Buckley v The Incorporated Law Society of Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Costello |
| Judgment Date | 01 January 1994 |
| Neutral Citation | 1993 WJSC-HC 3070 |
| Docket Number | [1990 No. 15632P] |
| Court | High Court |
| Date | 01 January 1994 |
1993 WJSC-HC 3070
THE HIGH COURT
BETWEEN:
and
Citations:
SMURFIT PARIBAS BANK LTD V AAB EXPORT FINANCE LTD 1990 ILRM 588
DIRECTOR OF CONSUMER AFFAIRS V SUGAR DISTRIBUTORS LTD 1991 1 IR 225
MURPHY V DUBLIN CORPORATION 1972 IR 215
MARKS V BEYFUS (1890) 25 QBD 494
D V NSPCC 1978 AC 171
R V LEWES JUSTICES (EX PARTE SOS FOR HOME DEPARTMENT) 1973 AC 388
Synopsis:
INCORPORATED LAW SOCIETY
Documents
Inspection - Objection - Privilege - Absence - Public interest - Action against society - Complaints made about conduct of solicitor - Complaints investigated by society - Plaintiff seeking inspection of documents resulting from investigations - (1990/15632 P - Costello J. - 2/11/93) - [1994] 2 I.R. 44
|Buckley v. Incorporated Law Society of Ireland|
WORDS AND PHRASES
"Public interest"
Documents - Production - Inspection - Objection - Privilege - Absence - Conflicting interests - Interest in encouraging establishment of true facts in litigation - Interest in not discouraging the making of legitimate complaints by citizens - (1990/15632 P - Costello J. - 2/11/93) - [1994] 2 I.R. 44
|Buckley v. Incorporated Law Society of Ireland|
PRACTICE
Documents
Discovery - Production - Inspection - Objection - Privilege - Public interest - Plaintiff's claim against Law Society - Relevance of complaints made by others against Society - Correspondence resulting from investigation of such complaints - Complainants" and Society's objections to production of such correspondence - (1990/15632 P - Costello J. - 2/11/93)1994 2 IR 44
|Buckley v. Incorporated Law Society of Ireland|
Judgment of Mr. Justice Costello Delivered the 2nd day of November 1993
The plaintiff in these proceedings suffered a double misfortune, firstly in being injured in an accident caused, he says, by the negligence of his employers and secondly in instructing a solicitor to further his claim for damages who so delayed the institution of proceedings that the claim became statute-barred. This present action is not against his solicitor for negligence (presumably such a claim is regarded as a worthless exercise), but against the Law Society for damages for negligence as well as for breach of duty and breach of statutory duty. In brief the plaintiffs allegation is that in renewing the solicitors practising certificate, in taking no adequate steps to investigate his affairs or to deal appropriately with complaints against him, the Society allowed the solicitor to continue in practise at a time when, had the Society properly fulfilled its duties, this would not have been permitted. The loss claimed for the defendants tortious acts is measured by the reference to the damages the plaintiff would have recovered had the proceedings against his employers been instituted in time. The Law Society had denied all liability to the plaintiff.
The plaintiff's accident occurred on the 20 April 1985 and his claim for damages would have been statute-barred on the 20th April 1988. It is common case that complaints by members of the public against the solicitor and been made to Law Society and investigated by it both prior to and subsequent to that date and that the solicitor was eventually struck off the roll of solicitors on the 23 April 1990. After the close of pleadings in this action the plaintiff applied for an order for discovery of documents and in particular sought discovery of documents relating to the complaints. The Master made the order sought and it is the appeal against that order that I am now considering. The defendants case is that the documents in their possession are privileged and inspection, it is said, is not legally permissible. As this appeal was pending it wrote to each of the complainants to see if they would agree to waive any privilege they might have enjoyed; some replied waiving the privilege whilst in other cases no reply was forthcoming. The Society then filed an affidavit of discovery on the 6 May 1993 to which a considerable number of documents were scheduled which the Society admits are relevant to the issue in these proceedings but in respect of which disclosure is declined on the ground or privilege. By agreement between the parties the appeal before me has been transformed so that instead of having to determine whether the Master should have made an order I am required to determine whether the claims of privilege made by the Society is correctly maintained. For the purpose of this determination it has also been agreed that I should examine the documents whose inspection is refused.
The relevant documents have been listed in the Schedule to the affidavit of the 6 May 1993 and copies collected into 8 books. I will consider the legal issues that arise by reference to these numbered Books.
These are called "Complaints Books 1, 2, and 3" and contain documents relating to complaints to the Society relating to individual complaints, including correspondence between the complainant and Society, between the Society and the solicitor and internal documents of the Society relating to the complainant. The legal issues that arise are as follows:
(i) The law of evidence protects from disclosure on the grounds of privilege communications between a solicitor and his client. This privilege, legal professional privilege, is founded on the impossibility of conducting legal business without professional assistance and on the necessity, in order to render that assistance effectual, of securing full and unreserved intercourse between the two. It follows therefore that in respect of letters of complaint written by a complainant to the Society and subsequent correspondence between the Society and the complainant no legal professions privilege arises as the complainants were not consulting the Society as a legal adviser.
(ii) The Society, in pursuance of the complainant entered into correspondence with the solicitor. In the course of this correspondence the solicitor answered the complaints and in doing so of necessity divulged the nature of his professional dealings with the complainant. The letters written by him are not covered by legal professional privilege enjoyed by the complainants in their dealings with the solicitor as they do not form part of the conduct of the legal affairs of the complainant or the advise given by the solicitor.
(iii) In answering the complainant the solicitor has in some case forwarded copies of correspondence which he had with third parties on behalf of his client. Again, it seems to me that these documents are not privileged (see Smurfit Paribas Bank Ltd. v-...
To continue reading
Request your trial
-
Ryanair Ltd v Van Zwol
...that the plaintiffs have sought to place on the observation of Costello J. in Buckley v. The Incorporated Law Society of Ireland [1994] 2 I.R. 44, when considering the potential chilling effect of disclosure in relation to the defendant - though the “chilling” point was something of a secon......