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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mac A'Bhaird -v- The Commissioner of Public Works in Ireland [2015] IEHC 129 (06 February 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H129.html
Cite as: [2015] IEHC 129
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Judgment
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Neutral Citation: [2015] IEHC 129 THE HIGH COURT [2013 No. 1182 P] BETWEEN DOMHNALL Mac A’BHAIRD PLAINTIFF AND
THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND DEFENDANTS Judgment of Mr. Justice David Keane delivered on the 6th February 2015 Introduction The proceedings 3. A plenary summons issued on the 5th February 2013. A memorandum of appearance was entered on behalf of the defendants on the 13th February 2013. A statement of claim was delivered on the 30th April 2013. After particulars were raised and replies received, a defence and counterclaim was delivered on the 18th November 2013, following which a reply to defence and counterclaim was delivered on the 18th November 2013. Discovery 5. In that affidavit, the defendants claim privilege over a number of documents set forth in the Second Part of the First Schedule to that affidavit. The grounds advanced in support of that assertion of privilege in the body of Mr Gleeson’s affidavit are:
The present application 8. Unusually, the issuing of the motion does not appear to have been preceded by the service of a notice to produce the disputed documents. However, no point was taken in that regard on behalf of the defendants and, accordingly, nothing turns on that fact. 9. The list of documents scheduled to the plaintiff’s motion corresponds with the following extract from the list of documents, set out in tabular form, in the second part of the first schedule to the defendant’s affidavit of discovery:
The arguments 11. No authority was cited on behalf of either party in respect of these arguments. Rather, the Court was invited to exercise its jurisdiction under Order 31, r. 20(2) of the Rules of the Superior Courts, and did so. O. 31, r. 20(2) provides:
12. Having inspected the documents at issue, I am satisfied that they are capable of attracting both litigation privilege and legal advice privilege and that, accordingly, the defendants’ claim of legal professional privilege has been made out. 13. First, it seems to me quite clear, having regard to the express words of Mr Gleeson’s affidavit already quoted, that privilege is being claimed “on grounds of legal professional privilege and/or litigation privilege.” I do not find any ambiguity in the nature or extent of the privilege being asserted. 14. In Smurfit Paribas Bank Ltd v. AAB Export Finance Ltd [1990] 1 I.R. 469, the Supreme Court made clear that where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client. 15. In that case, Finlay C.J. considered the historical expansion of legal professional privilege from one solely covering litigation to one covering both litigation and the provision of legal advice. Having done so, he concluded that, for that expansion to be justified, it would be necessary for any legal advice privilege claimed to be closely and proximately linked to the conduct of litigation and the function of administering justice in the courts. He then continued (at p. 478 of the report):
17. Second, I do not think that the conceptual distinction that the plaintiff seeks to draw - between legal advice, on the one hand, and a client’s instructions, on the other - is a helpful one for the purpose of the decision I have been asked to make, bearing in mind the rationale behind legal professional privilege. 18. The relevant distinction is not one between instructions sought or provided, on the one hand, and legal advice sought or provided on the other; it is one between communications made for the purpose of seeking or obtaining legal advice, on the one hand, and communications made merely for the purpose of seeking or providing legal assistance, on the other. 19. In Smurfit Paribas, Finlay C.J. identified “the desirability of the correct and efficient trial of actions” as being the superior interest of the common good that justifies the immunity of communications from discovery in so far as they are made for the purpose of litigation. Finlay C.J. found support for that proposition in the following statement of Jessel M.R. in Anderson v. Bank of British Columbia (1876) 2 Ch D 644 (at p. 649):
21. Third, I do not accept that, by including in the description of certain of the documents over which privilege is claimed the words “instructing the CSSO to proceed with the purchase”, the defendants have waived the claim of legal professional privilege that they are otherwise entitled to assert over those documents. While it does seem to me that the inclusion of those words in the description of the relevant documents in the affidavit of discovery was unnecessary and might, on one view, be seen to amount to the disclosure of the very instructions over which privilege is being asserted, on inspection of the documents at issue it is evident that the instructions concerned range wider than that description suggests. 22. I would make the same observation in respect of the plaintiff’s additional reliance, in asserting that waiver of privilege has occurred, on the further statement made on behalf of the defendants in the inter partes correspondence preceding the present application that: “[w]hilst it is not our intention to divulge any of the material in these emails you may note that the option of seeking rescission of the contract was in discussion in the very first of the emails referenced.” Again, while it might be suggested that this assertion was unnecessary and could be seen to amount to the disclosure of the broad nature of certain legal advice in respect of which privilege was being asserted, it does not seem to me to amount to a waiver of that privilege. 23. I reach that conclusion for two reasons. First, in Fyffes plc v. DCC plc [2005] 1 IR 59 (at p. 68), Fennelly J. cited with approval the following dictum of Ebsworth J. in Kershaw v. Whelan [1996] 1 W.L.R. 358 (at p. 370): “Waiver is not lightly to be inferred; although privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.” 24. Second, it seems to me that the limited disclosure constituted by the statements quoted above, does not go anything like so far as that which was at issue before the Supreme Court in Hannigan v. DPP [2001] 1 IR 378, being much closer to that which was found not to amount to waiver by a divisional sitting of the High Court in Ahern v Mahon [2008] 4 IR 704 (at 729). In other words, neither the inclusion of a reference to an instruction to complete the sale at issue in the description of certain documents over which privilege was being asserted, nor the reference to a discussion in other documents of the issue of the potential rescission of that sale contract, in the context in which those references were made, amounts to the deployment of that material in the present litigation. That is not to say that the defendants would not have done better to avoid making those references in the context of the privilege that they assert. Neither is it to say, if the defendants were to make any attempt to adduce evidence of any such reference at trial, that the conscious and deliberate use of such selected portion of the contents of a privileged document in that way would not at once give rise to an issue of waiver then. 25. Finally, and for the sake of completeness, I should add that I reject the assertion made on behalf of the plaintiff that litigation could not have been in contemplation at any time between the 2nd and 4th January 2014 because the parties were endeavouring to complete the transaction during that period. I do not accept that the former proposition follows from the latter. It is perfectly possible for any party seeking to conclude a transaction where a completion notice has issued to give consideration to the potential for litigation in the event that completion does not occur and to seek appropriate legal advice concerning his or her position in that eventuality. 26. For the reasons I have set out, the plaintiff’s application is refused. |