Neutral Citation: [2016] IEHC 221
THE HIGH COURT
[2014 No. 8104 P.]
BETWEEN
PAUL MCMAHON
PLAINTIFF
AND
IRISH AVIATION AUTHORITY
DEFENDANT
RULING of Mr. Justice Barr delivered on the 28th day of April, 2016
Background
1. In this action, the plaintiff seeks damages for defamation in respect of statements contained in a report issued by the defendant on 18th August, 2014, arising out of an investigation into an incident where a parachutist was injured when he landed outside the designated drop zone. There is some dispute between the parties as to whether the report was a draft report or a final report. The court does not have to resolve that dispute in this application.
2. On 8th February, 2016, an order for discovery was made by this court, directing the defendant to make discovery of four categories of documentation. An affidavit of discovery was duly sworn by Mr. Niall Cummins on behalf of the defendant, on 5th April, 2016.
3. In the second part of the First Schedule to the affidavit of discovery, a number of documents were listed over which the defendant has asserted legal professional privilege. It is alleged that these documents relate to legal advice being sought and obtained by the defendant from its advising solicitors. A number of the documents related to communications between the officials within the defendant, who were part of the investigation team and the in-house solicitor employed by the defendant. In total, privilege was claimed over 88 documents.
4. In this application, the plaintiff has challenged the assertion of privilege in respect of 39 documents listed in the second part of the First Schedule. The plaintiff’s application was based on the affidavits sworn by his solicitor, Mr Johnston. He averred that the documents withheld on the pretext of legal privilege, will show the true intentions of the defendant and have been deliberately withheld for this reason. It was submitted that the documents referred to under the heading “professional communication of a privileged nature”, are not privileged communications or instructions going between the defendant and their solicitors. The plaintiff’s solicitor stated that the documents should be disclosed in order to determine if they formed part of a safety investigation concerning the plaintiff, or to determine if the defendant’s inclusion of such documents in its affidavit of discovery under privilege, was an attempt to cover up the fact that no such investigation concerning the plaintiff took place after 25th July, 2013.
5. The plaintiff’s solicitor stated that discovery of the relevant documents was necessary and was a critical aspect of the plaintiff’s case. It was submitted that it was clear from Mr Cummins’s affidavit of discovery on behalf of the defendant, that the claim of privilege was an exercise in frustrating the plaintiff and the court. Mr Johnston stated that the affidavit disclosed no new documentation, but claimed privilege in respect of internal communications between investigating officers. It was submitted that the plaintiff needs to determine if these documents formed part of a safety investigation or part of a contrived cover-up where no proper investigation, took place.
6. The plaintiff has therefore asked the court to view these documents and to rule on whether or not privilege has been correctly claimed in respect of them.
The Law
7. There was no great dispute between the parties as to the legal principles which are to be applied where a claim of legal professional privilege has been raised by a party. The right of a party to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice is well established. In Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 I.R. 469, Finlay C.J. stated as follows at p. 478:-
“Where a person seeks or obtains legal advice there are good reasons to believe that he necessarily enters the area of potential litigation. The necessity to obtain legal advice would in broad terms appear to envisage the possibility of a legal challenge or query as to the correctness or effectiveness of some step which a person is contemplating. Whether such query or challenge develops or not, it is clear that a person is then entering the area of possible litigation.
Having regard to those considerations I accept 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.”
8. It was submitted by the defendant that the essence of the claim of privilege was to assist in the important role of ensuring the proper administration of justice. It requires the litigant to be free to communicate with his or her legal advisers and to seek expert evidence from third parties to assess his or her position. See judgment of McCracken J. in Fyffes plc v. DCC plc [2005] 1 IR 59.
9. This view was endorsed by Laffoy J. in Martin v. Legal Aid Board [2007] 2 IR 759, where she stated as follows at para. 34 of the judgment:-
“What the judgment of Finlay C.J. illustrates is that in this jurisdiction the existence and the definition of the parameters of legal professional privilege is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice. It also identifies the nature of such requirement, which is the underlying rationale of the privilege - that the client should not be inhibited in the conduct of litigation or in obtaining legal advice by forced disclosure of communications and advice. Such inhibition might lead to the client not being ‘able to make a clean breast of it’ (per Jessel M.R. in Anderson v. Bank of British Colombia (1876) 2 Ch D 644 at p. 649), or holding ‘back half the truth’ (per Lord Taylor of Gosforth in R. v. Derby Magistrates’ Court; Ex parte B [1996] 1 AC 487 (at p. 507)), or even tempt a client’s counsel ‘to forgo conscientiously investigating his own case’ until ‘the eve of or during the trial’ (per O’Leary J. in Ottowa-Carlton (Regional Municipality) v. Consumers Gas Company (1990) 74 D.L.R. (4th) 742 at p. 748, or constitute ‘a prohibition upon professional advice and assistance’ (per the United States Supreme Court in Connecticut Mutual Insurance Company v. Schaefer (1876) 94 U.S. 457). It is to obviate such outcomes, which would undermine the proper, fair and efficient administration of justice, that legal professional privilege exists and has been elevated beyond a mere rule of evidence to ‘a fundamental condition on which the administration of justice as a whole rests’ (per Kelly J. in Miley v. Flood [2001] 2 IR 50 at p. 65).”
