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Cite as: [2013] NIFET 65_12FET, [2013] NIFET 00065_12FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 65/12 FET

1057/12

CLAIMANT: Brenda Fraser

RESPONDENT: ILEX URC Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the Tribunal is that:-

(1) The documents contained in the agreed schedule of disputed documents are the subject of legal professional privilege.

(2) It is ordered that the said documents, by reason of the said privilege, are not admissible as evidence by the claimant in the above-entitled proceedings and the claimant cannot therefore rely upon the said documents or her knowledge of the contents of the said documents in the above-entitled proceedings.

(3) A further Case Management Discussion will be arranged for the Tribunal to give relevant case-management directions/orders, in light of the above decision, to enable the substantive hearing to proceed.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.

The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

Reasons

1.1 The claimant presented claims to the Tribunal on 11 June 2012, in which she made a claim of discrimination on grounds of religious belief/political opinion, age, sex, disability and unfair dismissal. The respondent presented a response to the Tribunal on 16 August 2012, in which it denied liability for the said claims made by the claimant.

1.2 On 20 September 2012, the Vice President gave a direction, pursuant to Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998 (‘the 1998 Order’) that:-

“The matters which would otherwise fall to an industrial tribunal for consideration shall instead be heard and determined by the Fair Employment Tribunal; and the claims, insofar as the Fair Employment Tribunal deem appropriate, shall be heard and considered together.”

1.3 In accordance with its normal practice, the Tribunal arranged a Discrimination Case Management Discussion, which was held on 24 October 2012. As set out in the Record of Proceedings of that hearing, dated 30 October 2012, the respondent’s representative made an application for a pre-hearing review to consider preliminary issues relating to the use by the claimant, in connection with these proceedings, of certain documents which had come into the possession of the claimant and which the respondent maintained were the subject of legal professional privilege and which privilege had not been waived by the respondent. It was recognised by the representatives of both parties, at the Case Management Discussion, that the ability of the claimant to be able to rely upon the contents of these documents, or any of them, potentially, could be very relevant to the subject-matter of the claimant’s various claims and the legal and factual issues, in relation thereto. It was therefore agreed, given the implications for the parties for any decision made by the Tribunal in relation to these matters, and/or for the preparation by the parties for any substantive hearing and/or any case-management directions to be given by the Tribunal for the substantive hearing that any hearing to determine these preliminary issues should be made at a pre-hearing review, in advance of any substantive hearing. In doing so, I also take into account not only the terms of the overriding objective but also Rule 16(2) of the Fair Employment Tribunal Rules of Procedure, contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (‘Rules of Procedure’), which states:-

“Any determination of a person’s civil rights or obligations shall not be dealt with in a Case Management Discussion … .”

(See further the decision of the Employment Appeal Tribunal in the case of Jonathan Bailey Associates (UK) Ltd v Shapland [2003] UKEAT/0957.)

In making the direction for a pre-hearing review to determine the said issues, I also emphasised to the parties and their representatives that, having determined the preliminary issues, the subject-matter of the pre-hearing review, I would not be the Chairman of any Tribunal at the substantive hearing, since, in order to determine the preliminary issues, I would probably be required to inspect the disputed documents contained in the agreed schedule and/or be aware of their nature in some detail during the course of the pre-hearing review. (See Independent Research Services v Catterall [1995] ICR 1, Knox J at Page 5C and Weatherup J In Re: McLaughlin [2005] NIQB 50.)

1.4 In light of the foregoing, a pre-hearing review was therefore arranged to consider and determine the following issues:-

“(1) Whether the claimant should be entitled to rely upon documents contained in the agreed schedule of documents (and her knowledge of same) in respect of which the respondent asserts legal privilege, which has not been waived and which the respondent alleges came into the claimant’s knowledge and possession in an unauthorised manner.

(2) Whether reference to the said legally privileged documents (if so found by the Tribunal) should be exorcised from the claim form (specifically at Paragraphs 10 – 13, 21 – 22, 52) and prohibited from inclusion in any witness statement, or otherwise from the evidence in this matter.

(3) Whether the Fair Employment Tribunal has power to address the issues at (1) or (2) or any part thereof or whether these issues or part thereof have to be the subject of proceedings in the High Court of Justice in Northern Ireland.”

1.5 It is necessary to note, at the time of the Case Management Discussion on 24 October 2012, as set out in the Record of Proceedings dated 30 October 2012, the claimant’s then representative, Ms J Smith, Human Resources Consultant, was of the opinion that any issue arising in relation to the issue of the use by the claimant of these documents in these proceedings could be determined, in her opinion, by the Tribunal, pursuant to the Tribunal’s Rules of Procedure; whereas the respondent’s representative was of the opinion that the Tribunal’s case-management powers, under the Tribunal’s Rules of Procedure, would not be appropriate to prevent their use by the claimant in these proceedings and, if the documents were the subject of legal privilege, which had not been waived by the respondent, injunctive proceedings would be required to be brought by the respondent to prevent the claimant’s reliance on the said documents in these proceedings. Indeed, in this context, he referred to the decision of Mr Justice Morgan, as he then was, in the case of Department of Health & Social Services & Personal Safety v Stacey [2004] NICH 6, to which further reference shall be made elsewhere in this decision. However, by the time of this pre-hearing review, the claimant’s present legal representatives, by way of contrast, were of the opinion that, if the said documents, or any of them, were the subject of legal professional privilege, which had not been waived by the respondent, the Tribunal’s Rules of Procedure did not allow the Tribunal to make case-management directions/orders to prevent the claimant from relying on them in the course of the proceedings and, in particular, the substantive hearing. Similarly, by way of contrast, to their previous position, the respondent’s representatives were, by the date of the pre-hearing review, of the opinion that the Tribunal’s Rules of Procedure did allow the Tribunal to make relevant case-management directions/orders to prevent the claimant relying on them in the course of these proceedings; and injunctive proceedings would only be required to be brought by the respondent, if the Tribunal determined it was unable to make relevant case-management directions/orders. Subject to the foregoing, the respondent’s representative made it clear that the respondent was not making any application, whether in the High Court or this Tribunal, at the time of this pre-hearing review, for any such injunctive relief, including any application for the delivery of the said documents to the respondent. Indeed, it was not disputed by both representatives that the Tribunal does not have power to grant any such injunctive relief, which can only be granted by the High Court. It will be necessary to further consider these matters elsewhere in this decision.

