Byrne & Leahy v Shannon Foynes Port Company and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 07 September 2007
• Neutral Citation: [2007] IEHC 315
• Docket Number: [2006 No. 5953 P]
• Court: High Court
• Date: 07 September 2007

[2007] IEHC 315

THE HIGH COURT

5953 P/[2006]

BYRNE & LEAHY v SHANNON FOYNES PORT COMPANY & MIN FOR TRANSPORT

BETWEEN

BRIAN BYRNE AND MORGAN LEAHY

PLAINTIFFS

AND

SHANNON FOYNES PORT COMPANY AND THE MINISTER FOR TRANSPORT

DEFENDANTS

BRIAMORE MANUFACTURING LTD (IN LIQUIDATION), RE 1986 1 WLR 1429

GUINNESS PEAT PROPERTIES LTD & ANOR v FITZROY ROBINSON PARTNERSHIP 1987 1 WLR 1027

SHELL E & P IRL LTD v MCGRATH UNREP SMYTH 5.12.2006 2006 IEHC 409

HANNIGAN v DPP & SMITHWICK 2001 1 IR 378 2002 1 ILRM 48 2001 11 3156

MATTHEWS & MALEK DISCOVERY 1992 PARA 9.15

NEA KARTERIA MARITIME CO LTD v ATLANTIC & GREAT LAKES STEAMSHIP CORPORATION 1981 COM LR 139

MARUBENI CORPORATION v ALAFOUZOS UNREP 6.11.1986 CA

PRACTICE AND PROCEDURE

Discovery

Privilege - Privileged documents mistakenly disclosed - Privileged documents inspected by other party - Whether privilege waived - Whether solicitor receiving documents realised mistake was made - Whether reasonable solicitor would on balance of probabilities have taken disclosure to have been result of mistake - Whether privileged documents deployed - Whether disclosing party relying on content of mistakenly disclosed privileged documents - Whether plaintiffs entitled to discovery of connected privileged documentation - Re Briamore Manufacturing Ltdd [1986] 1 WLR 1429, Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027, Pizzey v Ford Motor Company [1994] PIQR 15, Shell E & P Ltd v McGrath [2006] IEHC 409 (Unrep, Smyth J, 5/12/2006) and Marubeni Corporation v Alafouzos [1988] CLY 2841 followed; Hannigan v DPP [2001] 1 IR 378 distinguished - Relief refused (2006/5953P - Clarke j - 7/11/2007) [2007] IEHC 315

Byrne v Shannon Foynes Port Co

Documents were included in the First Part of the First Schedule of a discovery affidavit. Documents were included over which no privilege was asserted. The plaintiffs alleged that the inclusion of the documents waived privilege and argued that the documents had been deployed in litigation.

Held by Clarke J. that the test was objectively whether a solicitor receiving the documents would have realised that they had been included by mistake. Here a solicitor would not have concluded that the absence of a claim to privilege was due to error. The documents had not been deployed. It was too late to reverse the inadvertent disclosure of documents and the application for privilege would be refused.

Reporter: E.F

1. Introduction

2 1.1 These proceedings concern a most acrimonious dispute that has arisen in relation to the position of two senior officers of the first named defendant ("Shannon Foynes"). The first named plaintiff ("Mr. Byrne") is the Chief Executive Officer and, as a result of holding that office, a board member of Shannon Foynes. The second named plaintiff ("Mr. Leahy") was, when these proceedings were commenced, a member of the board of Shannon Foynes.

3 1.2 As a result of certain allegations made concerning the manner in which both plaintiffs carried out their respective duties, an inquiry was directed by the board of Shannon Foynes to be conducted by a committee ("the Guilfoyle committee") under the chairmanship of an independent chairperson, a Mr. Michael Guilfoyle. The plaintiffs contend that certain aspects of the manner in which the Guilfoyle Committee was established and has carried out its duties are in breach of law and have sought to restrain any further conduct of the inquiry by that Committee. It should be emphasised that the plaintiffs do not dispute but that the Board is entitled to enquire into the matters concerned. Both plaintiffs maintain that they are entirely innocent of any wrongdoing. Their complaints, which are on the basis of a number of allegations which it is not necessary to detail at this stage, concern the circumstances and manner in which the relevant committee was established and has conducted its business.

4 1.3 The application with which I am currently concerned relates to discovery of documents. However before going on to outline the unusual issues which arise on this application it is necessary to say something about the procedural history of the case to date.

