Hansfield Developments and Others v Irish Asphalt Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 17 February 2009
• Neutral Citation: [2009] IEHC 90
• Court: High Court
• Date: 17 February 2009

[2009] IEHC 90

THE HIGH COURT

[No. 4691 P/2007]

Hansfield Developments & Ors v Irish Asphalt & Ors

COMMERCIAL

BETWEEN

HANSFIELD DEVELOPMENTS, VIKING CONSTRUCTION, MENOLLY PROPERTIES AND MENOLLY HOMES

PLAINTIFFS

AND

IRISH ASPHALT LTD., LAGAN HOLDINGS LTD., LAGAN CONSTRUCTION LTD., AND LAGAN CEMENT GROUP LTD. (FORMERLY LAGAN HOLDINGS LTD.)

DEFENDANTS

RSC O.31 r18

RSC O.31 r20(2)

WAUGH v BRITISH RAILWAYS BOARD 1980 AC 521

GRANT v DOWNES 1976 135 CLR 674

SILVER HILL DUCKLING LTD v STEELE 1987 IR 298

BUTTES GAS & OIL v HAMMER (NO.3) 1981 QB 223

MATTHEWS & MALEK DISCLOSURE 2007 3ED PARA 11.60

MOORVIEW DEVELOPMENTS LTD v FIRST ACTIVE PLC UNREP CLARKE 31.7.2008 2008 IEHC 274

PRACTICE AND PROCEDURE

Discovery

Litigation privilege - Discovery of correspondence between plaintiff and body set up under government bond scheme sought - Latter body not a party to litigation - Test to be applied - Dominant purpose of correspondence - Whether "common interest" between plaintiff and government body for purposes of claim of privilege - Whether court should consider if privilege might attach in other litigation - Silver Hill Duckling Ltd v Steele [1987] IR 298 applied; Waugh v British Railways Board [1980] AC 521 approved; Grant v Downes [1976] 135 CLR 674, Buttes Gas and Oil v Hammer (No 3) [1981] QB 223 and Moorview Developments Ltd v First Active Plc [2008] IEHC 274 (Unrep, Clarke j, 31/7/2008) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 31, r 18 - Claim of privilege rejected (2007/4691P - McGovern J - 17/2/2009) [2009] IEHC 90

Hansfield Developments v Irish Asphalt Ltd

Facts: The defendants and respondents sought discovery against a non party appellant of seven categories of documents pursuant to Order 31 Rule 29, Rules of the Superior Courts. The High Court made an order for discovery in respect of three of those categories and the non-party appellant sought to appeal the order. The documents related to inter alia documents in the possession of the non-party appellant as to the alleged presence of pyrite in a particular development and documents as to remediation works carried out. The proceedings related to claims in respect of a development that was alleged to contain unacceptably excessive levels of pyrite and that substantial remediation works were required.

Held by Finnegan J (Kearns & Macken JJ. concurring), that the basis for the seeking of such documents was misconceived. It could not have been said that the parties were present on the committee in these circumstances and thus that the documents in this category were neither relevant nor necessary. The High Court had not provided a reasoned judgment for this matter and the appeal would be allowed and the order for discovery set aside in respect of the three categories.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Brian McGovern delivered on the 17th day of February, 2009

2 1. This an application on behalf of the first named defendant for an order pursuant to Order 31, rule 18 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 first named defendant asks the court to inspect the documents in question for the purpose of deciding as to the validity of the claim to privilege as provided for by Order 31, rule 20(2) of the Rules of the Superior Courts.

3 2. These proceedings arise out of the building of three housing estates in North Dublin commencing in 2002. The houses on the estates were built by the plaintiffs and between the three locations, 681 houses were built. The defendants are sued as the providers of infill or quarry material which was compacted below the concrete floor slabs of the houses in question. It is alleged that the quarry material was defective in that it contained a high level of pyrite which caused the expansion of the infill, causing cracking to the floor slabs and other problems with the houses.

4 3. The plaintiffs are registered with HomeBond. The documents of which inspection is sought comprise correspondence and written communications which have passed between the plaintiffs and the National House Building Guarantee Company Ltd. ( "HomeBond"). HomeBond was set up by the Government to provide structural defect cover for new homes built in Ireland since 1978. Builders are entitled to register as members and purchasers who buy a home where it has been registered under the scheme, obtain certain rights under the terms and conditions of the HomeBond agreement. Under the terms of the agreement, the members warrant to the purchasers and HomeBond that they will attend to any major defects in a dwelling built by them, either by remedying the major defects or, with the agreement of HomeBond, paying the cost of the remedial works to the purchaser. If the member fails to remedy defects, HomeBond can do so and pursue the member/builder.

5 4. I have set out, in broad terms, the structure of the HomeBond scheme as it is of some relevance to the matter I have to determine. In this motion, the only privilege being claimed by the plaintiffs is litigation privilege. The issue of legal advice privilege does not arise. Since the motion was issued, the plaintiffs have agreed to waive privilege in respect of 84 of 316 documents created by HomeBond and 32 of 209 documents received by HomeBond.

6 5. Mr. McDonald S.C. for the respondents to the motion accepts that the onus is on the party claiming privilege to prove that privilege exists. He also accepts that as this is a case in which litigation privilege is claimed, the court must be satisfied that the dominant purpose of the document which has been generated is litigation and not some other purpose. There is, in fact, a significant measure of agreement between counsel on both sides in the motion. The defendants maintain that the claim for privilege is ill founded. HomeBond are not a party to this action and the first named defendant asks how litigation privilege can be claimed over documents authorised by HomeBond and, furthermore, how privilege can attach to documents sent by any of the plaintiffs to a third party, namely, HomeBond. The plaintiffs argue that the applicants in the motion ignore the common...