High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Irish Haemophilia Society Ltd. v. Lindsay & Anor [2001] IEHC 240 (16 May 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/240.html
Cite as: [2001] IEHC 240

[New search] [Printable RTF version] [Help]

THE HIGH COURT

JUDICIAL REVIEW

No 307JR/2001

BETWEEN

THE IRISH HAEMOPHILIA SOCIETY LIMITED

APPLICANT

AND

HER HONOUR JUDGE ALISON LINDSAY

SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CIRCUMSTANCES OF

INFECTION OF PEOPLE WITH HAEMOPHILIA WITH HIV AND HEPATITIS C

RESPONDENT

AND

THE BLOOD TRANSFUSION SERVICE BOARD (NOW KNOWN AS THE IRISH BLOOD TRANSFUSION SERVICE)

NOTICE PARTY

JUDGMENT of Mr Justice Kelly delivered the 16th day of May, 2001.

On Friday last the applicant sought leave to begin judicial review proceedings against the respondent. It did so in respect of a ruling given by the respondent on the 9th May, 2001. That ruling was to the effect that a claim of legal professional privilege made by the notice party in respect of some 611 documents set forth in a schedule to an affidavit of Dr. Emer Lawlor sworn on the 15th March, 2001 had been properly made. Having so held the respondent declined to carry out an inspection of those documents. The respondent furthermore refused to allow counsel for the applicant to cross-examine Dr Lawlor on her affidavit.

Having heard the application on Friday last I formed the view that I ought not to decide the matter exparte. I therefore required the applicant to put both the respondent and notice party on notice of the application. That was done and on Monday afternoon last I heard the application inter partes. The application was opposed by both the respondent and the notice party.

Even though the application was heard inter partes it was agreed that the onus of proof to be achieved by the applicant was that set forth in the judgment of Finlay C.J. in G. -v-Director of Public Prosecutions [1994] 11.R. 374.

The relevant extract from the judgment of the Chief Justice is set out at pages 377 - 378 and reads as follows:

"It is,I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks..."

I therefore proceed to apply that test although there may well be grounds for believing that a higher test is appropriate on an application of this sort when it is made inter paries. (See the observations of Glidewell L.J. in Mass Energy Limited v Birmingham City Council [1994] Env. L.R. 298; Keene J. in R v Cotswold District Council, ex varte Barrineton Parish Council (\997), 75 P. & C.R. 515 and my own observations in Gorman and Others v Minister for the Environment and Local Government and Others (Unreported, High Court, Kelly J., 7th December, 2000).

The respondent was set up under the Tribunals of Inquiry (Evidence) Act, 1921 as amended to inquire into matters of serious public concern about the contamination of blood products for administration to haemophiliacs or persons with other blood clotting disorders. It has embarked on this work and has sat for well in excess of 120 days to date.

On the 27th November, 1999 the respondent made an order against the notice party directing it to make discovery of documents. In purported compliance with that order the notice party produced an affidavit sworn by Dr Emer Lawlor on the 8th October, 1999. That affidavit purported to make a claim of legal professional privilege in respect of documents described in the second part of the first schedule to it.

At the end of January, 2001 the applicant sought further and better discovery. This application was the subject of a ruling by the respondent on the 1st February, 2001. In the course of that ruling the respondent held that the way in which the notice party's claim to legal professional privilege was dealt with in its affidavit did not comply with the directions of the Supreme Court in Bula Ltd. v Crowley [199011.L.R.M. 756. That view of the respondent was undoubtedly correct. The supplemental affidavit was directed to be sworn in accordance with directions which were given by the respondent as follows:

"I would now like to turn to the second point which is the procedural one, and the manner in which documents over which legal privilege is set out. The case which governs this is Bula v Crowlev 1990 Irish Reports. In that decision it is quite clearly set out, the directions as to how documents over which legal privilege is to be claimed must be categorised and enumerated. Of the affidavits of discovery before me, which in my view comply with the directions as set out in the Bula case, these are (sic.) the following:

... TheBTSB... The categorisation of documents claiming legal privilege is sufficient in each case, but I now direct they enumerate the relevant documents over which they are claiming privilege.

