McMahon v Irish Aviation Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 28 April 2016
• Neutral Citation: [2016] IEHC 221
• Court: High Court
• Docket Number: [2014 No. 8104 P.]
• Date: 28 April 2016

[2016] IEHC 221

THE HIGH COURT

Barr J.

[2014 No. 8104 P.]

BETWEEN

PAUL MCMAHON

PLAINTIFF

AND

IRISH AVIATION AUTHORITY

DEFENDANT

Tort – Damages & Restitution – Defamation – Discovery of documents – Legal professional privilege

Facts: The plaintiff had instituted an action for damages against the defendant for publishing certain defamatory statements in a report issued by the defendant. Following the grant of an order by the High Court for discovery of documents in the said action, the plaintiff now challenged the assertion of legal privilege by the defendant over certain categories of documents. The defendant contended that the concerned documents consisted of confidential communication made in the course of seeking professional legal advice, and thus, the contents of those documents could not be revealed. The plaintiff asserted that the disclosure of information was necessary for advancing the plaintiff's claim.

Mr. Justice Barr granted an order for the discovery of certain categories of documents while refusing to make an order for revealing the identity of other documents. The Court held that the party claiming entitlement of professional legal privilege over documents had the onus to prove that there were communications with the lawyer and that those communications were made in confidence either to or by a lawyer during the course of a professional legal relationship for the purpose of giving or receiving legal advice. The Court found that in cases where there were extensive dealings between a client and its solicitor, the series of e-mails received would constitute the legally privileged documents. The Court found that the documents consisting of a chain of e-mails between the external counsel, in-house counsel and briefing of internal staff on the legal advice received would all attract legal professional privilege.

RULING of Mr. Justice Barr delivered on the 28th day of April, 2016

Background

1 In this action, the plaintiff seeks damages for defamation in respect of statements contained in a report issued by the defendant on 18th August, 2014, arising out of an investigation into an incident where a parachutist was injured when he landed outside the designated drop zone. There is some dispute between the parties as to whether the report was a draft report or a final report. The court does not have to resolve that dispute in this application.

2 On 8th February, 2016, an order for discovery was made by this court, directing the defendant to make discovery of four categories of documentation. An affidavit of discovery was duly sworn by Mr. Niall Cummins on behalf of the defendant, on 5th April, 2016.

3 In the second part of the First Schedule to the affidavit of discovery, a number of documents were listed over which the defendant has asserted legal professional privilege. It is alleged that these documents relate to legal advice being sought and obtained by the defendant from its advising solicitors. A number of the documents related to communications between the officials within the defendant, who were part of the investigation team and the in-house solicitor employed by the defendant. In total, privilege was claimed over 88 documents.

4 In this application, the plaintiff has challenged the assertion of privilege in respect of 39 documents listed in the second part of the First Schedule. The plaintiff's application was based on the affidavits sworn by his solicitor, Mr Johnston. He averred that the documents withheld on the pretext of legal privilege, will show the true intentions of the defendant and have been deliberately withheld for this reason. It was submitted that the documents referred to under the heading ‘professional communication of a privileged nature’, are not privileged communications or instructions going between the defendant and their solicitors. The plaintiff's solicitor stated that the documents should be disclosed in order to determine if they formed part of a safety investigation concerning the plaintiff, or to determine if the defendant's inclusion of such documents in its affidavit of discovery under privilege, was an attempt to cover up the fact that no such investigation concerning the plaintiff took place after 25th July, 2013.

5 The plaintiff's solicitor stated that discovery of the relevant documents was necessary and was a critical aspect of the plaintiff's case. It was submitted that it was clear from Mr Cummins's affidavit of discovery on behalf of the defendant, that the claim of privilege was an exercise in frustrating the plaintiff and the court. Mr Johnston stated that the affidavit disclosed no new documentation, but claimed privilege in respect of internal communications between investigating officers. It was submitted that the plaintiff needs to determine if these documents formed part of a safety investigation or part of a contrived cover-up where no proper investigation, took place.

6 The plaintiff has therefore asked the court to view these documents and to rule on whether or not privilege has been correctly claimed in respect of them.

The Law

7 There was no great dispute between the parties as to the legal principles which are to be applied where a claim of legal professional privilege has been raised by a party. The right of a party to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice is well established. In Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 I.R. 469, Finlay C.J. stated as follows at p. 478:-

‘Where a person seeks or obtains legal advice there are good reasons to believe that he necessarily enters the area of potential litigation. The necessity to obtain legal advice would in broad terms appear to envisage the possibility of a legal challenge or query as to the correctness or effectiveness of some step which a person is contemplating. Whether such query or challenge develops or not, it is clear that a person is then entering the area of possible litigation.

Having regard to those considerations I accept that where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client.’

8 It was submitted by the defendant that the essence of the claim of privilege was to assist in the important role of ensuring the proper administration of justice. It requires the litigant to be free to communicate with his or her legal advisers and to seek expert evidence from third parties to assess his or her position. See judgment of McCracken J. in Fyffes plc v. DCC plc [2005] 1 I.R. 59.

9 This view was endorsed by Laffoy J. in Martin v. Legal Aid Board [2007] 2 I.R. 759, where she stated as follows at para. 34 of the judgment:-

‘What the judgment of Finlay C.J. illustrates is that in this jurisdiction the existence and the definition of the parameters of legal professional privilege is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice. It also identifies the nature of such requirement, which is the underlying rationale of the privilege - that the client should not be inhibited in the conduct of litigation or in obtaining legal advice by forced disclosure of communications and advice. Such inhibition might lead to the client not being “able to make a clean breast of it” (per Jessel M.R. in Anderson v. Bank of British Colombia (1876) 2 Ch. D. 644 at p. 649), or holding “back half the truth” (per Lord Taylor of Gosforth in R. v. Derby Magistrates' Court; Ex parte B [1996] 1 A.C. 487 (at p. 507)), or even tempt a client's counsel “to forgo conscientiously investigating his own case” until “the eve of or during the trial” (per O'Leary J. in Ottowa-Carlton (Regional Municipality) v. Consumers Gas Company (1990) 74 D.L.R. (4th) 742 at p. 748, or constitute “a prohibition upon professional advice and assistance” (per the United States Supreme Court in Connecticut Mutual Insurance Company v. Schaefer (1876) 94 U.S. 457). It is to obviate such outcomes, which would undermine the proper, fair and efficient administration of justice, that legal professional privilege exists and has been elevated beyond a mere rule of evidence to “a fundamental condition on which the administration of justice as a whole rests” (per Kelly J. in Miley v. Flood [2001] 2 I.R. 50 at p. 65).’

10 The defendant also referred to the judgment of Smyth J. in Shell E. & P. Ireland Limited v. McGrath (No. 2) [2007] 2 I.R. 574, where the learned judge described the rational for the existence of the privilege:-

‘The rationale for legal professional privilege is to ensure that a client may fully instruct his lawyer freely and openly safe in the knowledge that what he says to his lawyer in confidence will never be revealed without his consent.’

11 The learned judge stated that the interest of the client in maintaining the privilege was based on the twofold argument that, firstly the client has an interest in maintaining the confidentiality of the communication but, also, an interest in not having the document used against him in the proceedings, in the event that the privilege is lost or impaired.

12 The defendant accepted that the individual or entities seeking to invoke the privilege, bore the burden of establishing that the document or information sought to be disclosed consisted of a confidential communication made in the course of a professional legal relationship for the purpose of giving or receiving legal advice. It was submitted that the first element of this is that there must be a...