Colston v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 28 February 2019
• Neutral Citation: [2019] IECA 59
• Date: 28 February 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 59 Record Number: 2018/300

2019 IECA 59

THE COURT OF APPEAL

Irvine J.

Peart J.

Irvine J.

McGovern J.

Neutral Citation Number: [2019] IECA 59

Record Number: 2018/300

BETWEEN/

CHARMAINE COLSTON

PLAINTIFF/RESPONDENT

- AND -

DUNNES STORES

DEFENDANT/APPELLANT

Disclosure – Privilege – Discovery – Respondent seeking disclosure of certain documents over which privilege had been claimed in an affidavit of discovery – Whether the appellant had discharged the burden of proving its claim for litigation privilege over the documents

Facts: The High Court (McDonald J), on the 9th July 2018, directed the defendant/appellant, Dunnes Stores, to disclose to the plaintiff/respondent, Ms Colston, within three weeks, certain documents over which privilege had been claimed in an affidavit of discovery sworn by Mr Downey, Store Manager, on the 9th June 2016. Dunnes appealed to the Court of Appeal against that High Court order. The proceedings arose out of an incident which was alleged to have taken place on the premises of Dunnes at Green Road, Portlaoise, Co. Laois, on the 7th April 2013, where Ms Colston claimed to have suffered significant injuries to her low back, sacrum and coccyx as a result of a fall which she maintained occurred as a result of her shoe becoming snagged or trapped in the flooring.

Held by Irvine J that the High Court judge was correct as a matter of law and fact when he determined that Dunnes had not discharged the burden of proving its claim for litigation privilege over the documents set out in the First Part of the First Schedule to the affidavit of Mr Downey of the 9th June 2016.

Irvine J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 28th day of February 2019

1 This is an appeal brought by Dunnes Stores (‘Dunnes’) against an order of the High Court (McDonald J.) of the 9th July 2018.

2 By his order the High Court judge directed Dunnes to disclose to the plaintiff, Ms. Charmaine Colston, within three weeks, certain documents over which privilege had been claimed in an affidavit of discovery sworn by Mr. James Downey on the 9th June 2016.

Background Facts

3 These proceedings arise out of an incident which is alleged to have taken place on the premises of Dunnes at Green Road, Portlaoise, Co. Laois, on the 7th April 2013.

4 Ms. Colston claims to have suffered significant injuries to her low back, sacrum and coccyx as a result of a fall which she maintains occurred as a result of her shoe becoming snagged or trapped in the flooring.

5 A letter of claim was received by Dunnes some four days after Ms. Colston's fall, following which proceedings were commenced by personal injury summons dated the 31st January 2014. In her summons Ms. Colston claims that the floor was defective and had not been inspected or maintained in accordance with the obligations of Dunnes qua occupier.

6 A full defence denying liability was delivered on the 1st July 2014. In particular, it is denied that Ms. Colston's shoe became trapped in the manner alleged, in addition to which a plea of contributory negligence is made. The basis of this plea is that if there was a hazard on its premises, which Dunnes denies, then Ms. Colston was negligent in failing to avoid it.

7 On the 12th January 2015, the High Court (O'Malley J.) ordered Dunnes to make discovery on oath of several categories of documents. These categories included floor maintenance records, documents relating to the repair of the floor, complaints concerning the flooring, the risk assessment in respect of the use of the floor and all CCTV footage of the relevant area on the date of the accident.

8 In his affidavit of discovery sworn on the 9th June 2016, Mr. James Downey, Store Manager, discovered, in the First Part of the First Schedule, what is described as the ‘Dunnes Stores Group Accident Report Form’. However, in the Second Part of the First Schedule he claimed privilege over the statements made by the four persons therein identified as well as what is described as an ‘Internal Investigation Form’. He did so on the basis of what was stated by him at paras. 3 and 5 of his affidavit which read as follows:–

‘3. I say that the defendant claims privilege over the statements set out in the First Schedule Second Part herein on the basis that the same were prepared in contemplation of legal proceedings.

5 I say, believe and am advised that the defendants object to producing the said documents set forth in the Second Part of the said First Schedule hereto on the grounds that the same were created in the course of, and for the purpose of, the defence of the within proceedings.’