1.6 At the commencement of the pre-hearing review, application was made by the respondent’s representative that the hearing of this matter be held in private. Having heard submissions by the representatives of both parties and after having regard to the terms of the overriding objective, Article 6 of the European Convention on Human Rights, including the risk of prejudice for a fair trial of the contents of the documents were revealed in the course of this hearing the Tribunal’s Rules of Procedure, together with the nature of the said documents to be considered and/or the issues to be determined by the Tribunal at the pre-hearing review, I made an Order, without objection by the claimant’s representative, pursuant to Rule 15 of the Rules of Procedure that the hearing of this pre-hearing review would be conducted in private. I gave reasons orally at the pre-hearing review for the making of the said Order.

1.7 The representatives of the parties prepared, for the purposes of this hearing, an agreed schedule of the disputed documents, for which the respondent was asserting legal professional privilege. I was also provided, by consent, with copies of the documents, the subject-matter of the said schedule in order to assist me to determine the said preliminary issues. It was not disputed, during this hearing, that the claimant had obtained the documents, which were contained in the said schedule, when she received them anonymously in the post. Further, it was not disputed that the respondent had not authorised, either expressly or impliedly, that the said documents should be sent to the claimant and, if the documents were the subject of legal professional privilege, the respondent, had not, at any time, expressly or impliedly waived the said privilege.

1.8 For the purpose of this pre-hearing review, I heard oral evidence from Dr A McGinley, the Chief Executive of the respondent at the material time, and who was in that position until 31 October 2012 and Mr Mel Higgins, the Director of Corporate Affairs of the respondent at the material time with responsibility for Human Resources, in the respondent and who, since in or about November 2012, is the acting Chief Executive of the respondent. In addition to the documents, the subject-matter of the agreed schedule, I was referred to the ‘pleadings’ to date, in this matter, together with other relevant correspondence between the parties, all of which were contained in the agreed ‘trial’ bundle, prepared for this pre-hearing review. I am indebted to the representatives of both parties for their helpful and well-presented oral submissions, which they made at the conclusion of the hearing. Save for the purposes of determining the preliminary issues, the subject-matter of this pre-hearing review, and for the avoidance of any doubt, I have come to no determination of the claimant’s claims, which will require to be considered and determined by a Tribunal at a substantive hearing. At the conclusion of the pre-hearing review, I reserved my decision. On 23 January 2013, following the conclusion of this hearing, the Supreme Court issued its decision in the case of R (on the application of Prudential PLc and Another) v Special Commissioner of Income Tax and Another [2013] UKSC I). Although the facts in the Prudential case were very different to the facts in the present case, the decision concerned the scope of legal advice privilege which, as set out later in this decision, was one of the issues required to be considered by me in determining the said preliminary issues, the subject-matter of this pre-hearing review. In the circumstances, I therefore gave the representatives of the parties, if they wished to do so, the opportunity to make further written submissions arising from the Prudential decision. Both representatives, after noting the terms of the decision, declined to give any further detailed written submissions; and, in the circumstances, it was not necessary to have any further oral hearing.

1.9 It will be necessary to arrange a further Case Management Discussion for the Tribunal to give relevant case-management directions/orders, in light of the Tribunal’s decision in this pre-hearing review, to enable the substantive hearing to proceed.

2.1 The disputed documents contained in the agreed schedule, as amended, were as follows:-

(1) E-mail dated 13 June 2011 – Percy Johnston to Mel Higgins

(2) E-mail dated 6 July 2011 – Percy Johnston to Gail Downey, Mel Higgins and Deirdre King

(3) E-mail dated 20 July 2011 – Percy Johnston to Gail Downey

(4) E-mail to G Downey to P Johnston dated 20 July 2011 with attached draft appraisal

(5) E-mail dated 15 August 2011 – D King to P Johnston

(6) E-mail dated 13 October 2011 – ending D King to A McGinley and P Johnston to D King

(7) E-mail dated 2 December 2011 – Percy Johnston to Deirdre King

(8) E-mail dated 16 December 2011 – Percy Johnston to Aideen McGinley, Deirdre King

2.2 Save insofar as relevant and necessary for the determination of the issues in the pre-hearing review, I have not set out, in the course of this decision, the detailed contents of the said chain of e-mails contained in the said schedule.

2.3 Having heard oral evidence from Dr McGinley and Mr Higgins and considered the contents of the documents in the agreed schedule I made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary for the determination of the issues, the subject-matter of this pre-hearing review.

2.4 The documents in the agreed schedule were a chain of various e-mails relating to the request for and subsequent provision of legal advice on issues relating to, in essence, the terms of employment of various employees of the respondent, including the claimant, by the respondent and/or the nature of the type of contracts under which they were employed and/or the risks and implications, if any, where any such contracts were terminated by the respondent and/or the circumstances in which any such termination might take place. The legal advice was provided to various persons, as set out in the schedule by Mr Percy Johnston, a senior solicitor in The Departmental Solicitor’s Office (‘DSO’), which office routinely provided legal advice on employment/human resource and other matters to the respondent. The respondent is a company limited by guarantee, which is provided by the Department for Social Development and the Office of the First Minister and Deputy First Minister. The main focus of the dispute between the parties related not to whether legal advice, was so provided; but whether the said advice provided was privileged and, if so, the nature of any such privilege – which will be considered in greater detail elsewhere in this decision.

2.5 The legal advice was initially sought in or about June 2011 by Mr Higgins, as Director of Corporate Affairs, with responsibility for Human Resource matters, at the request of the Chief Executive, Dr McGinley; but from on or about 20 July 2012 any such advice was requested by Dr McGinley and Mr Higgins had no other direct involvement in the obtaining of any such advice.

