Legal Privilege Update: Part 3 Of 3

Author:Mr David Kavanagh and Rachel Turner
Profession:Dillon Eustace
 
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This is the final article in our three part series dealing with legal professional privilege (See Parts 1 and Part 2).

Right of parties to choose certain documents

The case of Quinn & ors v. Irish Bank Resolution Corporation & ors [2018] IEHC 481 examined the issue of whether the plaintiffs were entitled to maintain a claim of litigation privilege over some of the documents held by their former solicitors, which were connected or related to the same 'transaction', the subject matter of disclosed privileged documents, or where they are part of a stream of documents, part only of which has been disclosed.

Background

The case concerned an application by Irish Bank Resolution Corporation ("IBRC") seeking an order for further and better discovery against the plaintiffs and an order declaring that the plaintiffs had no valid claim of privilege over all documents relating to Mason, Hayes & Curran solicitors' ("MHC") legal advices. The focus of the application was on whether the plaintiffs were entitled to maintain privilege over documents held by MHC.

The proceedings arise out of claims by the plaintiffs that share pledges and personal guarantees and indemnities executed by them are invalid and unenforceable in respect of certain lending by Anglo Irish Bank to various Quinn Group entities. MHC were initially consulted by the plaintiffs in relation to the commencement of the proceedings before the court but were unable to continue due to a conflict of interest. MHC were in possession of documents which were generated or arose in the context of anticipated litigation. IBRC did not dispute that, for the purposes of the application, ordinarily the documents discovered by MHC, or many of them, may attract a valid claim of privilege.

Discovery Process

The discovery process was somewhat complicated and included non-party discovery by MHC, issues in relation to the privilege claimed over some documents, and the waiver of privilege. Briefly, the plaintiffs made discovery of documents to IBRC but claimed privilege over certain MHC documents. This claim of privilege was challenged by IBRC and they issued a motion requiring the plaintiffs to produce the disputed privilege documents for inspection. The plaintiffs subsequently waived the privilege claimed over the documents and provided these documents to IBRC. Arising from this process (and related proceedings), IBRC's solicitors wrote to the solicitors for the plaintiffs identifying an absence of material...

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