Irish Haemophilia Society Ltd v Lindsay & Blood Transfusion Service Board

• Jurisdiction: Ireland
• Judge: Mr Justice Kelly
• Judgment Date: 16 May 2001
• Neutral Citation: [2001] IEHC 240
• Court: High Court
• Docket Number: No 307JR/2001
• Date: 16 May 2001

[2001] IEHC 240

THE HIGH COURT

No 307JR/2001

IRISH HAEMOPHILIA SOCIETY LTD v. LINDSAY & BLOOD TRANSFUSION SERVICE BOARD

JUDICIAL REVIEW

BETWEEN

THE IRISH HAEMOPHILIA SOCIETY LIMITED

APPLICANT

AND

HER HONOUR JUDGE ALISON LINDSAY SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CIRCUMSTANCES OF INFECTION OF PEOPLE WITH HAEMOPHILIA WITH HIV AND HEPATITIS C

RESPONDENT

AND

THE BLOOD TRANSFUSION SERVICE BOARD (NOW KNOWN AS THE IRISH BLOOD TRANSFUSION SERVICE)

NOTICE PARTY

Citations:

G V DPP 1994 1 IR 374

MASS ENERGY LTD V BIRMINGHAM CITY COUNCIL 1994 ENV LR 298

R V COTSWOLD DISTRICT COUNCIL, EX-PARTE BARRINGTON PARISH COUNCIL 1997 75 P&CR 515

GORMAN V MIN FOR ENVIRONMENT UNREP KELLY 7.12.2000

TRIBUNAL OF ENQUIRIES (EVIDENCE) ACT 1921

BULA LTD V CROWLEY 1990 ILRM 756

DUNCAN V PORTLAOISE 1997 1 IR 558

MILEY V FLOOD 2001 1 ILRM 489

BULA LTD V TARA MINES LTD (NO 4) 1991 1 IR 217

SMURFIT PARIBAS BANK LTD V AAB EXPORT FINANCE LTD 1990 ILRM 588

Synopsis

Tribunals of Inquiry

Tribunals of inquiry; evidence; legal professional privilege; applicant seeks leave to apply for judicial review; whether applicant has demonstrated an arguable case that respondent had been wrong in concluding that affidavit of discovery in the form presented had been correct and sufficient to establish legal professional privilege claimed by notice party; whether arguable case that respondent had reversed onus of proof; whether respondent correctly satisfied as to claim to legal professional privilege; whether respondent had been wrong in law and misdirected itself in refusing to carry out an inspection of the documents set forth in affidavit of discovery.

Held: Leave refused; respondent's decision that claim of legal professional privilege made by notice party had been properly made affirmed.

The Irish Haemophilia Society Ltd v. Lindsay - High Court: Kelly J. - 16/05/2001

The applicant (the Society) commenced proceedings to seek leave to apply for judicial review of a ruling made by the respondent upholding a claim of legal professional privilege made by the notice party in respect of certain documents. The documents had been set forth in an affidavit sworn by a doctor giving evidence at the Tribunal. The Tribunal declined to inspect the documents and refused to allow the Society to cross-examine the doctor in question. Mr Justice Kelly held that the applicant had failed to meet the standard required in order for leave to be granted and dismissed the application.

Mr Justice Kelly

1 On Friday last the applicant sought leave to begin judicial review proceedings against the respondent. It did so in respect of a ruling given by the respondent on the 9th May, 2001. That ruling was to the effect that a claim of legal professional privilege made by the notice party in respect of some 611 documents set forth in a schedule to an affidavit of Dr. Emer Lawlor sworn on the 15th March, 2001 had been properly made. Having so held the respondent declined to carry out an inspection of those documents. The respondent furthermore refused to allow counsel for the applicant to cross-examine Dr Lawlor on her affidavit.

2 Having heard the application on Friday last I formed the view that I ought not to decide the matterex parte. I therefore required the applicant to put both the respondent and notice party on notice of the application. That was done and on Monday afternoon last I heard the application inter partes. The application was opposed by both the respondent and the notice party.

3 Even though the application was heardinter partes it was agreed that the onus of proof to be achieved by the applicant was that set forth in the judgment of Finlay C.J. in G. -v- Director of Public Prosecutions [1994] 1 I.R. 374.