2.6 Ms Gail Downey, at the material time, was an Executive Assistant to the Chief Executive who was also responsible, inter alia, for taking/preparing minutes of meetings of the Board of the respondent and who had day-to-day responsibility for Human Resource matters. For the purposes of these matters, the subject-matter of the said e-mails, she reported directly to the Chief Executive, at her request, for reasons of sensitivity and confidentiality. I am satisfied, in relation to her involvement in the said e-mails, in relation to the obtaining and provision of the legal advice, this resulted from her said role carried out by her at the request and with the specific authority of the Chief Executive, who wished to obtain the legal advice on behalf of the respondent. She was, at all material times, an employee of the respondent.

2.7 Ms Downey was not a Human Resources specialist, and the Chief Executive considered the services of such an ‘in-house’ specialist was required in the circumstances.

Ms Deirdre King was an independent consultant with particular expertise in Human Resources matters. Following a recruitment exercise carried out by the respondent, for the provision, for a short period, of Human Resource services, Ms King was retained by the respondent, under a staff substitution policy. This policy was agreed with the relevant Government Departments, whereby the respondent was allowed to engage agency staff to cover a short term need, such as Human Resources, where the respondent had no ‘in-house expertise/function’. In a classic tripartite type agreement the respondent paid the successful agency for Ms King’s services to the respondent, in accordance with the terms of the agreement between the agency and the respondent; and the agency paid Ms King her remuneration for the said services to the respondent in accordance with the agreement between Ms King and the agency. Ms King was engaged under the said tripartite agreement from in or about June 2011 to March 2012 to give Human Resource advice and expertise to the respondent. In relation to her involvement in the obtaining of the said legal advice from The Departmental Solicitor’s Office, the subject-matter of the said chain of e-mails, she was at all times working directly to and at the request of the Chief Executive and with her specific authority. Although she was an agency member of staff under the said tripartite agreement, she carried out her said duties for and on behalf of the respondent, in the same way as if they had been carried out by any other employee of the respondent.

2.8 When the legal advice was initially sought in or about June 2011 it was not disputed the legal advice sought and obtained was in the nature of general legal advice. In or about July 2011 more specific advice was sought in the context of the possibility [Tribunal’s emphasis], at that time, of litigation in the future by the claimant in relation to her employment with the respondent, arising out of performance issues that had been identified in a recent review. There was no doubt Dr McGinley the Chief Executive, as part of her responsibilities, at all times was required to manage potential risks to the company, including litigation, and in such circumstances she properly sought advice to reduce any such risk in the subsequent months from 20 July 2011 to 13 October 2011 before the respondent commenced any action involving the future employment of any employee with the respondent including the claimant. At all times, she had particular concerns about the possibility the claimant might bring proceedings if any action was taken against her in relation to her employment with the respondent, she had a background as a solicitor, although not practising, and the nature of previous grievances brought by her.

2.9 In the undisputed chronology of this matter, the claimant was dismissed on 19 March 2012 and commence Tribunal proceedings on 11 June 2012. It was not seriously disputed by the parties that from 19 March 2012 it was recognised by the respondent that proceedings were probable, and indeed probably earlier from the notification of disciplinary proceedings to the claimant by the respondent on or about 27 January 2012. The claimant, and another employee, gave a presentation about their position in the respondent to, amongst others, the then Chairman of the Board of the respondent. At the time the claimant was not given any feedback about the result of the presentation; but I am satisfied she would have been aware, from that time, by the fact and the nature of the presentation itself, that her position with the respondent was under some scrutiny with the potential for further action, including disciplinary action by the respondent.

2.10 In the immediate period following the presentation by the claimant which was not considered to have been satisfactory, particular legal advice was sought from and given by Percy Johnston of DSO to Deirdre King and Deirdre King/Aideen McGinley as appears from the e-mails dated 2 December 2011 and 15 December 2011. This advice related, in essence, to the various types/heads of litigation which could and might be brought by the claimant against the respondent, together with the result of any such litigation brought by her in circumstances were following the presentation, a vote of ‘no confidence’ in the claimant was to be taken at a meeting of a Sub-Committee of the Board, which was subsequently passed at its meeting on 15 December 2011, subject to formal ratification by the full Board at its January 2012 meeting.

2.11 At the Board meeting on 19 January 2012, as had been expected civil which had been intimated in the said advices, the said vote of ‘no confidence’ in the claimant was formally ratified by the Board of the respondent. The claimant was so informed and, on 27 January 2012, disciplinary proceedings were commenced against her, resulting in her said dismissal and, subsequently, the presentation of these proceedings to the Tribunal on 11 June 2012, as set out previously.

2.12 Although the claimant had received the documents anonymously in the post and the respondent had not authorised any disclosure of the documents, I have no doubt the claimant, who has a background as a solicitor, albeit not in recent practice, upon receipt of the documents, would have immediately realised, as soon as she read the documents, which related to the obtaining and provision of legal advice, had been disclosed to her in breach of confidence.

3.1 It has long been recognised there are two forms of legal professional privilege : legal advice privilege and litigation privilege. As Lord Carswell set out in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610. Three Rivers (No 6) at Paragraph 105 legal professional privilege:-

“Is a single integral privilege whose sub-heads are legal advice privilege and litigation privilege.”

In summary, legal advice privilege applies whether or not litigation is contemplated or pending but is considered to cover a narrower range of communications; whereas litigation privilege applies only where litigation is contemplated or pending, but extends over a wider range of documents. Legal advice privilege is both a procedural and a substantive right, not tied to the conduct of litigation.

In the recent Supreme Court decision in the case of R (on the application of Prudential PLc and Another) v Special Commissioner of Income Tax and Another [2013] UKSC 1 (‘Prudential’), where the scope of legal advice privilege was reviewed, Lord Neuberger stated, in relation to legal advice privilege:-

“19 … applies to all communications passing between a client and its lawyers acting in their professional capacity, in connection with the provision of legal advice, ie advice which ‘relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law’.

(Three Rivers (No 6) [2005] I AC 610 Paragraph 38 Lord Scott).”

