Hansfield Developments and Others v Irish Asphalt Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 21 September 2009
• Neutral Citation: [2009] IEHC 420
• Court: High Court
• Date: 21 September 2009

Hansfield Developments & Ors v Irish Asphalt Ltd & Ors

COMMERCIAL

Between:

HANSFIELD DEVELOPMENTS, VIKING CONSTRUCTION, MENOLLY PROPERTIES AND MENOLLY HOMES

Plaintiffs

-and-

IRISH ASPHALT LIMITED, LAGAN HOLDINGS LIMITED, LAGAN CONSTRUCTION LIMITED, LAGAN CEMENT GROUP LIMITED (FORMERLY KNOWN AS LAGAN HOLDINGS LIMITED) AND LINSTOCK LIMITED

Defendants

[2009] IEHC 420

[No. 4691P/2007]

THE HIGH COURT

PRACTICE AND PROCEDURE

Discovery

Privilege - Common interest privilege - Waiver - Photographs - Homebond documents - Documents sent to public relations company - Dominant purpose - Internally created summary documents - Sufficient interest - Putative common solicitor requirement - Whether dominant purpose of creation of material litigation related - Whether sufficient common interest between plaintiffs and third party company - Whether requirements that both parties retain same solicitor - Whether disclosure of material to third party constituted waiver of privilege - Whether photographs constituted documents - Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 90 (Unrep, McGovern J, 17/2/10), Ochre Ridge Ltd v Cork Bonded Warehouses Ltd [2004] IEHC 160, Moorview Developments v First Active Plc [2008] IEHC 274 (Unrep, Clarke J, 31/07/2008), Redfern Ltd v O'Mahony [2009] IESC 18 (Unrep, SC, 04/03/2009) and Fyffes v DCC [2005] 1 IR 59 applied; Paragon Finance v Freshfields [1999] I WLR 1183, Lyell v Kennedy (No 3) (1884) 27 ChD and Kershaw v. Whelan [1996] 1 WLR 358 followed; Spotless Group Ltd v Premier Building & Consulting Group Pty Ltd (2006) 16 VR 1 approved; Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1991] 1 IR 469, R v Derby Magistrates' Court Ex parte B [1995] 3 WLR 681, Waugh v British Railways Board [1979] 3 WLR 150, Grant v Downes [1976] 135 CLR 674, Silver Hill Duckling v Steele [1987] IR 298, Anderson v Bank of British Columbia (1876) 2 ChD 644, AG (NT) v Maurice [1986] 161 CLR 475, Three Rivers v Governor and Company of the Bank of England (No 5) [2003] QB 1556, Gallagher v Stanley [1988] 2 IR 267, Goldberg v Mg [1994] 33 NSWLR 639, Formica v Secretary of State (acting by the Export Credits Guarantee Department) [1995] 1 Lloyd's Rep 692, Buttes Gas and Oil Co v Hammer (No 3) [1981] QB 233, Bank of Nova Scotia v Hellenic Mutual War Risk Association [1992] 3 Lloyd's Rep 540, The World Era [1993] I Lloyd's Rep 363, Svenska Handelsbanken v Sun Alliance [1995] 2 Lloyd's Rep 84, Todd v Novotny [1999] WASC 28, Duplan Corporation v Deering Milliken Inc 397 F Supp 1146 considered; Dadourian Group International Inc v Simms [2008] EWCA 1784 (Ch) not followed - Rules of the Superior Courts 1986 (SI 15/1986) O 31 rr 18, 19 and 20 - Claim of common interest privilege upheld, documents sent to public relations company determined not to be privileged (2007/4691P - McKechnie J - 21/9/2009) [2009] IEHC 420

Hansfield Developments v Irish Asphalt Ltd

Facts: The defendants sought an order pursuant to Order 31, rules 18 and 19 of the Rules of the Superior Courts, 1986 requiring the plaintiffs to make available for inspection certain documents over which they claimed privilege. The proceedings related to a dispute regarding infill provided by the defendants to the plaintiffs in the construction of houses in North Dublin. After investigation, the plaintiffs concluded that the problems were due to excessive pyretic content in the infill provided by the defendants. The defendants contended that the material provided by them was not the cause of the defects. The documents challenged were in seven categories, namely, documents passing between the plaintiffs and Helsingor Limited, photographs taken by the plaintiffs as to the state of certain properties, HomeBond documentation, documents provided to a public relations firm, Reputation Inc, certain internal Mennolly spreadsheets and charts, documents and reports provided by the plaintiffs engineer and other miscellaneous documents. All but one category of documents (Helsingor documents) required an assessment as to whether the dominant or primary purpose of their creation was apprehended or threatened litigation and/ or legal advice, whereas the Helsingor documents required assessment as to whether the plaintiffs had a sufficient common interest with Helsingor.

Held by McKechnie J. that the Helsingor documents, photographs, HomeBond documents, internal Mennolly spreadsheets and charts, Golder/DBFL documents, Homeowner correspondence documents and 14 internal Mennolly correspondence documents were privileged. The Reputation Inc documents, the single email of an engineer and the method statements were not privileged and the Court would acceded to the defendants request with regards to those documents and order their production. As to the "common interest", there was no implied waiver of the privilege here, if the Court adopted a broad approach. The photographs were taken with a dominant purpose of litigation. There had been sufficient disclosure of the HomeBond documents. There was no reason why legal advice would be passed through a public relations firm and the Reputation Inc. documents were not privileged. The primary underlying materials contained in the Internal Mennolly documents was already in the possession of the defendants. As to the miscellaneous documents, an email from an engineer was not privileged as an attachment (a report) had already been discovered. The method documents were not created with any legal input and were not privileged.