10. The defendant also referred to the judgment of Smyth J. in Shell E. & P. Ireland Limited v. McGrath (No. 2) [2007] 2 IR 574, where the learned judge described the rational for the existence of the privilege:-
“The rationale for legal professional privilege is to ensure that a client may fully instruct his lawyer freely and openly safe in the knowledge that what he says to his lawyer in confidence will never be revealed without his consent.”
11. The learned judge stated that the interest of the client in maintaining the privilege was based on the twofold argument that, firstly the client has an interest in maintaining the confidentiality of the communication but, also, an interest in not having the document used against him in the proceedings, in the event that the privilege is lost or impaired.
12. The defendant accepted that the individual or entities seeking to invoke the privilege, bore the burden of establishing that the document or information sought to be disclosed consisted of a confidential communication made in the course of a professional legal relationship for the purpose of giving or receiving legal advice. It was submitted that the first element of this is that there must be a communication between the client and the lawyer. The term communication is given a broad definition for the purposes of privilege and covers a range of information conveyed orally and in a variety of written or electronic forms. This includes letters, faxes and emails and also extends to notes of meetings or discussions compiled by the lawyer in the course of the communication.
13. It was submitted that in this case, the vast bulk of the documents challenged consisted of emails passing between senior personnel in the defendant authority and its in-house solicitor, Ms. Aideen Gahan.
14. The second feature is that the communication must be made in confidence. It was submitted that irrespective of the mode of communication, the underlying purpose must relate to the giving or receiving of legal advice in the course of the confidential discussions between the lawyer and client. The defendant referred to the decision of Scott L.J. in Three Rivers District Council v. Governor and Company of Bank of England (No. 6) [2005] 1 AC 610, where Scott L.J. stated as follows:-
“24. First, legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement.”
15. It was submitted that confidentiality assumed the existence of two elements: the passing of communications in private and an intention on the part of the privilege holder to maintain secrecy. It was submitted that each of the documents under challenge were confidential to the defendant and were to or from, or copied to, staff of the defendant, its in-house solicitor and/or its external solicitors, Messrs. A&L Goodbody.
16. The third condition of legal advice privilege was that the communication was made either to or by a lawyer during the course of a professional legal relationship. For the purposes of privilege, the professional legal relationship need not predate the seeking of the advice. The relationship will be deemed to exist provided the client communicated with the lawyer with the intention of establishing the relationship.
17. The definition of “lawyer” for this purpose includes solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General, see “Evidence” Declan McGrath (2nd Ed.), pp. 663 and 664.
18. It was submitted that in Geraghty v. Minister for Local Government [1975] I.R. 300, the principle of protection was applied to the permanent legal advisers to a government department. Griffin J. endorsed the proposition set out in the English case of Crompton Limited v. Customs and Excise Commissioners (No. 2) [1972] 2 Q.B. 102; [1974] A.C. 415 and stated as follows:-
“It was held that there can be no difference between the position of a full-time salaried legal adviser employed by a government department, a local authority, an industrial concern or any single employer, and the position of a legal adviser who practises his profession independently and is rewarded for his services by fees. In my opinion, that issue in that case was correctly decided and communications between the defendant as Minister, his parliamentary secretary and the officials of the Department of Local Government and the permanent legal advisers to the department for the purpose of obtaining or giving advice respectively are privileged.”
19. The final condition attaching to legal advice privilege is that the communication must have been made for the purposes of the giving or receiving of legal advice. In Buckley v. Bough (Unreported, Morris J., 2nd July, 2001), Morris J. held:-
“What is privileged is the communication. The communication only attracts privilege if it seeks or contains legal advice. The communication of other information is not privileged in Irish law.”
20. The defendant referred to the textbook “The Modern Law of Evidence” by Keane & McKeown (10th Ed.), where the learned authors expressed the opinion that “legal advice” for the purposes of legal advice privilege does not mean advice given by a lawyer without more, but advice about legal rights and liabilities. The learned authors went on to state that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client and the continuum as a whole can attract legal professional privilege.
21. A similar view was noted by Ms. Liz Heffernan in her textbook, “Legal Professional Privilege” (2011) at para. 2.56.
22. The defendant submitted that they had correctly asserted legal privilege over the documents listed in the second part of the First Schedule to the affidavit of discovery. The relevant documents concerned communications between the defendant and its legal advisers, which were made for the dominant purpose of seeking and providing legal advice. The documents largely consist of emails which pass on advice from the defendant’s external solicitors, A&L Goodbody, or seek advice either from the in-house solicitor, or the external solicitors, or discuss advice received from the solicitors, or brief internal staff on the legal advice received and are part of an email thread or “continuum” in that context.