2. Procedural History

2 2.1 The plaintiffs, immediately on issuing proceedings, sought an interlocutory injunction seeking to restrain the continuance of the inquiry then being conducted by the Guilfoyle Committee. I was persuaded that the plaintiffs had made out a case for such an interlocutory injunction and made an order restraining the further conduct of the Guilfoyle Committee pending the trial of the action.

3 2.2 Having regard to the urgency of the issues which involve, as they do, the status of senior officers of Shannon Foynes, I determined that it would be appropriate to case manage the proceedings with a view to seeking to procure an early hearing of the substantive issues which had arisen. While the precise issues which arise in these proceedings are relatively wide ranging it is fair to say that at the heart of the case made by the plaintiffs is a contention that the allegations against them have been manufactured by persons within Shannon Foynes who do not agree with important policy positions which both of the plaintiffs have adopted. It is equally fair to say that that allegation is strenuously denied. The truth or otherwise of such a contention is a matter which could only ever have been determined at the full trial of the action.

4 2.3 It also has to be the subject of comment that the proceedings have been conducted with a significant degree of acrimony by the parties. It would be neither possible nor appropriate for me at this stage to attempt to place any blame for that state of affairs on one or other or both sides. However it is fair to say that a number of the procedural issues which have arisen between the solicitors instructed for the respective parties have been pursued in correspondence which has, by times, been expressed in strong terms even by the standards of contentious litigation. This situation has not, I suspect, been helped by the fact that one of the contentions made in these proceedings by the plaintiffs is that the solicitor dealing with the matter in the firm representing Shannon Foynes (and who had, in that capacity, an involvement in the events giving rise to these proceedings) has a personal bias against Mr. Byrne. The merits, or otherwise, of that contention are, again, a matter that will have to await a full hearing.

5 2.4 The matter has been further complicated by the fact that Mr. Byrne continues to be the subject of ongoing investigation on the part of Shannon Foynes. Despite attempts to arrange for an alternative inquiry into the matters which were the subject of the considerations of the Guilfoyle Committee it has not, as I understand it, proved possible, as of this stage, to make any appropriate arrangements in that regard. In addition, however, further matters have been raised as contentions against Mr. Byrne which have, in the course of this litigation, come to be described as the so called "management concerns". These matters are the subject of ongoing consideration by Shannon Foynes and its agents. It is again contended on the part of Mr. Byrne that the so called management concerns are themselves contrived and lack bona fides. I mention these latter matters for the purpose of noting that, in addition to the ongoing conduct of the existing litigation between the parties, there is a parallel, and equally acrimonious, set of issues being dealt with within the company involving largely the same personnel including the legal advisors on both sides.

6 2.5 Matters have, therefore, been complicated by the fact that the dealings between the parties and their advisors since these proceedings commenced have related not just to the conduct of this litigation but to those additional matters as well. It has, on occasion, been difficult to deal with the case management which arises within the four walls of the existing proceedings without one or other party raising issues concerning that parallel process.

7 2.6 Finally it should be noted, because it is of some relevance to the issues which arise on this discovery motion, that the parties did, apparently, engage in significant discussions with a view to ascertaining whether the differences between the parties could be resolved. Those discussions would appear to have taken place at a time when the dates for the swearing of affidavits of discovery had been fixed. It does appear that, for entirely understandable reasons, the attention of the legal advisors on both sides (and indeed, doubtless, the parties themselves) was directed to those discussions while they were ongoing. It would not, however, appear that any agreement could be reached. It would also appear that the parties agreed on an extended period for the swearing of the relevant affidavits of discovery to reflect the time that had been devoted to those discussions.

Against that background it is now necessary to turn to the legal issues which arise concerning the discovery sworn on behalf of Shannon Foynes.

3. The Issues

2 3.1 The affidavit of discovery on behalf of Shannon Foynes was sworn by its company secretary Frank Lynch and is dated 9th May, 2007. It is clear on the evidence that, as is common practice, the affidavit was drafted by the solicitor having carriage of the proceedings on behalf of Shannon Foynes. It is also manifestly clear that quite a significant number of documents in respect of which privilege could properly have been claimed were included in the First Part of the First Schedule and, therefore, no privilege was claimed in respect of them. The documents include correspondence and emails between solicitors and client and solicitors and counsel which are manifestly connected with the giving of legal...