Lord Neuberger further went on to emphasise the rationale of legal advice privilege, and which I would suggest would be of equal application to litigation privilege:-

“21 First LAP exists to ensure what Justice Rehnquist referred to in the Supreme Court of the United States as ‘full and frank communications between attorneys and their clients’, which ‘promote(s) broader public interests in the observance of law and the administration of justice … As Lord Scott went on to explain at Paragraph 34 (Three Rivers (No 6)) the principle that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal stills … should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else’ is founded upon the ‘rule of law’.”

“22 Secondly, LAP exists solely for the benefit of the client … .”

“23 Thirdly, LAP is a common law principle which was developed by the judges, in cases going back to the 16^th Century … and its rationale was probably first coherently characterised in a judgment by Lord Brougham LC in Greenough v Gaskell [1833] 1 My e k 98, 102 – 103 (litigation privilege seems to have been developed rather later – see per Lord Carswell in Three Rivers (No 6) Paragraph 6.

… .”

The Prudential case was concerned specifically with the scope of legal advice privilege and, in particular, whether legal advice privilege extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession; and, if so, how far legal advice privilege extends or should be extended. In the event, by a majority, it was held, by the Supreme Court legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, eg accountants, even where that advice is legal advice which that professional person is qualified to give. In the present case this was not an issue since it was not disputed the legal advice provided to the respondent was given by Percy Johnston, a Solicitor in the DSO.

In the Prudential case legal advice privilege applies to relevant advice, as defined by Lord Neuberger, as set out above, given by the lawyer to the client. Unfortunately the case law is somewhat unsatisfactory as to who is the ‘client’ for these purposes; an issue which was explored in some considerable detail by the representatives of the parties, in the course of their submissions to the Tribunal.

3.2 In Disclosure, 4^th Edition, Matthews and Malek, at Paragraph 11.14 it is stated, by the learned authors:-

“In principle it should make no difference if the confidential communications concerned between lawyer and client are effected by third parties, whether they are the agent of the lawyer or the client … However, the third party must be, not merely an agent of the solicitor or client in a general sense, but an agent for the purpose of communicating with the other party to give or to obtain legal advice. This test can be satisfied by the circulation (within the client-organisation) of internal memoranda for the purpose of transmitting such advice, which memoranda will also be privileged …

11.16 The corporate client has no physical persona and can only act through others as agents, whether directors or other officers, employees or independent contractors. The question then arises as to whether communications with such agents (whatever their contractual status vis à vis the company) are communications with the client or with third parties. In Three Rivers District Council v Bank of England (No 5), the Court of Appeal reversing the decision of the judge, held that communications between the bank’s solicitor and the bank’s employees and ex-employees as to facts and matters that had occurred in the bank’s business, for the purpose of advising the bank on presentation of evidence to a non-statutory (non-litigation) inquiry were not privileged. In the course of that decision the Court of Appeal rather surprisingly held that information from an employee stands in the same position as information from an independent agent and that the solicitor’s ‘client’ in this case was a group of three named bank officials (not including, for example, the Governor) who had been internally designated as the conduit through which all communications with the solicitors should pass. It therefore seems that the Court of Appeal’s decision on the privilege point was in part determined by the decision to treat the bank’s employees (and ex-employees) as mere third party witnesses rather than as emanations of the client. The Bank was refused leave to appeal from this decision. When the Bank successfully appealed a subsequent decision building upon the earlier one, it invited the House of Lords to comment on the correctness of the earlier Court of Appeal decision, in particular as to who was ‘the client’. However [the House of Lords] … ultimately declined to re-visit the earlier decision, as it strictly did not arise in the later case.

That leaves the decision of the Court of Appeal technically intact. But it is to be noted that in the House of Lords, Lord Carswell considered, obiter, there was ‘considerable force’ in the view of the judge (reversed by the Court of Appeal) that the communications with the employees ‘not being a communication with a third party’ were privileged. This suggests that the employees should have been treated as emanations of the client, after all. On principle, the Court of Appeal’s view is at least too sweeping. There may well be case where employees (and more likely ex-employees) should be treated as mere third parties rather than as the client. On the other hand, in cases where they, in essence, are authorised by the company to (and do) prepare, contribute to or make requests for legal advice, or receive and disseminate or discuss and implement such advice appropriately, then for the purposes of legal privilege, they should be treated as the client and the client’s privilege upheld accordingly … .”

3.3 Further, in Documentary Evidence (11^th Edition) Hollander, at Paragraph 17.07, the learned author recognised the analysis of who is the client, where the client is a legal entity, such as a company, is more complex:-

“In Three Rivers (No 5) the Court of Appeal rejected the notion that the Bank of England could itself be regarded as the client for this purpose and thus held that correspondence within the bank which came into existence for the purpose of seeking legal advice from Freshfields was not privileged. The Court of Appeal, accepting the arguments of the claimants, treated the BIU as the client so that communications from the BIU to other employees or officers of the Bank were not privileged … There was no argument before the Court of Appeal as how in any given case ‘the client’ is defined. The Court of Appeal appears to have envisaged that the client would be the person or persons charged with the obtaining of legal advice within the entity. They based this on passages in Anderson v Bank of British Columbia. Longmore LJ said of this that the rationale was:-

‘ … that information given by an employee to an employer or fellow employee, or information given only as agent to a principal, stands in the same condition as matters known to the client and does not, of itself, attract privilege in the first of Mellish LJ’s two categories. This is so even though, on the facts, it is intended that it be shown to a solicitor.’

…

The House of Lords in Three Rivers (No 6) heard arguments on the ‘who is the client’ issue but declined to express a view on the point. However it made it clear that it was not to be taken as accepting or rejecting the decision . Lord Scott said that the issue was a difficult one with differing views, leading to diametrically opposed conclusions, each being eminently arguable. Lord Carswell said he should not be taken to have approved the correctness of the decision in Three Rivers (No 5) and would reserve his position on it.

… The position is as unsatisfactory as it is possible to imagine. The authority of the Court of Appeal judgment in Three Rivers (No 5) binds courts below the House of Lords, but the House of Lords has made it clear there are powerful arguments both for and against that decision. Thus the issue will have to be re-visited by the Supreme Court … The issue is an important one which affects how companies organise their communications.