4 The relevant extract from the judgment of the Chief Justice is set out at pages 377 – 378 and reads as follows:

"It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-"

5 .....

6 (b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review

7 (c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks …"

8 I therefore proceed to apply that test although there may well be grounds for believing that a higher test is appropriate on an application of this sort when it is madeinter partes. (See the observations of Glidewell L.J. in Mass Energy Limited v Birmingham City Council [1994] Env. L.R. 298; Keene J. inR v Cotswold District Council, ex parte Barrington Parish Council (1997), 75 P. & C.R. 515 and my own observations in Gorman and Others v Minister for the Environment and Local Government and Others (Unreported, High Court, Kelly J., 7th December, 2000).

9 The respondent was set up under the Tribunals of Inquiry (Evidence) Act, 1921 as amended to inquire into matters of serious public concern about the contamination of blood products for administration to haemophiliacs or persons with other blood clotting disorders. It has embarked on this work and has sat for well in excess of 120 days to date.

10 On the 27th November, 1999 the respondent made an order against the notice party directing it to make discovery of documents. In purported compliance with that order the notice party produced an affidavit sworn by Dr Emer Lawlor on the 8th October, 1999. That affidavit purported to make a claim of legal professional privilege in respect of documents described in the second part of the first schedule to it.

11 At the end of January, 2001 the applicant sought further and better discovery. This application was the subject of a ruling by the respondent on the 1st February, 2001. In the course of that ruling the respondent held that the way in which the notice party's claim to legal professional privilege was dealt with in its affidavit did not comply with the directions of the Supreme Court inBula Ltd. v Crowley [1990] I.L.R.M. 756. That view of the respondent was undoubtedly correct. The supplemental affidavit was directed to be sworn in accordance with directions which were given by the respondent as follows:

"I would now like to turn to the second point which is the procedural one, and the manner in which documents over which legal privilege is set out. The case which governs this is Bula v Crowley 1990 Irish Reports. In that decision it is quite clearly set out, the directions as to how documents over which legal privilege is to be claimed must be categorised and enumerated. Of the affidavits of discovery before me, which in my view comply with the directions as set out in the Bula case, these are (sic.) the following:"

12 … The BTSB … The categorisation of documents claiming legal privilege is sufficient in each case, but I now direct they enumerate the relevant documents over which they are claiming privilege.

13 The supplemental section of the affidavit should list all the relevant privileged documents which a party had in its power or possession at the date of the swearing of the original affidavit of discovery and those dates can be gleaned from the schedule attached to this ruling. I direct that the said supplemental affidavit should be furnished to the tribunal within six weeks of today's date".

14 That direction resulted in a supplemental affidavit being sworn by Dr. Lawlor. Insofar as it is relevant it reads:

"4.I object to produce the said documents referred to in the second part of the first schedule hereto on the ground that the said documents were at all times confidential and subject to legal professional privilege ("LPP") because they were brought into being for the dominant purpose of giving/receiving or recording professional legal advice for the purpose of obtaining evidence for actual or contemplated legal proceedings or tribunals of inquiry."

15 The second part of the first schedule contains an individual description of each of the 611 documents over which the claim to legal professional privilege is made. The vast bulk of the documents are letters exchanged between solicitors and client; solicitors and counsel; or solicitors and/or client to experts or witnesses.

16 The applicant was dissatisfied with this affidavit and so a further hearing took place to deal with that matter on the 8th May, 2001. The transcript of that hearing was opened to me in full. It is not necessary to repeat its contents for the purpose of this ruling. Suffice it to say that the claim to legal professional privilege was challenged on a number of bases. It is common case that no evidence was adduced by the applicant in support of the challenge which it sought to make. Extensive legal arguments were, however, made.

17 The respondent gave its decision the next day. Insofar as it is relevant it reads as follows:

"I made a ruling on 1st of February, 2001, in which I criticised enumeration of documents of the BTSB in their affidavit of discovery in the area of professional legal privilege. Having said that I didn't think it was sufficiently enumerated, I did say it was sufficiently categorised. In my view, the affidavit as supplied by Dr. Lawlor does make up for the lack of the original one and it does properly enumerate the documents over which legal professional privilege is claimed. The issue today is as to whether the enumeration is sufficient to allow the Irish Haemophilia Society to assert that the claim for legal professional privilege over a document or documents is not correct."

18 I have...