Artisan Glass Studio Ltd v Liffey Trust Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 17 May 2018
• Neutral Citation: [2018] IEHC 278
• Docket Number: Record No. 2008 No. 6253P
• Court: High Court
• Date: 17 May 2018

[2018] IEHC 278

THE HIGH COURT

McDonald J.

Record No. 2008 No. 6253P

BEWTEEN:

ARTISAN GLASS STUDIO LIMITED

Plaintiff

-and-

THE LIFFEY TRUST LIMITED

and

SLOVAK LIMITED

(SUBSTITUTED BY AVIVA LIMITED)

and

JIMMY ENNIS ENGINEERING LIMITED

Defendants

Privilege – Litigation – Documents – Plaintiff seeking to challenge the claim to privilege asserted by the second defendant over two documents – Whether litigation was reasonably apprehended at the time the documents in question were brought into being

Facts: The plaintiff, Artisan Glass Studio Ltd, in a motion before the High Court, challenged the claim to privilege asserted by the second defendant, Aviva Ltd, over two documents described in the Second Part of the First Schedule to the Affidavit of Discovery sworn on behalf of the second defendant as follows: (a) "Burgoynes' record of inspection – 15th November, 2002 – 2 pages"; and (b) "Burgoynes' Report – 20th March, 2003 – 14 pages, with diagrams, floor plans, Fire Brigade Report and photographs". The basis on which privilege was claimed over those documents (as set out in the Affidavit of Discovery) was that the documents came into existence in contemplation of litigation. The parties agreed that, based on the case law, the following questions and considerations arose on an application of this kind, namely: (a) whether litigation was reasonably apprehended at the time the documents in question were brought into being; (b) whether the documents in question were brought into being for the purpose of that litigation; (c) if the documents were created for more than one purpose, the documents will be protected by litigation privilege in the event that the litigation was the dominant purpose; (d) the party claiming privilege has the onus of proving that the documents are protected by privilege.

Held by McDonald J that that, having regard to the relevant chronology of events, litigation was reasonably apprehended by the time Burgoynes created the record of inspection dated 15 November, 2002. McDonald J held that, based on a review of the Burgoynes' Report of March 2003, the dominant purpose of the Report was apprehended litigation as between the different occupiers of units in the Liffey Trust premises, and that accordingly, it was protected by litigation privilege. In circumstances where he came to the conclusion that the record of inspection of 15 November, 2002 was not subject to a claim to privilege, it seemed to McDonald J that the Fire Brigade report requested on 13 November, 2002 must likewise be discoverable on the basis that there was no sufficient evidence before the court to demonstrate that by 15 November, 2002, the dominant purpose behind Aviva's retainer of Burgoynes was the apprehended litigation. In relation to the record of inspection of 15 November, 2002, McDonald J held that there was no basis for the court to conclude that when Burgoynes requested the Fire Brigade report on 13 November, 2002, the apprehended litigation was the dominant purpose underlying that request. Furthermore, it did not seem to McDonald J that any issue of severance arose; the Fire Brigade report was an annex to the Burgoynes' Report of March 2003 and had a separate and independent existence. McDonald J would therefore direct production to the plaintiff of the Fire Brigade report.

McDonald J held that the following orders should be made: (a) Aviva would be directed to produce to the plaintiff (i) the Burgoynes' record of inspection dated 15 November, 2002 and (ii) the Fire Brigade report dated 8 January, 2003 and requested by Burgoynes on 13 November, 2002; (b) Aviva would also be directed to swear a further Affidavit of Discovery listing the dates of the photographs annexed to the Burgoynes Report with liberty to the plaintiff to further contest any claim to privilege over those photographs; (c) both parties would have liberty to apply; (d) the application in relation to production of the Burgoynes' Report of 20 March, 2003 was refused subject to the ability of the plaintiff in the future to challenge the claim to privilege over any of the photographs attached thereto, and subject also to the production to the plaintiff in accordance with the order made above that the Fire Brigade report of 8 January, 2003 should be produced. McDonald J would hear the parties in relation to the time to be afforded to Aviva to comply with the directions made above. He would also hear the parties in relation to costs.

Judgment approved.