If the principle set out in the Court of Appeal in Three Rivers (No 5) stands as good law it will be necessary to work out its consequences. It is not clear whether if the client designated for the purpose of a particular matter all the individuals who had factual knowledge of the matter as being the persons charged with obtaining legal advice, the court would accept that definition of ‘the client’ so as to make communications between the lawyer and each of those persons privileged … .”

3.4 In Paragraph 17.09 of Documentary Evidence, it is suggested the conventional view of Three Rivers (No 5) was that the Court of Appeal held:-

“(i) communications within a company are not privileged even though the purpose is to obtain information in order to instruct lawyers; and

(ii) only communications between the lawyers and the person or persons within the company charged with the obtaining of legal advice are privileged; and

(iii) this involves consideration in any case as to which person falls within (ii) and for this purpose such persons within the company are to be treated as ‘the client’ … .”

However, as pointed out in Documentary Evidence (Paragraph 17.09) even this view has been the subject of much criticism by academic writers. Further, at Paragraph 17.09 it is suggested:-

“The proper analysis would focus not on whether a particular person was charged by the company with obtaining legal advice, but on whether a person was authorised by the company to communicate with the lawyers in relation to the matter in question.

Acceptance of this analysis would probably not conflict with the judgment of the Court of Appeal … Lord Scott in Three Rivers (No 6) said in the course of argument:-

‘ … It seems to me that where a company is concerned, the company who is going to pay for the advice is the client … whether it is an employee, or whoever it is, a director, and the lawyer is to be taken to be a communication from the company client, must be a question of fact which depends in each case on the type of communication and the circumstances … .’ .”

However, it is noted what Lord Scott stated, as set out above, was only a comment in the course of argument and therefore strictly obiter.

3.5 Of course, it must be remembered that decisions of the Court of Appeal in England and Wales, such as Three Rivers (No 5), are persuasive and, in particular, where there are no decisions of the Northern Ireland Court of Appeal on the particular issue, they are not strictly binding on courts and Tribunals in this jurisdiction in Northern Ireland. Also, as set out above, anything said in the House of Lords in Three Rivers (No 6) on the above issue of ‘who is the client’, may be of considerable interest, it is strictly obiter in the circumstances. Neither representative referred me to a relevant decision by the Northern Ireland Court of Appeal in relation to the issue of ‘who is the client’ following Three Rivers (No 5) or indeed Three Rivers (No 6); nor was I able to find any such decision from my own researches. In Henry v Henry [2007] NIQB 67, Deeny J followed Three Rivers (No 6) but, in doing so, it was not necessary for him to consider ‘the client issue’, as determined in Three Rivers (No 5).

3.6 The second category of legal professional privilege is wider than the first category of legal advice privilege but it only arises where litigation is contemplated or pending (Waugh v British Railways Board [1980] (AC) 521). The relevant test has been more recently described as - ‘where litigation is reasonably a prospect’ (Re: Highgrade Trades Ltd [1984] BCLC 151). It has long been recognised it does not matter whether a course of action has arisen or whether the other party was aware that litigation was a reasonable prospect.

In United States v Philip Morris [2009] EWCA Civ 330 the Court of Appeal, Brooke LJ, confirmed the ‘real prospect test’ but made it clear that the prospect of litigation did not have to be greater than 50 per cent for litigation privilege to apply and it was not therefore necessary to show the litigation was more likely than not. It is an objective test. In order for litigation privilege to apply, therefore it is necessary to show there has been:-

“A confidential communication between client and lawyer or lawyer and agent or between client or lawyer and a third party made for the dominant purpose of use in litigation; that is, to seek or provide information or evidence to be used in, or in connection with, litigation in which the client is or may become a party when the litigation is either in process or reasonably in prospect … .” (Documentary Evidence Hollander Paragraph 18.01)

As stated previously, in relation to litigation advice privilege, (see Paragraph 3.2 of this decision) communications may be covered by litigation privilege, if they otherwise qualify, but are made through the medium of agents (see Anderson v Bank of British Columbia [1876] 2 CLD 644).

3.7 In relation to litigation privilege a major issue which frequently arises is applying the necessary dominant purpose test, since some documents are frequently brought into existence for more than one purpose. In Waugh v British Railways Board [1980] AC 521 it was held the test was as follows, following Grant v Downs [1976] 135 CLR 674:-

“A document which was produced or brought into existence either with the dominant purpose of its author, or the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.”

Again, the purpose is therefore to be determined in light of all the circumstances. It is to be determined objectively and a relevant consideration when doing so can be to consider which party is responsible for the communication coming into existence and why (see Guinness Peat Properties v Fitzroy Robinson Partnership [1987] IWLR 1027). In some cases it may be necessary to also consider the intention of the employer of the creator of the document (Pricewaterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC S83).

4.1 In light of the findings of fact made by me and the case law and legal commentary set out in the previous paragraphs I reached the following conclusions in relation to the issue whether the documents contained in the agreed bundle were the subject of legal professional privilege as set out in the following sub-paragraphs.

4.2 I am satisfied that the contents of all the said documents, for the purposes of legal advice privilege, fall within the terms of the dicta set out in Paragraph 19 of the judgment of Lord Neuberger in the Prudential case, where he gave the majority judgment. Indeed there was no real dispute between the parties that the legal advice sought and provided, as set out in the said documents, was in the nature of ‘advice which relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law’.

4.3 The real dispute between the parties related to who was ‘the client’ for the purposes of this legal advice, in view of the confused legal situation which has arisen, following Three Rivers (No 5) and (No 6). Firstly, it must be noted that Three Rivers (No 5), being a decision of the Court of Appeal in England and Wales is not binding on this Tribunal and, at best, it is persuasive. Three Rivers (No 6), a decision of the House of Lords, is not strictly binding but is clearly highly persuasive although it has to be recalled what is stated in the course of the judgments on the issue of ‘who is the client’ is obiter. I think it is possible to suggest that the decision in Three Rivers (No 5) which has led to the present difficulties, as referred to previously in Disclosure – Matthews Malek and Documentary Evidence – Hollander, may have arisen from the particular facts of the case and which led the Court of Appeal to find that the client, somewhat surprisingly, in that particular case on its facts was not the Bank of England but the three named bank officials.

