Kerry County Council v Liverpool Salvage Association

• Jurisdiction: Ireland
• Judgment Date: 07 December 1903
• Date: 07 December 1903
• Docket Number: (1903. No. 1657.)
• Court: King's Bench Division (Ireland)

The County Council of Kerry

and

The Liverpool Salvage Association and Thos. Ensor & son (1).

K. B. Div.

Appeal

(1903. No. 1657.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1905.

Practice — Discovery of documents — Privilege — Documents privileged in previous action between third parties — Order XXXI., Rules 12–14.

In an action by the plaintiffs against the defendants, claiming damages arising from the acts of the defendants in causing, during the course of salvage operations, a wrecked vessel to become an obstruction, the defendants, under an order for discovery of documents, stated, on affidavit, that they had in their possession certain documents, consisting of confidential correspondence, reports, &c., obtained or made by them as agents for an Insurance Company, in reference to matters arising in litigation “then anticipated and afterwards instituted” by the owner of the vessel against the said Insurance Company for the purpose of enabling the latter to be advised upon, and to defend, the claim made against them:—

Held, that the defendants were not entitled to exemption from discovery, as the documents would not have been privileged in the earlier action by the shipowner.

Motion on Notice.

The action was brought by the plaintiffs against the defendants to recover damages by reason of the defendants in the month of August, 1900, having stranded a wrecked vessel, the “Harriet Amelia,” near the pier and breakwater of Knightstown, in Valentia Harbour, and thereby caused an obstruction.

In the month of October, 1900, an action was instituted by the owner of the “Harriet Amelia” against the Maritime Insurance Company, as insurers of the vessel, upon a policy of insurance. The defendants in the latter action paid into Court a sum of £160, which was accepted by the plaintiff in full satisfaction of his claim in the action.

The plaintiffs in the present action applied for and obtained

an order for discovery of documents. The affidavit of discovery made under the said order stated that the defendants had in their possession or power the documents relating to the matters in question in the action set forth in the 1st and 2nd schedules thereto, and that they objected to produce the documents set forth in the said 2nd schedule, on the ground that they were by their nature privileged from production. The said documents were described as con fidential correspondence, reports, notes, minutes, and entries, relating to the ‘Harriet Amelia’ between the 22nd August and Sth September, 1900, obtained or made by the Liverpool Salvage Association, and their representatives and servants, as agents for the Maritime Insurance Company, in reference to matters arising in litigation then anticipated, and afterwards instituted, by the owner of the ‘Harriet Amelia’ against the said Insurance Company for the purposes of enabling the said Insurance Company to be advised upon, or defend, the claim made against them.” The said correspondence was contained in a bundle marked ‘A’ and numbered 1–53, and the defendants also objected to produce instructions to counsel, and correspondence between the defendants, the Liverpool Salvage Association, and their solicitor.

The plaintiffs now applied for an order that the defendants should make a further and better discovery of documents

D. B. Sullivan, K.C., and Roche, for the plaintiffs:—

The defendants are not entitled to exemption from discovery of the documents that came into their possession when acting as agents for the Maritime Insurance Company prior to the institution of the action by the shipowner against the insurers. Such documents would not have been privileged in the earlier action; they came into existence prior to the institution of that action, and were not in the nature of legal professional communications. Even if so privileged in the earlier action, such privilege does not attach to the documents in the present action, which is one between new parties, and brought on foot of a distinct cause of action.

W. H. Boyd, for the defendants:—

The documents in respect of which discovery is now sought were clearly privileged in the earlier action; they were brought into existence under a reasonable apprehension of an action, or claim, against the Maritime Insurance Company, and it is therefore immaterial that proceedings had not actually been instituted. That being so, the principle of “once privileged always privileged” applies.

[They cited Bullock v. Corry (1); Goldstone v. Williams, Deacon, & Co. (2); Pearce v. Foster (3): Nordon v. Defries (4); Calcraft v. Guest (5); Minet v. Morgan (6); Collins V. London General Omnibus Co. (7).]

The Court inspected the documents in question.

D. B. Sullivan, K.C., and Roche, for the plaintiffs:—

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