The supplemental section of the affidavit should list all the relevant privileged documents which a party had in its power or possession at the date of the swearing of the original affidavit of discovery and those dates can be gleaned from the schedule attached to this ruling. I direct that the said supplemental affidavit should be furnished to the tribunal within six weeks of today's date".

That direction resulted in a supplemental affidavit being sworn by Dr. Lawlor. Insofar as it is relevant it reads:

"4. I object to produce the said documents referred to in the second part of the first schedule hereto on the ground that the said documents were at all times confidential and subject to legal professional privilege ("LPP") because they were brought into being for the dominant purpose of giving/receiving or recording professional legal advice for the purpose of obtaining evidence for actual or contemplated legal proceedings or tribunals of inquiry."

The second part of the first schedule contains an individual description of each of the 611 documents over which the claim to legal professional privilege is made. The vast bulk of the documents are letters exchanged between solicitors and client; solicitors and counsel; or solicitors and/or client to experts or witnesses.

The applicant was dissatisfied with this affidavit and so a further hearing took place to deal with that matter on the 8th May, 2001. The transcript of that hearing was opened to me in full. It is not necessary to repeat its contents for the purpose of this ruling. Suffice it to say that the claim to legal professional privilege was challenged on a number of bases. It is common case that no evidence was adduced by the applicant in support of the challenge which it sought to make. Extensive legal arguments were, however, made.

The respondent gave its decision the next day. Insofar as it is relevant it reads as follows:

"/ made a ruling on 1st of February, 2001, in which I criticised enumeration of documents of the BTSB in their affidavit of discovery in the area of professional legal privilege. Having said that I didn't think it was sufficiently enumerated, I did say it was sufficiently categorised. In my view, the affidavit as supplied by Dr. Lawlor does make up for the lack of the original one and it does properly enumerate the documents over which legal professional privilege is claimed. The issue today is as to whether the enumeration is sufficient to allow the Irish Haemophilia Society to assert that the claim for legal professional privilege over a document or documents is not correct.

I have before me a sworn statement by Dr Lawlor, and in paragraph four she states

'I object to produce the said documents referred to in the Second Part of the First Schedule hereto on the grounds the said documents were at all times confidential and subject to legal professional privilege (LPP) because they were brought into being for the dominant purpose of giving, receiving or recording professional legal advice or for the purposes of obtaining evidence for actual or contemplated legal proceedings or tribunals of inquiry'

Dr Lawlor then lists a large number of documents over which she claims, on behalf of the BTSB, legal privilege.

I am satisfied that this was a careful exercise by her and that she was aided by legal advice in that selection in so doing. And that she selected documents coming within her understanding of what is, and is, legal advice.

If I were to refute that, I would need evidence, and cogent evidence, to the effect that such legal privilege was wrongly asserted. Instead, what I have received is that cogent argument put forward by Mr Giblin that such enumeration doesn't allow me to distinguish between what is legal advice and legal assistance, but he has not put forward to me aprimafacie case today that a document or documents are not ones which should have legally - - should have legal privilege attributed to them. I am directed by the judgement of Mr Justice Kelly in the Duncan v Portlaoise case in which he said that if one was to challenge such an assertion of legal privilege that, (1) it would be a very rare case; and (2) that cogent evidence would have to be adduced on behalf of the person challenging that such legal privilege was wrongfully asserted.

I appreciate that today's case could be the rare case in which it could be challenged, but I dispute that cogent evidence has been adduced before me to substantiate that any document or documents over which the claim of legal privilege has been asserted by Dr. Lawlor is, in fact, incorrectly asserted. Furthermore, I accept that the affidavit is a sworn document and, in so accepting, I think it is unfair of Mr Giblin to ascribe to it the phrase 'a bland assertion'. This is a sworn - - these are sworn averments and, as such, are very important.