23. It was submitted that the courts have protected such communications for a long number of years. Such protection was afforded to enable the proper administration of justice by allowing a client to communicate confidentially with his or her lawyer without the fear of that confidentiality being breached. It was submitted that the defendant had satisfied the requirements as set out in the case law to correctly claim privilege over the documents outlined in the second part of the First Schedule. It was submitted that there were no grounds for preventing the defendant asserting legal professional privilege over the disputed communications.
24. The court was furnished with a full set of the documentation over which privilege has been claimed. Both parties agreed that it was appropriate for the court to examine the disputed documents and rule upon whether privilege had been correctly claimed over them.
Conclusions
25. The court has reviewed all of the disputed documents. In the conclusions which follow, the defendant’s in-house solicitor, Ms. Aideen Gahan will be referred to by the letters “A.G.”. The defendant’s external solicitors, Messrs. A&L Goodbody, will be referred to by the letters “ALG”. The documents will be identified by the number which has been assigned to the documents in the relevant schedule.
26. The court has reached the following conclusions in respect of the disputed documents:-
Document No.
1. Document headed “Draft Report” dated 25th July, 2013. This contains handwritten notes by A.G., which contain legal advice on the draft report. It is therefore privileged.
2. Email from A.G. to John Murray. This is part of a continuum of emails and contains legal advice. It is privileged.
3. These are emails which appear to be a copy as those set out at 2 above. They are privileged.
6. Email attaching draft report which had been amended by ALG and contained their advice on matters arising. These advices are written into the draft report and the email from A.G. also contains advice. Accordingly, these documents are privileged.
7. The email is in response to an earlier email from A.G. which contained legal advice. Accordingly, these documents are privileged.
8. The email suggests having a meeting to discuss editing suggestions. The email itself is not privileged, but the attached draft report is privileged as it contains the advices of ALG.
10. The email concerns legal advice sought and received from the external solicitors. It is privileged.
15. This is a series of emails discussing advice received from ALG. It is privileged.
17. This is a series of three emails concerning advice given by ALG and seeking further advice. These are privileged.
19. Email from John Steel to A.G. concerning legal advice given by ALG. It is privileged.
22. Email enclosing responses of Irish Parachute Club Limited to the draft report and response of the plaintiff to the draft report. The emails merely pass on the responses received by IAA. These documents are not privileged.
25. Emails enclosing draft letters and ALG observations on same. These are privileged.
30. Emails concerning advices of ALG in relation to judicial review proceedings. These are privileged.
32. Emails discussing aspects of the judicial review hearing and advices of ALG thereon. These are privileged.
34. Emails concerning advice from ALG. These are privileged.
36. Advices from Ms. Killalea of ALG in relation to judicial review proceedings and other matters. This is privileged.
37. Email containing further advices from ALG in relation to the judicial review proceedings and the investigation. These are privileged.
39. Advices of ALG re: plaintiff’s claims for costs. These are privileged.
40. Emails seeking advice from A.G. in relation to draft correspondence. This is privileged.
41. Email advices from ALG in respect of correspondence received by IAA. This is privileged.
42. Internal emails re: finalising the investigation report. No legal advice sought or given. These emails are not privileged.
43. Emails from ALG to A.G. giving advice on legal issues. This document is privileged.
45. Email on purpose of meeting with ALG. This is not privileged.
46. Email from ALG in relation to defamation proceedings brought by the plaintiff. This is privileged.
48. Email concerning setting up a meeting. Email from ALG attaching memo of advices as to how investigation team should proceed. This documentation is privileged.
50. This document did not appear in the bundle of documents submitted to the court.
53. Advices of ALG to A.G. and request for advice from Niall Cummins to A.G. This is privileged.
59. Email asking if Mr. Cummins wanted a meeting with ALG and his response thereto. This documentation is not privileged.
60. Where Mr. Cummins seeks advice from A.G. This is privileged.
63. Emails concerning advice received from ALG. This is privileged.
64. Email enclosing draft report for review by A.G. and others and seeking advice of A.G. This documentation is privileged.
66. Email enclosing draft report is copied to A.G. for review. This document is privileged.
69. Email from Mr. Cummins to A.G. re: further draft of report. This is privileged.
70. Email from Lou Fine to A.G. seeking advice. This document is privileged.
71. Email Mr. Cummins to a number of people including A.G. is a continuum from email from ALG giving advice. This document is privileged.
72. Email from Niall Cummins to A.G. seeking advice. This is privileged.
73. Email from A.G. to Niall Cummins giving advice on applicable law. This is privileged.
79. Email from A.G. to Niall Cummins giving advices re: finalising report. This is privileged.
83. Email A.G. to Lou Fine and others containing legal advice on final draft of report. This is privileged.
27. Accordingly, with the exception of the documents identified above, being documents 8 (email only), 22, 42, 45 and 59, I find that the claim to legal professional privilege has been correctly maintained by the defendant over the disputed documents.
28. I therefore direct that the defendant is to furnish copies of documents 8 (email only), 22, 42, 45 and 59 to the plaintiff. Given the imminent date of the hearing of this action, the documents are to be furnished to the plaintiff’s solicitor within 48 hours.