Judgment of Mr. Justice Denis McDonald delivered on 17 May, 2018

1 In the motion before the Court, the Plaintiff challenges the claim to privilege asserted by the second named Defendant over two documents described in the Second Part of the First Schedule to the Affidavit of Discovery sworn on behalf of the second named Defendant as follows:-

(a) ' Burgoynes' record of inspection – 15th November, 2002 – 2 pages'; and

(b) ' Burgoynes' Report – 20th March, 2003 – 14 pages, with diagrams, floor plans, Fire Brigade Report and photographs'.

2 The basis on which privilege is claimed over these documents (as set out in the Affidavit of Discovery) is that the documents came into existence in contemplation of litigation. Ms. Sandra Murphy (the deponent of the Affidavit of Discovery) avers that Aviva Insurance Limited (formerly Hibernian Insurance) first contemplated such litigation on 6 November, 2002. Thus, the sub-species of privilege relied upon is what is frequently called litigation privilege - or ' privilege in aid of litigation'.

3 The parties are agreed that – based on the case law - the following questions and considerations arise on an application of this kind, namely:-

(a) Whether litigation was reasonably apprehended at the time the documents in question were brought into being;

(b) Whether the documents in question were brought into being for the purpose of that litigation;

(c) If the documents were created for more than one purpose, the documents will be protected by litigation privilege in the event that the litigation was the dominant purpose;

(d) The party claiming privilege has the onus of proving that the documents are protected by privilege.

Was litigation reasonably apprehended at the time of creation of the report and the record of inspection?

4 The first question that requires to be considered is whether litigation could be said to be reasonably apprehended at the time of creation of the documents in question. In order to address this question, it is necessary to consider the relevant facts which emerge from the pleadings and affidavits before the court.

5 On 2 November, 2002, a fire broke out at premises owned by the first named Defendant ('the Liffey Trust Limited') at 117-126 Upper Sherriff Street, Dublin 1. Both Slovak Limited (which was originally named as second Defendant to these proceedings) and the Plaintiff had units at that premises. I should explain that from photographs of the premises which I have seen (attached to the Burgoynes' Report), the premises appeared to comprise a relatively extensive Victorian warehouse which had been converted and subdivided into a number of units. The Plaintiff was the occupier of Unit 44, while Slovak Limited was the occupier of Unit 42 from where it operated a bakery with ovens in 24 hour use. The Plaintiff alleges that the fire started in Slovak's unit, and escaped to the Plaintiff's premises causing substantial damage. The particulars of wrongdoing alleged in the Statement of Claim include the following allegations:-

(a) Slovak Limited caused or permitted an oven in the bakery to go on fire;

(b) Slovak allowed or permitted an unsafe installation of a gas oven, canopy and flue in its premises;

(c) Slovak Limited failed to properly inspect the flue;

(d) Slovak Limited caused or allowed or permitted the build-up of combustible material on the inside of the flue;

(e) The gas oven was installed in an unsuitable location in Unit 42 where it required a long section of horizontal flue to discharge the products of combustion of the gas heating the oven and the steam and oil fumes generated by the baking process in the oven and where it was foreseeable that there would be a build-up of combustible material in the flue that presented a danger and risk of fire in the flue.

6 It will be seen from the particulars of wrongdoing that there is a significant focus on the gas oven and associated flues situated on the premises occupied by Slovak Limited in Unit 42. The order for discovery made by the court on 7 March, 2016 was also similarly focused. It required Aviva to make further and better discovery of the following categories of documents:-

(a) Documentation relating to the inspection of the oven and flue;

(b) All reports compiled on behalf of Slovak Limited and/or Aviva – including the engineer's report in respect of the oven and flue;

(c) All documentation relating to the manufacturer type design and purchase agreement relating to the oven and flue.

7 It appears that the fire damaged a number of units within the Liffey Trust premises. It is clear from the papers which I have seen that both the premises of the Plaintiff and the premises of Slovak Limited were each extensively damaged by the fire. At this point, it is important to note that Slovak Limited had the benefit of fire insurance (with a ceiling on the level of public liability cover of IR£1.3 million) with Hibernian Insurance (now Aviva Insurance). While I have not been provided with a copy of the policy of insurance, it appears from the papers before the court that the cover extended to the damage to the premises of Slovak Limited itself and (in the event that Slovak Limited had liability to any third parties), the cover also extended to such liability (albeit subject to the ceiling on the level of public liability cover mentioned above).

8 According to Mr. Michael Corrigan, solicitor (who swore an affidavit on behalf of the...