Indeed, if there was such cogent evidence before me and if there was a doubt in my mind with regard to the assertion of legal privilege over certain documents, that same was wrongfully asserted, I would have no hesitation in calling for a further affidavit or, indeed, to inspect the documents myself. But I am not satisfied

With regard to the specific allegations mentioned in the letter of the 27th of March, I think it is a matter of evidence that there was substantial discovery made already by the BTSB; and also, secondly, I think there was a matter of evidence that the matters as claimed in the sense of the individual claims by persons with haemophilia against the State was taken over by the Chief State Solicitor.

And specifically in regard to the specific documents mentioned by Mr Giblin, namely 3, 10 and 26, lam satisfied that these are documents over which legal professional privilege exists. I am satisfied that they are not entitled to know the contents. I think there would be very little point in giving the protection of legal professional privilege if one had to state the nature of the advice one was seeking or giving, and that, in my view, would defeat the very purpose for which the legal right was given in the first instance.

And finally, on the point of whether the identity of the experts should be given in the affidavit, lam satisfied that a party is not entitled to know the identity of that expert.

Therefore, in conclusion, I am of the view that the BTSB has complied with my direction and, in so doing, have prepared and sworn an affidavit which, in my view, covers the stipulations that I have outlined.

Further, if the allegation was to be made in relation to a document or documents that the legal privilege as claimed over that document or documents was wrongfully asserted, there must be, in my view, cogent evidence adduced and a prima facie case made that same was wrongly asserted. There must be a doubt and I haven't got that doubt."

As to the refusal to permit cross-examination on the affidavit of discovery the respondent had this to say:

"Mr Hayden, I have carefully considered both what Mr. Giblin said yesterday and I also carefully considered all of the case law, and I looked at the original affidavit and then the supplemental affidavit. And I came to the view that I was satisfied that there was sufficient categorisation and sufficient enumeration, and, in the circumstances, I do not see any reason to go behind that, and I didn't see any reason to go behind it in relation to the application yesterday, and I don't see any reason to go behind it in relation to your application to cross-examine today".

These are the rulings which are sought to be impugned by the applicant. Three grounds were advanced in support of this application. They can be summarised as follows:

1. It is said that the respondent was wrong in law and misdirected itself in holding that the affidavit in the form in which it was presented was correct and sufficient to establish the legal professional privilege claimed. Rather it is said that the respondent ought to have held that the documents should have been individually described in a more detailed form.

2. The respondent, it is said, reversed the onus of proof on the challenge to the claim of legal professional privilege.

3. It is claimed that the respondent was wrong in law and misdirected itself in refusing to carry out an inspection of the documents set forth in the affidavit or to allow cross-examination of Dr. Lawlor in respect of the affidavit.

THE FIRST GROUND

Legal professional privilege is a fundamental condition on which the administration of justice as a whole rests. The issue was considered in some depth in my judgment in Miley v Flood [2001] 11.L.R.M. 489. The existence of legal professional privilege is not in dispute here. Care must be taken to ensure that the privilege is not abused on the one hand and on the other that the requirements for its assertion are not such as to in effect dilute or destroy it.

The Supreme Court has in recent times twice addressed how the claim to privilege should be made. In Bula Ltd. v Tara Mines Ltd. (No. 4) [1991] 11.R. 217 Walsh J. said at p. 218 of the report:

"The format suggested by the plaintiffs in his claim herein appears to me to be in effect what the Rules of Court require. Unless documents are identified and properly indicated no particular claim of privilege should be made about anything. One must know what the claim of privilege is. The Court directs that 0.31, r. 13 of the Rules of Court should be followed in the format envisaged by the rules and set out in Appendix e, form 10. So far as lam concerned the format indicated or sought in the motion today by the plaintiff is in effect what the Rules require. Therefore, the schedule of documents should follow that format".