In light of the dicta in Three Rivers (No 6), albeit obiter, by the members of the House of Lords and the commentary in Documentary Evidence Paragraph 17.09, as referred to previously, I have reached the conclusion that the client, at all material times was the respondent and that Mr Higgins, Dr McGinley, Ms Downey and Ms King in their respective roles in the respondent at the material time, sought and obtained the legal advice not as clients themselves but as emanations of the client. In their respective roles all were authorised and designated by the respondent to communicate with Mr Johnston of DSO in relation to obtaining and receiving the legal advice.

4.4 I have therefore concluded that the said documents containing the said legal advice, which was sought and obtained by the respondent, as the client, from Mr Johnston, Solicitor, of DSO, were the subject of legal advice privilege.

4.5 Even if I am wrong, I am satisfied the advice contained in the e-mail dated 2 December 2011 – Percy Johnston to Deirdre King and the e-mail dated 16 December 2011 – Percy Johnston to Aideen McGinley was the subject of litigation privilege. It is not relevant that at the date of the said e-mails the claimant herself was not aware there was any litigation in relation to herself contemplated; albeit I think she would have been aware following her presentation to the Chairman of the Board of the respondent in October 2011 that her position with the respondent was under some scrutiny with the potential for further action, including disciplinary action by the respondent.

I am satisfied that following the presentation, which had clearly not gone well and there was to be a note of ‘no confidence’ passed by a Sub-Committee of the Board at its meeting on 15 December 2011, subject to formal ratification by the Board at its January 2012 meeting, that there was a ‘real prospect’ of litigation involving the claimant. I am further satisfied that, in this context, the e-mails dated 2 December 2011 and 15 December 2011 were obtained with this dominant purpose. The e-mails contained legal advice from Mr Johnston relating to the various types/heads of litigation which could be brought by the claimant together with the result of any such litigation in the circumstances that had arisen, as seen above, following the presentation. The advice sought in those circumstances had moved from general to more specific advice in relation to litigation issues relating to the claimant and the circumstances that had arisen. I was not satisfied that any earlier e-mails satisfied the said tests for litigation privilege, being in the nature of general legal advice and, in circumstances, where litigation was not contemplated/a real reason.

5.1 Having determined that the documents contained in the agreed schedule were the subject of legal professional privilege (see Paragraph 4 of this decision), it was then necessary for me to consider whether the privileged material could be used by the claimant in the bringing of her claims against the respondent before this Tribunal.

5.2 In essence, there would appear to be two situations where this issue requires to be considered. First, is where the lawyers of one party have inadvertently disclosed privileged documents. The other is where a party, by some other means, comes into possession of the privileged documents of the other, for reasons other than the inadvertence of a lawyer. In the present case, the relevant authorities in relation to what is required to be done, if the lawyer inadvertently discloses privileged documents, did not require to be considered further, as there was no suggestion, in this particular case, that the claimant had come into possession of the privileged documents due to any inadvertence on the part of the lawyer (see further my decision in the course of a Case Management Discussion in the case of X v Police Service of Northern Ireland, Case Reference Nos: 5864/09 and 330/10, as set out in the Record of Proceedings dated 18 November 2010, unreported).

As far as I am aware, in this jurisdiction, the only relevant decision, relating to the use which a party can make of documents, in Tribunal proceedings, which have come into the party’s possession, and are the subject of legal professional privilege, is to be found in the decision of Morgan J, as he then was, in the case of Department of Health, Social Services and Personal Safety v Stacey [2004] NICH 6. The representatives referred me to no further relevant decisions. In that case, the claimant, Ms Stacey, had brought Tribunal proceedings against the respondent, the said Department, claiming unlawful sex discrimination and/or equal pay. The claimant was provided with certain documents by an official of the respondent, which it was agreed, for the purposes of the proceedings, were the subject of legal professional privilege, without any authorisation by the respondent and in breach of the duty of confidence owed by the official to the Department. The claimant’s representative informed the respondent Department’s representative, prior to the commencement of the Tribunal hearing, she intended to rely on the documents at the Tribunal hearing. The respondent’s representative then applied for an adjournment of the Tribunal proceedings to enable it to seek an injunction to restrain and prohibit the claimant from using, producing or referring to the document in the Tribunal proceedings and/or for delivering up of the said documents. There is no discussion in the decision, in relation to the issue whether the respondent could have availed of any remedy in the Tribunal to prevent the claimant using the said documents. As stated previously, the respondent’s representative, in the present case, was not presently seeking any injunctive relief and, was of the opinion that the Tribunal could provide the respondent with a relevant remedy, under its Rules of Procedure, without the necessity to make an application to adjourn the Tribunal proceedings and to apply for any injunctive relief in the High Court.

Although, as seen above, the Stacey case related to an application for injunctive relief, in circumstances where there was a breach of confidence, it did not therefore specifically address the issue of privilege, which was admitted; nor, as seen above, was the court required to consider the issue whether the Tribunal could provide, under its Rules, any relevant remedy to prevent the claimant from using the privileged documents during the course of the Tribunal proceedings.

Morgan J, in the course of his judgment, stated:-

“Once, however, a document in respect of which a party has not waived privilege, has been seen by an opposing party, there is no rule of evidence to prevent the other party from leading secondary evidence of the document, if relevant. That is the effect of Calcraft v Guest [1898] I QB 759. In these circumstances it may be necessary to rely upon the law of confidence in order to protect the privilege as explained in Lord Ashburton v Pape [1913] 2 CH 469.”

Morgan J then held, following the decisions in B & Others v Auckland District Law Society & Another [2003] AC 736 and Goddard v Nationwide Building Society [1987] QB 670, that there had been, on the facts, an actionable breach of confidence and, in the exercise of its discretion the injunctive relief sought should be granted. It is important to note that, in granting the injunctive relief, Morgan J did so on the basis of the breach of confidence rather than privilege.