Reporter: E.F.

RSC O.31 r18

RSC O.31 r19

RSC O.31 r20(2)

HANSFIELD DEVELOPMENTS & ORS v IRISH ASPHALT LTD & ORS UNREP MCGOVERN 17.2.2009 2009 IEHC 90

SMURFIT PARIBAS BANK LTD v AAB EXPORT FINANCE LTD 1990 1 IR 469

FYFFES PLC v DCC PLC & ORS 2005 1 IR 59 2005 1 ILRM 357 2005/26/5447 2005 IESC 3

PARAGON FINANCE PLC v FRESHFIELDS (A FIRM) 1999 1 WLR 1183

R v DERBY MAGISTRATES COURT, EX PARTE B 1995 3 WLR 681 1995 4 AER 526 1996 AC 487

DADOURIAN GROUP INTERNATIONAL INC & ORS v SIMMS & ORS UNREP PATTEN 25.7.2008 2008 EWHC 1784 (CH)

WAUGH v BRITISH RAILWAYS BOARD 1979 3 WLR 150 1979 2 AER 1169 1980 AC 521

GRANT v DOWNS 1975-6 135 CLR 674 1976 HCA 63

SILVER HILL DUCKLING LTD & STEELE v MIN FOR AGRICULTURE & AG 1987 IR 289 1987 ILRM 516 1986/8/1761

ANDERSON v BANK OF BRITISH COLUMBIA 1875-76 2 LR CH D 644

OCHRE RIDGE LTD v CORK BONDED WAREHOUSES LTD & PORT OF CORK CO LTD UNREP LAVAN 3.7.2004 2004/37/8652 2004 IEHC 160

THREE RIVERS DISTRICT COUNCIL & ORS v GOVERNOR & CO OF THE BANK OF ENGLAND (NO 5) 2003 QB 1556 2003 3 WLR 667

GALLAGHER (A MINOR) v STANLEY & NATIONAL MATERNITY HOSPITAL 1998 2 IR 267 1998/7/1906

DESIATNIK LEGAL PROFESSIONAL PRIVILEGE IN AUSTRALIA 2ED 2005

REDFERN LTD v O'MAHONY & ORS UNREP SUPREME 4.3.2009 2009 IESC 18

MATTHEWS & MALEK DISCLOSURE 3ED 2007

GOLDBERG & ORS v NG & ORS 1994 33 NSWLR 639

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & JACKSON UNREP CLARKE 31.7.2008 2008/43/9271 2008 IEHC 274

THANKI & CARPENTER & CUTRESS THE LAW OF PRIVILEGE 2006

FORMICA LTD v SECRETARY OF STATE (ACTING BY THE EXPORT CREDITS GUARANTEE) DEPT 1995 1 LLOYDS 692 1994 CLC 1078

BUTTES GAS & OIL CO v HAMMER & (NO 3) 1981 QB 223 1980 3 WLR 668 1980 3 AER 475

BANK OF NOVA SCOTIA v HELLENIC MUTUAL WAR RISKS ASSOCIATION (BERMUDA) LTD 1992 2 LLOYDS 540

LEIF HOEGH & CO A/S v PETROLSEA INC (THE WORLD ERA) (NO 2) 1993 1 LLOYDS 363

SVENSKA HANDELSBANKEN v SUN ALLIANCE & LONDON INSURANCE PLC 1995 2 LLOYDS 84

TODD & NOVOTNY & ANOR 1999 WASC 28

DUPLAN CORP v DEERING MILLIKEN INC 397 F SUPP 1146

KERSHAW v WHELAN 1996 1 WLR 358 1996 2 AER 404

AG (NT) v MAURICE & ORS 1986 161 CLR 475 1986 HCA 80

LYELL v KENNEDY (NO 3) 1884 27 LR CH D 1

SPOTLESS GROUP LTD & ORS v PREMIER BUILDING & CONSULTING GROUP PTY LTD 2006 16 VR 1 2006 VSCA 201

1 Mr. Justice William M. McKechnie delivered on the 21st day of September 2009

Background

2 1. This is an application on behalf of the first and fifth named defendants (hereinafter the "defendants" or "applicants") for an order pursuant to Order 31, rule 18/19 of the Rules of the Superior Courts, requiring the plaintiffs to make available for inspection certain documents over which they have claimed privilege. In the alternative, the defendants ask the court to inspect the documents in question for the purpose of deciding on the validity of the privilege claim: this as provided for by Order 31, rule 20(2) of the Rules of the Superior Courts.

3 2. These proceedings arise out of a dispute regarding infill provided by the defendants to the plaintiffs in the construction of 681 houses over three housing estates in North Dublin (namely, the Drynam, Beaupark and Myrtle estates). Following construction, problems arose with many of the houses and complaints were made by homeowners in 2005-2006. After an investigation and the production of a report by Trinity College Dublin in January 2007, the plaintiffs concluded that the problems were due to excessive pyritic content in the infill provided by the defendants, which reacted expansively in situ to form gypsum, causing floor heave and cracking in the walls and floors of the properties. The defendants contend that the material provided by them, which was subject to ongoing monitoring and sampling, was not the cause, and that any defects in the houses were in fact due to the negligence and/or contributory negligence of the plaintiffs in the construction thereof. There are other ongoing proceedings also involving the estates in which certain have sued Helsingor Limited and Menolly Homes (see para. 8 infra).

4 3. In the current application the defendants seek a review of the privilege claimed by the plaintiffs in two affidavits sworn by them on 25 ^th June and 7 ^th August of this year. 243 contested documents were identified from the first affidavit of and another 310 documents from the...