9 The privilege claimed by Mr. Downey over the documents identified in the Second Part of the First Schedule was challenged by Ms. Colston by way of an application for inspection of the documents over which privilege had been claimed and her application was grounded upon the affidavit of her solicitor, Mr. Denis O'Mahony, sworn on the 29th May 2017.

10 In his affidavit Mr. O'Mahony referred to the five documents in respect of which privilege had been claimed, and noted that the dates of those documents had not been identified. He was, however, later advised that all of the privileged documents were dated the 7th April 2013, that being the date of the accident.

11 Mr. O'Mahony referred to his correspondence with the solicitors on record for Dunnes, wherein he had questioned how, not having been notified of any claim, Dunnes could maintain that the documentation in respect of which privilege had been claimed could be deemed to have been created in contemplation of litigation. Quite properly, he also advised the Court that the said solicitors had made known to him that each of the four statements over which privilege was claimed bore the headline ‘privileged and private for the use of Dunnes Stores and/or their legal advisors’ and that the Internal Investigation Form, the remaining document over which privilege was maintained, was headed ‘Internal Investigation in respect of incident which it is contemplated may become the subject of legal proceedings/privileged and private for the use of the Company and their advisors and underwriters’.

12 No replying affidavit was filed by Dunnes for the purposes of elaborating on the averments contained in Mr. Downey's affidavit of discovery. However, the High Court judge was given copies of the documents in respect of which privilege was claimed.

13 Having considered the evidence before him and the submissions of counsel, the High Court judge made an order permitting Ms. Colston to inspect the documents over which privilege had been claimed. It is against that order that Dunnes now appeals.

The Appeal

14 For the purposes of adjudicating upon the appeal, this Court, in addition to the documentation and evidence that was before the High Court judge, has been furnished with a transcript of the ruling of the High Court judge and detailed written submissions from both parties.

The Judgment of the High Court

15 The principal reasons given by the High Court judge for rejecting the privilege claimed were as follows:-

(i) the onus was on the party claiming privilege to demonstrate that the dominant purpose for which the documents had been created was apprehended litigation and this had to be established on the basis of evidence. In the present case no affidavit had been sworn by Dunnes explaining how the documents in respect of which privilege was claimed had come into being;

(ii) whilst the documents in respect of which privilege had been claimed were ‘documents of a kind to which privilege might well attach in certain circumstances’, from his examination of their content he was satisfied that they could also have been created for an alternative purpose than apprehended litigation. He referred in this regard to a Health and Safety Authority form mentioned in the document entitled ‘Internal Investigation in respect of incident which is contemplated may become the subject of legal proceedings’ and to the possibility that the documents concerned might also have had a purpose in the context of a possible workplace investigation or an investigation by the Health and Safety Authority;

(iii) it was to be inferred from the fact that the Internal Investigation Form referred to the possibility that the incident therein described might later become the subject matter of legal proceedings that the form might also have been relevant for some other purpose. He emphasised the use of the word ‘may’ in the heading of the said form; and

(iv) as no replying affidavit had been filed by Dunnes, it had failed to demonstrate that the dominant purpose for which the privileged documents had been created was apprehended litigation. He questioned whether anybody in Dunnes could have formed the view on the day of the incident that litigation was reasonably apprehended. Additionally, if it was to be asserted that Dunnes apprehended litigation as of the date of the accident, that should have been set out on affidavit.

Discussion

A Preliminary Matter

16 Before considering the substance of the appeal, I consider it only fair to record that Ms. Colston contends that the arguments advanced by Dunnes in its oral submissions on the appeal are not those that were made on its behalf in the High Court. Mr. O'Donnell BL, maintains that at first instance, counsel then acting for Dunnes, when challenged as to how documents that had come into being on the date of the accident could have been created in apprehension of litigation, had sought to bolster Mr. Downey's affidavit by advising the Court that his client had a policy to treat every incident, wherein injury had occurred, as an event in respect of which litigation was to be apprehended. In response, to this objection, neither Mr. Leonard S.C. nor Mr. Martin B.L., who represented Dunnes on the appeal, were in a position to gainsay this...