As stated in Disclosure, 4^th Edition, Matthews & Malek, Paragraph 11.85:-

“ … if, in principle, an opponent has secondary evidence available to him of a privileged original document, then privilege has nothing to do with the matter for the client, his lawyer or his witness is not being asked to disclose anything and the question is simply one of the admissibility of secondary evidence (Calcraft v Guest [1898] I QB 759). However, if the circumstances in which the evidence was obtained give rise to an actionable breach of confidence, then the opponent may be restrained from using that evidence and may be ordered to deliver up all copies and notes of it (on the basis of breach of confidence rather than privilege). Indeed, in such cases, the Court has no discretion on the basis of materiality or ‘justice’ but should normally intervene.”

This is consistent with the judgment of May LJ in the case of Goddard v Nationwide Building Society [1987] QB 670, when he said:-

“If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation : however if he has not yet used the document in that way, the mere fact that he intends to do so is no answer to a claim against him by a person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making use of any information contained in them.”

It is apparent therefore, from the above authorities, that it would have been open to the respondent’s representative, in this present case, to make an application to the High Court for injunctive relief, as was done in the Stacey case, to prevent the claimant from using the privileged documents in the course of these Tribunal proceedings; and it would appear, in light of the Stacey judgment and the above authorities such an application, subject to further submissions by either party, on the facts of the present case might be successful.

5.3 The issue therefore for me to determine, in light of the foregoing, was whether the Tribunal, under its Rules of Procedure, has power to refuse to admit in evidence, the said documents which I have found to be the subject of legal professional privilege, and which privilege has not been waived by the respondent. In addition the said documents had been disclosed to the claimant in breach of confidence. If the Tribunal does not have such power, then it will be a matter for the respondent, as I have indicated above, to seek injunctive relief as was done in the Stacey case.

In light of the above authorities, I am satisfied that the privileged documents contained in the said schedule, which had been obtained by the claimant in the post, in the circumstances referred to previously, are secondary evidence of privileged original documents; and the issue for me to determine is therefore whether such secondary evidence may be admitted in evidence under the Tribunal’s Rules of Procedure or whether the Tribunal has a discretion to refuse to admit such documents in evidence under its Rules of Procedure.

5.4 The Tribunal’s Rules of Procedure are contained in Schedule 1 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’).

In Regulation 3 of the said Regulations, it is provided:-

“(1) The overriding objective of these Regulations and the Rules in Schedules 1 … is to enable Tribunals and Chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issue;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) The Tribunal or Chairman shall seek to give effect to the overriding objective when it or he –

(a) exercises any power given to it or him by these Regulations or the Rules in Schedules 1 …; or

(b) interprets these Regulations or any Rule in Schedules 1 … .

(4) The parties shall assist the Tribunal or the Chairman to further the overriding objective.”

In Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, Morgan LCJ approved the judgment of Girvan LJ in Peifer v Castlederg High School and Western Education & Library Board & Another [2008] NICA 49, when he stated, with reference to the terms of the overriding objective:-

“ … dealing with cases justly involves dealing with cases in ways which are proportionate to the complexity and importance of the issues and ensuring that the case is dealt with expeditiously and fairly and the saving of expense.

… . Parties and practitioners are bound to conduct themselves in a way which further those overriding objectives. Having regard to the imperative nature of the overriding objectives, Tribunals should strive to avoid time-wasting and repetition. Parties should be required to concentrate on relevant issues and the pursuit of irrelevant issues and questions should be strongly discouraged … the overriding objectives, which are, of course, always intended to ensure that justice is done, impel a Tribunal to exercise its control over the litigation before it robustly but fairly. Tribunals shall expect the appellant supervisory courts to give proper and due weight to the Tribunal’s decisions made in the fulfilment of their duty to ensure the overriding objectives. Tribunals should not be discouraged from exercising proper control of proceedings to secure those objectives through fear of being criticised by a higher court which must itself give proper respect to the Tribunal’s margin of appreciation in the exercise of its powers in relation to the proper management of the proceedings to ensure justice, expedition and the saving of costs … .”

5.5 Under Rule 46 of the Rules of Procedure it is provided:-

“(1) Subject to the provisions of these Rules and any Practice Directions, a Tribunal or Chairman may regulate its own procedure.”

Further, under Rule 13 of the Rules of Procedure it is provided that:-

“ …

(2) So far as it appears appropriate to do so, the Chairman or a Tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any statutory provision or rule of law relating to the admissibility of evidence in proceedings before the courts.

[Tribunal’s emphasis]

(3) A Chairman or a Tribunal (as the case may be) shall make such enquiries of persons appearing before him or it and of witnesses as he or it considers appropriate and shall otherwise conduct the hearing in such manner as he or it considers most appropriate for the clarification of the issues and generally for the just handling of the proceedings.”

5.6 The Tribunal regularly, for example, whether at a pre-hearing review or in the course of a substantive hearing, has to consider and determine whether to admit or exclude evidence under its powers relating to evidence sought to be used by a party in the course of proceedings. In exercising its discretion under the said Rules of Procedure, which as seen above are very wide, the Tribunal also has to give effect to the terms of the overriding objective.

For example, this can involve a Tribunal determining at a pre-hearing review, on foot of an application by a party, whether to strike-out and not admit in evidence a party’s witness statement, in whole in or in part, in advance of the substantive hearing (see McNally v Northern Ireland Fire & Rescue Service & Others [2008] NIFET 46; Bowers v Amicus (MSF) [2007] NIFET 161; O’Prey v National Australia Group Ltd [77/04 FET); Briercliffe v Southern Health & Social Care Trust (74/12)). Sometimes it is not possible for the Tribunal to make such a decision at a pre-hearing review and it requires to be made in the course of the substantive hearing, in light of the dicta in Beazer Homes Ltd v Stroud [2005] EWCA Civ 265:-

“ …

10. In general, disputes about the admissibility of evidence in civil proceedings are best left to be resolved by the judge at the substantive hearing of the application or at the trial of the action, rather than at a separate pre-hearing review. The judge at a pre-hearing review on admissibility will usually be less well-informed about the case. Preliminary hearings can also cause unnecessary costs and delays.

