M.F.M. v P.W. (Legal professional privilege)

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 22 June 2001
• Neutral Citation: [2001] IEHC 122
• Docket Number: [1997 No. 2758P]
• Court: High Court
• Date: 22 June 2001

[2001] IEHC 122

THE HIGH COURT

No. 2758P/1997

M (M F) v. W (P)

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PROCEEDS OF CRIME ACT, 1996

BETWEEN

M.F.M

PLAINTIFF/APPLICANT

AND

P.W.

DEFENDANT/RESPONDENT

Citations:

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

NORDON V DEFRIES 1882 8 QBD 508

NORDON V NORDON

BRAY ON DISCOVERY

LAMBERT V HOME 1914 3 KB 86

LYELL V KENNEDY 23 CHD 387

AINSWORTH V WILDING 1900 2 CH 315

WORSWICK, RE: ROBSON V WORSWICK 1888 33 CHD 370

NICHOLL V JONES LR 3 EQ 696

RAWSTONE V PRESTON CORPORATION 1885 30 CHD 116

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Legal professional privilege - Solicitors - Notes made during the course of litigation - Whether attendance notes covered by legal professional privilege - Whether shorthand notes enjoyed claim of privilege - Whether court should examine document to determine extent of disclosure (1997/2758P - Finnegan J - 22/6/01)

M (MF) v W (P) - [2001] 3 IR 462

The proceedings concerned the status of notes made by the plaintiff's solicitors during the course of court proceedings. The plaintiff claimed that the attendance notes were prepared in the course of legal proceedings and were covered by legal professional privilege . Finnegan J was satisfied that the solicitor's note of the evidence and proceedings was not privileged. Insofar as it contained other material designed to assist the plaintiff in the prosecution of the action it was privileged. The court proposed to examine the note to determine the extent that it should be disclosed upon inspection. The learned judge also stated that in general it was not likely that in the course of proceedings, unlike the instant proceedings, which would normally run without interruption the court would lightly exercise it's discretion and order such a discovery.

1 JUDGMENT of Finnegan J. delivered on the 22nd day of June, 2001.

2 This matter came of for hearing before Mr. Justice Moriarty of the 23rd June, 1997 but the hearing thereof was not completed. Because of his Tribunal commitments great delay would be experienced if the completion of the matter should be delayed until he is available. In these circumstances the Plaintiff wishes to have the hearing recommenced before another judge.

3 The Plaintiff obtained an Order for Discovery from Mr. Justice O'Sullivan on the 9th March, 2001 in the following terms:-

"It is ordered that the Plaintiff do make discovery on oath within two weeks from the date hereof of any notes in his possession or power taken by Solicitor or Counsel of the evidence under the proceedings herein heard by Mr. Justice Moriarty on the 23rd day of June, 1997 - the Affidavit on behalf of the Plaintiff to be sworn by Francis Cassidy."

4 Pursuant to that order Francis Cassidy swore an Affidavit of Discovery on the 3rd April, 2001. The relevant notes are listed in the Schedule Part II thereof in the following terms:-

"Attendance Notes of proceedings and evidence tendered before Mr. Justice Moriarty in the above entitled proceedings on the 23rd June, 1997."

5 The Plaintiff claims that the notes are covered by legal professional privilege. The Affidavit of Discovery contains in paragraphs 4, 5 and 6 thereof the following averments relevant to the issue of privilege:-

6 2 "4. The document constitutes my hand written attendance of the 23rd June, 1997. As such it contains references to personal attendances, Court Orders, evidence, personal notes etc.. I do not have the skill of a stenographer and this document does not purport to be, nor was it ever intended to be, a transcript of evidence taken before the Court. I am satisfied that while it does record much of the evidence taken it also misses much of it. Furthermore, many of the sentences are incomplete and, at this remove, I find it difficult to interpret.

7 5. It was prepared by me not simply in contemplation of legal proceedings, but in the course of these legal proceedings, so that I could draw to the attention both of my Counsel and my client certain elements of the evidence for discussion, advice and highlighting. The document includes comments, marks and notes specially for the purpose of drawing the attention of certain points both to Counsel and my clients. It was prepared specifically with my function as Solicitor to the Plaintiff in mind and to assist me in its execution.

8 6. The Plaintiff claims privilege over the documents as it is of material prepared by the said Solicitor for the purpose of giving legal advice in the course of these proceedings. The Plaintiff asserts that the notes in the Schedule hereto are covered by legal professional privilege."

9 The sole issue before me is whether the Plaintiff is entitled to claim legal professional privilege in respect of the documents discovered in the Schedule Part II to the Affidavit of Discovery.

10 While no authority other than Smurfit Paribas Bank Limited -v- A.A.B. Export Finance Limited (1990) 1 IR 469 has been cited to me, there is a considerable number of reported decisions relevant to the issue here. There are however no decisions directly in point although there are obiter statements which are. Many of the reported decisions relate to the discovery without privilege of a transcript of a shorthand writers note, taken in proceedings in open Court on behalf of a party to those proceedings, in later proceedings to which that party is also a party.

11 In Nordon -v- Defries (1882) 8 QBD 508 the facts were as follows. The Plaintiff had a shorthand note taken of proceedings in an action Nordon -v- Nordonwith a view to it's use in subsequent proceedings in that action but also for the purposes of the action Nordon -v- Defries. Mathew J. at p. 150 said:-

"It is probable in this case that the notes of the evidence were taken as well with a view to ulterior proceedings in the case of Nordon -v- Nordon as for the purpose of this action. If so the notes would seem to have been clearly privileged in that suit, and it is difficult to see why their being privileged in one suit should destroy the privilege in another arising out of the same subject matter. It seems unreasonable that a privilege in each should become a privilege in neither".

12 That decision has been criticised by Bray on discovery at p. 398 and in the majority judgments of Cozens Hardy M.R. and Buckley L.J. in Lambert -v- Home (1914) 3 K.B. 86. That case arose out of a road traffic accident. In two earlier actions arising out of the same accident...