In Bula Ltd. v Crowlev [1990] I.L.R.M. 756 Finlay C.J. having quoted the above passage from the judgment of Walsh J. said at p. 758 of the report:

"A consideration of the motion in that case and the appeal from the order of the High Court clearly indicate that what was required by this judgment and what the plaintiff" was seeking in that case was an individual listing of the documents with the general classification of privilege claimed in respect of each document indicated in such fashion by enumeration as would convey to a reader of the affidavit the general nature of the document concerned in each individual case together with the broad heading of privilege being claimed for it. Such a requirement, irrespective of what may have been a habitual form of affidavit of discovery in the past, seems necessary to comply with the principles laid down by this court in the recent case of Smurfit Paribas Bank Limited vAAB Export Finance Ltd. [1990] ILRM 588".

As is clear, that was the precise judgment relied on by the respondent in its ruling directing the filing of the supplemental affidavit in this case. I have carefully considered that affidavit and it appears to me to comply precisely with the directions of the Supreme Court.

I cannot see that the applicant has demonstrated an arguable case to the effect that the respondent was wrong in so concluding. There is in my view no necessity to describe the documents in greater detail than has been done here. To do so would run the risk of diluting or perhaps even destroying the privilege which is being asserted. I therefore refuse leave on this ground.

THE SECOND GROUND

The assertion is that the respondent reversed the onus of proof in respect of the challenge to the legal professional privilege claimed. This is because the respondent held that the onus was on the applicant to adduce evidence which would question the validity of the legal professional privilege claimed.

In my view there is no basis to suggest that the tribunal was in any respect incorrect in its approach.

As is clear from my judgment in Miley v Flood [2001] 11.L.R.M. 489 following the Smurfit Paribas case the obligation and onus is on a party asserting legal professional privilege to prove that such a claim is justified. That was done in the instant case in Dr. Lawlor's affidavit. The onus then moved to the challenger. If the applicant wished to challenge the claim to privilege it had, in this case, to do so by evidence. It adduced none.

In my view there is no arguable case shown which supports the view that the respondent reversed the onus of proof. On the contrary, it identified and applied the correct principles.

THIRD GROUND

In this case the respondent was, in my view correctly, satisfied as to the claim to legal professional privilege as set forth in the supplemental affidavit. In fact, the respondent had no doubt on the topic.

What justification could there be for either an examination of the documents by the respondent or cross-examination of Dr Lawlor in such circumstances? The answer is none.

In the case of Duncan v The Governor of Portlaoise Prison [1997] 11.R. 558 I addressed both of these topics. On the question of cross-examination on an affidavit of discovery I said at page 574:

"It appears to me that there are circumstances in which it may be permissible to cross-examine on an affidavit of discovery. However, lam satisfied that such circumstances are extremely rare. This is so because of the variety of other remedies which are available with a view to testing matter contained in an affidavit of discovery. These other remedies include orders for further and better discovery, the delivery of interrogatories and the inspection by the court itself of documents referred to in an affidavit of discovery. Furthermore, it appears to me to be wholly undesirable that the court should, save in the most exceptional cases, be called upon to deal with questions such as the existence or non-existence of a document in circumstances where such a question might impinge to a serious extent on the issues in the action. Clearly at the stage when an issue of discovery of this type is being argued, the court cannot be fully au fait with all the issues in the proceedings. I do not in this judgment wish to specify the rare circumstances in which cross-examination on an affidavit of discovery may be permitted. But it does appear to me that when permitted at all, it should only arise in circumstances where it is both necessary and where other remedies, such as those already mentioned, prove inadequate".

On the question of inspection of the documents by the court or a tribunal I said at page 576:

"There may well be a case (although I hope a rare one) where cogent evidence might be adduced to suggest that a claim to legal professional privilege is being wrongfully asserted. In such a case I do not exclude an ability on the part of the court to direct production of the documents in question. Such an exercise would be with a view to ascertaining whether or not the documents were truly privileged. That is not the proposition which was advanced in this case".

The circumstances here could not possibly justify either course being resorted to. No arguable case has been made out under this heading either.

CONCLUSION

The burden of proof on an applicant seeking leave to commence judicial review proceedings is a light one but it must nonetheless be discharged. In my view the applicant has not discharged that burden in respect of any of the arguments put forward in this case.

Leave will be refused. The application is dismissed.