. This matter came of for hearing before Mr. Justice Moriarty of the 23rd June, 1997 but the hearing thereof was not completed. Because of his Tribunal commitments great delay would be experienced if the completion of the matter should be delayed until he is available. In these circumstances the Plaintiff wishes to have the hearing recommenced before another judge.

2. The Plaintiff obtained an Order for Discovery from Mr. Justice O’Sullivan on the 9th March, 2001 in the following terms:-

“It is ordered that the Plaintiff do make discovery on oath within two weeks from the date hereof of any notes in his possession or power taken by Solicitor or Counsel of the evidence under the proceedings herein heard by Mr. Justice Moriarty on the 23rd day of June, 1997 - the Affidavit on behalf of the Plaintiff to be sworn by Francis Cassidy.”

3. Pursuant to that order Francis Cassidy swore an Affidavit of Discovery on the 3rd April, 2001. The relevant notes are listed in the Schedule Part II thereof in the following terms:-

“Attendance Notes of proceedings and evidence tendered before Mr. Justice Moriarty in the above entitled proceedings on the 23rd June, 1997.”

4. The Plaintiff claims that the notes are covered by legal professional privilege. The Affidavit of Discovery contains in paragraphs 4, 5 and 6 thereof the following averments relevant to the issue of privilege:-

“4. The document constitutes my hand written attendance of the 23rd June, 1997. As such it contains references to personal attendances, Court Orders, evidence, personal notes etc.. I do not have the skill of a stenographer and this document does not purport to be, nor was it ever intended to be, a transcript of evidence taken before the Court. I am satisfied that while it does record much of the evidence taken it also misses much of it. Furthermore, many of the sentences are incomplete and, at this remove, I find it difficult to interpret.

5. It was prepared by me not simply in contemplation of legal proceedings, but in the course of these legal proceedings, so that I could draw to the attention both of my Counsel and my client certain elements of the evidence for discussion, advice and highlighting. The document includes comments, marks and notes specially for the purpose of drawing the attention of certain points both to Counsel and my clients. It was prepared specifically with my function as Solicitor to the Plaintiff in mind and to assist me in its execution.

6. The Plaintiff claims privilege over the documents as it is of material prepared by the said Solicitor for the purpose of giving legal advice in the course of these proceedings. The Plaintiff asserts that the notes in the Schedule hereto are covered by legal professional privilege.”

5. The sole issue before me is whether the Plaintiff is entitled to claim legal professional privilege in respect of the documents discovered in the Schedule Part II to the Affidavit of Discovery.

6. While no authority other than Smurfit Paribas Bank Limited -v- A.A.B. Export Finance Limited (1990) 1 IR 469 has been cited to me, there is a considerable number of reported decisions relevant to the issue here. There are however no decisions directly in point although there are obiter statements which are. Many of the reported decisions relate to the discovery without privilege of a transcript of a shorthand writers note, taken in proceedings in open Court on behalf of a party to those proceedings, in later proceedings to which that party is also a party.

In Nordon -v- Defries (1882) 8 QBD 508 the facts were as follows. The Plaintiff had a shorthand note taken of proceedings in an action Nordon -v- Nordon with a view to it’s use in subsequent proceedings in that action but also for the purposes of the action Nordon -v- Defries . Mathew J. at p. 150 said:-

“It is probable in this case that the notes of the evidence were taken as well with a view to ulterior proceedings in the case of Nordon -v- Nordon as for the purpose of this action. If so the notes would seem to have been clearly privileged in that suit, and it is difficult to see why their being privileged in one suit should destroy the privilege in another arising out of the same subject matter. It seems unreasonable that a privilege in each should become a privilege in neither”.

7. That decision has been criticised by Bray on discovery at p. 398 and in the majority judgments of Cozens Hardy M.R. and Buckley L.J. in Lambert -v- Home (1914) 3 KB 86. That case arose out of a road traffic accident. In two earlier actions arising out of the same accident which were heard together the Defendant had a shorthand note taken for the purposes of an appeal in that action and also for the purposes of defending the claim of Lambert which was anticipated. The transcript of the note was held not to be privileged in the action by Lambert against the Defendant. Cozens Hardy M.R. at p. 90 says:-

“It is admitted that the transcript relates to the matters in question in this action, but it is contended that the document is privileged - that is in substance a part of the Defendant’s brief, as a statement of what some, or possibly all, of the witnesses who were present at the collision have sworn, and that it is not fair to require the Defendant to produce that which has been brought into existence under the instructions and at the cost of the Defendant in anticipation of the present litigation. Now the proceedings in the County Court were public. Anyone present could listen and take a note of what the witnesses said. The transcript did not involve any such “professional knowledge, research and skill” as Bowen L.J. referred to in Lyell -v- Kennedy . There is no original composition in the document. It is a mere transcript of that which was publici juris. A Defendant who has obtained at his own cost a copy of a document, not in his possession, which is not itself privileged, cannot decline to produce the copy, although he obtained it in anticipation of future litigation. So here a mere reproduction in a physical form of material which was publici juris cannot, I think, be privileged.”

8. More relevant to the facts of this application are the observations albeit obiter of Buckley L.J. at p. 93 in relation to Nordon -v- Defries :-

“The shorthand notes had been taken in an action of Nordon -v- Nordon . Discovery of them was asked for the purpose of using them in an action of Nordon -v- Defries . Mathew J. says that in that action of Nordon -v- Nordon the shorthand notes would seem to have been clearly privileged. In my judgment they would not have been privileged at all. If there had been subsequent proceedings in Nordon -v- Nordon , as upon an inquiry as to damages or a reference before the Master or any subsequent step, the notes taken at the trial of Nordon -v- Nordon would not have been privileged.”

9. Thus the shorthand notes would not enjoy privilege even within the action in which they were taken.

10. The dissenting judgment of Channell J. while it appeals to common sense has not been adopted in any subsequent case. He puts the Defendant’s case as follows at p. 92:-

“That which was said by the witness in the box is, I agree, relevant, and it was public property in the sense that it might have been heard and might have been recorded by any one; but words are evanescent, other people did not record them, and I did, and I did so solely for my use and protection in the present litigation which I then anticipated. I brought it into existence as a document the document of which inspection is asked, and I brought it into existence through my solicitor for the express purpose of instructing my solicitor and counsel both as to advising me whether I should defend the present claim and to enable them to conduct my defence for me if I did defend. It is part of my brief and I claim privilege for it. The record is not public property, though the words which it records may have been.”

11. He goes on to say:-

“Here the document is a full transcript of all the evidence. If it had been a note taken by counsel instructed to watch the previous proceedings, with a view to taking a note of the part of the evidence which in his judgment would be material in the present proceedings, would not that be privileged? And is there any difference? Here the solicitor is said to have in fact underlined the material passages. If this document is to be considered as the proof of the shorthand writer it is I think clearly privileged.”

12. Finally he deals briefly with the fact of the underlining of part of the transcript at p. 96.

“Further, in this case the document which the Defendant has is stated to have been so underscored as to direct attention to the passages which the Defendant’s solicitor considers material. That part of it certainly is privileged, and so the order made amounts to an order to make a new copy for the Plaintiff’s benefit, and I do not think such an order ought to be made. These difficulties, however would not arise if the document is privileged, and my view is the transcript should be held privileged as a document which has only come into existence for the purposes of this litigation.”

13. Insofar as there is a note which is an admixture being in part a note of proceedings and/or evidence and in part notes made by a solicitor for the purpose of the litigation the practice of the Courts has been to allow production with the latter parts covered up: this was done in relation to notes taken by a solicitor of proceedings in chambers in a prior action in Ainsworth -v- Wilding (1900) 2 Ch 315. Sterling J. having looked at the attendances in issue permitted portions being statements of what transpired in chambers to be inspected the remainder to be covered up.

14. There is, it seems, no distinction to be drawn between a shorthand note and a note taken by a parties solicitor. In Re: Worswick, Robson -v- Worswick (1888) 33 Ch.D. 370 North J. at p. 372 - 373 says:-

“In the case of Nicholl -v- Jones , Vice-Chancellor Wood ordered that the indorsement of counsel should be produced, as well as the transcript of shorthand notes in this respect. Then we have a recent case before Mr. Justice Kay, Rawstone -v- Preston Corporation , which I believe is the last case on the subject. The point there was precisely the same as here. I do not stop to read his decision, but it was that a transcript of notes was not privileged, and must be produced: that is in accordance with my own view, and upon those two cases I think I ought to act.”

15. Later in the judgment he says:-

“It has been put in argument that supposing the shorthand notes had been taken by the solicitor’s clerk - or the solicitor himself - they would have been privileged. I do not admit that would be so. A mere verbatim report of the evidence, whether by the solicitor’s clerk, the solicitor, or counsel, would not in my opinion be privileged.”

16. Thus insofar as transcripts or solicitor’s notes of proceedings and evidence are concerned the position as to privilege is clear, they are not privileged in a subsequent action. In relation to their being privileged in the action in which they are taken there are obiter statements to contrary effect in Nordon -v- Defries and Lambert -v- Home . The statement of Buckley L.J. in the latter seems to me to be more in accord with principle - insofar as the solicitor’s notes are of evidence and proceedings they are a record of what was publici juris and so not entitled to privilege in the action in which they are taken. The obiter comments of North J. in Re: Worswick to the like effect are also persuasive in this regard. While I find the common sense approach of Mathew J. in Nordon -v- Defries and of the dissent of Channell J. in Lambert -v- Home appealing I feel constrained following a review of the authorities to accept as correct the views of Buckley L.J. in the former and of North J. in Re : Worswick . Accordingly the solicitors note of the evidence and proceedings is not privileged. Insofar as it contains other material designed to assist the Plaintiff in the prosecution of the action it is privileged. I propose to examine the note to determine the extent to which it should be covered up prior to the inspection by the Notice Party.

17. I do not consider it likely that in the course of an action which unlike the present ran without interruption the Court would lightly exercise it’s discretion and order discovery such as this during the course of the action. It might be appropriate to do so in special circumstances, or in ulterior proceedings in the same action depending on the particular circumstances or where as here the action having been part heard requires to be reheard.