11. In the present case no good reason is apparent nor has one been advanced from departing from the usual practice. It has not been suggested that this is one of those cases in which the ruling on admissibility would dispose of or abbreviate the application … .”

In the present case, as set out above, the representatives agreed, for the reasons set out previously, that these issues should be determined in advance of the substantive hearing, insofar as it was possible to do so.

Issues about the exercise of the admission of evidence, and the Tribunal’s wide powers set out under Rule 13(2) and (3) of the Rules of Procedure, in my experience, can also frequently arise in the course of a substantive hearing. This can include issues relating to privileged documents and/or issues of waiver. Determination of such an issue has not required, in my experience, a party to have to proceed to the High Court to obtain injunctive relief to prevent the admission in evidence of such privileged documents. In my judgment, it must, in principle, be contrary to the terms of the overriding objective, to require a party, whenever an issue arises about the admission in evidence of a privileged document in the course of proceedings, to have to make such an application to the High Court for injunctive relief. It would mean, contrary to the terms of the overriding objective, that the proceedings were not able to be dealt with expeditiously and fairly and in a manner proportionate to the complexity and importance of the issues and clearly would increase expense for the parties. It is also, in my judgment, relevant to note that, prior to 4 April 2004, the Rules of Procedure did not have a specific Regulation relating to the overriding objective, as set out above. However case law, since that date, not only in the Tribunals (see Rogan) but also in the Courts in Northern Ireland, where a similar provision is to be found in Rule 1 of the Rules of the Court of Judicature (Northern Ireland) 1980, as amended, have placed considerable emphasis on the terms of the overriding objective, when applying, for example, Rules of Procedure in the said respective jurisdictions.

5.7 In this context, it may be helpful to note that in the White Book on the Civil Procedure Rules in Great Britain, albeit these Rules do not apply in Northern Ireland, express provision has been made in the Civil Procedure Rule, Rule 32.1, as follows:-

“(1) The Court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which evidence is to be placed.

(2) The Court may use its powers under the Rule to exclude evidence that would otherwise be admissible.”

Indeed, in a commentary at Paragraph 32.4.21 of the White Book it is stated:-

“A party’s awareness of the Court’s wide powers to control evidence may encourage them to apply to the Courts for an Order striking-out part of or the whole of a witness statement served on them by their opponent. Such an application might be made, for example, on the ground that the material sought to be struck-out is irrelevant or would unnecessarily lengthen the proceedings or is disproportionate (as well as, of course, on the ground that its disclosure would be in breach of a privilege enjoyed by the party) [Tribunal’s emphasis] … .”

There is certainly no suggestion, in the above commentary, that in the exercise of its powers to control evidence, under the said Rules of Procedure, where privilege is an issue, injunctive proceedings are required. In Northern Ireland the Civil Procedure Rules do not apply and there is no similar Rule to Civil Procedure Rule 32.1 under the Rules of the Court of Judicature (Northern Ireland) 1980, as amended. As seen in Documentary Evidence, Charles Hollander QC, 11^th Edition, Paragraph 26.04, Civil Procedure Rule 32.1 has been used in a wide set of circumstances to exclude and/or control evidence.

5.8 Given the Tribunal’s wide powers under Rule 13(2) of the Rules of Procedure, in relation to the admissibility of evidence and to the conduct of proceedings for the clarification of issues and/or the just handling of the proceedings under Rule 13(3) of the Rules of Procedure, coupled with the terms of the overriding objective, the issue arises whether the Tribunal has the necessary power to exclude evidence, such as privileged material, even though there is not an express power such as seen in the Civil Procedure Rule 32.1.

5.9 In the case of R (Morgan Grenville and Company Limited) v Special Commissioner of Income Tax [2003] 1 AC 563 at Pages 606 and 616, Lord Hoffman and Lord Hobhouse described the protection of communications on the basis of legal professional privilege as a fundamental human right. The importance of such protection has again been recently confirmed by the Supreme Court in the decision in the Prudential case.

As Deeny J in Henry v Henry [2007] NIQB 67 emphasised the issue of legal professional privilege is not one in which the court discloses or does not disclose in the course of a balancing exercise, it is an absolute privilege. He referred to the dicta of Lord Taylor in R v Derby Magistrates Court ex parte B [1996] 1 AC 487:-

“The principle which runs through all these cases and the many other cases which were cited is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. 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 than an ordinary rule of evidence, limited in the application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.” (Referred to also by Morgan J in Stacey)

5.10 Given the said documents were the subject of legal professional privilege, with consequences for both parties, if allowed to be admitted in evidence, I am satisfied the decision whether the Tribunal should make an Order, under the said Rules of Procedure relating to admission of evidence, should be made by me at this pre-hearing review and should not await determination at the substantive hearing (see further Beazer Homes Ltd v Stroud [2005] EWCA Civ 265).

5.11 In light of the foregoing, I therefore decided in accordance with wide powers set out in Rule 13 of the Rules of Procedure, relating to the admission of evidence, and after taking into account the terms of the overriding objective but, in particular, the absolute nature of the said privilege, that the said documents cannot be relied upon by the claimant in relation to these proceedings.

5.12 Even if I am wrong, I would have reached the same decision on the basis that the documents had been disclosed to the claimant in breach of confidence (see Paragraph 2.12 of this decision). For the same reasons that Morgan J considered it appropriate to grant injunctive relief to protect a document, the subject of legal professional privilege, I consider that, for similar reasons, I should also refuse to admit the said documents in evidence in these proceedings, given the Tribunal’s wide powers to refuse to admit evidence. As Morgan J confirmed in Stacey no Article 6 considerations arose because ‘the public interest arises from the need to secure the conditions necessary for a fair trial’. I am not satisfied the claimant, in the present proceedings, will be deprived of a fair trial or an adequate remedy in relation to her said claims, because she cannot rely upon the privileged documents.

5.13 I therefore make the said Orders, as set out above.

Chairman:

Date and place of hearing: 29 November 2012; and

16 January 2013, Belfast

Date decision recorded in register and issued to parties: