Bula Ltd v Tara Mines Ltd

• Jurisdiction: Ireland
• Judge: MR JUSTICE FRANCIS MURPHY
• Judgment Date: 28 May 1993
• Neutral Citation: 1993 WJSC-HC 1646
• Court: High Court
• Date: 28 May 1993

1993 WJSC-HC 1646

THE HIGH COURT

No. 10898P/1986

BULA LTD v. TARA MINES LTD

BETWEEN

BULA LIMITED (IN RECEIVERSHIP) AND OTHERS

Plaintiffs

AND

TARA MINES LIMITED AND OTHERS

Defendants

Citations:

RUSH & TOMPKINS LTD V GREATER LONDON COUNCIL & ANOR 1988 3 AER 737

RSC O.36 r24

WHITE BOOK 1988 O.24 r1/2

MITCHELL V DARLEY MAIN COLLIERY CO 1884 CAB & ELL 214

MATTHEWS & MALEK ON DISCOVERY 103 PARA 4.33

Words & Phrases:

CEF

Subject Headings:

PRACTICE: documents

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE HONOURABLE MR JUSTICE FRANCIS MURPHY ON 28TH MAY 1993

2 This is an application by the plaintiffs for an order for further and better discovery to be made by the first fourteen defendants. As counsel for the applicants had occasion on the opening of the Motion to refer to a document which the respondents contended was privileged, a preliminary point arose.

3 On behalf of the applicants it was argued that even if the document was privileged (and this they deny), its existence should have been disclosed by the respondents in the affidavit of discovery sworn by them and, if appropriate, privilege claimed for it in that affidavit.

4 To that argument Counsel on behalf of the respondents replied as follows: that such was the nature of the privilege attaching to the document in question that they were entitled to confidentiality in respect of the very existence of the document. For that proposition reliance was placed on the decision of the House of Lords in Rush & Tompkins Ltd v Greater London Council and Another (1988) 3 AllE.R. 737. In the penultimate paragraph of the speech of Lord Griffiths he expressed his conclusion and, indeed, that of the House in the following terms:

"I have come to the conclusion that the wiser course is to protect without prejudice communications between parties to litigation from production to other parties in the same litigation. In multi-party litigation it is not an infrequent experience that one party takes up an unreasonably intransigent attitude that makes it extremely difficult to settle with him. In such circumstances it would, I think, place a serious fetter on negotiations between other parties if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant. What would in fact happen would be that nothing would be put on paper, but this is in itself a recipe for disaster in difficult negotiations which are far better spelt out with precision in writing."

5 It seems to me that the reliance placed by the respondents on this case was mistaken due, if I may say so, to an ambiguity in the judgment itself. There were in the course of the speech references properly and understandably made to the distinction which had indeed been ignored in inferior courts between discoverability and admissibility and, indeed, to the right to production, and there are passages quoted from different judgments referring to the dis-coverability of privileged communications. But it does seem to me that in the passage which I have read Lord Griffiths stated the position correctly when he referred to the fact that communications which were without prejudice and intended as negotiations for the settlement of litigation were privileged from production. They are the words he used and, in my view, used correctly.

6 I find no basis for the proposition that communications of that nature are privileged from discovery or from inclusion in that part of the affidavit which incorporates documents in respect of which privilege is claimed. In fact, an argument was made on behalf of the respondents to the effect that the production of such highly confidential documents would prejudice the fair trial of an action because the affidavit of discovery was one of the documents properly laid before the court and that it would be wholly improper that the trial judge should be aware of the fact that one or other of the parties was engaged in settlement negotiations. That submission could only be based on a misconception or, more probably, on a correct conception of an improper practice. The affidavit of discovery is not a document which is properly laid...