McMullen v Kennedy

Court:Supreme Court
Docket Number:Appeal No. 244/2007
Judge:Macken J., Mr. Justice Fennelly
Judgment Date:17 Dec 2008
Jurisdiction:Ireland
Neutral Citation:[2008] IESC 69

[2008] IESC 69

THE SUPREME COURT

Fennelly, J.

Kearns, J.

Macken, J.

Appeal No. 244/2007
Cross Appeal No. 244/2007
244&249/2007
McMullen v Giles J Kennedy & Co Solicitors

BETWEEN

MICHAEL COLIN MCMULLEN
Plaintiff/Appellant

And

GILES J KENNEDY PRACTISING AS GILES J KENNEDY AND COMPANY SOLICITORS
Defendant/Respondent

MCMULLEN v CLANCY (NO 2) 2005 2 IR 445

SMURFIT PARIBAS BANK LTD v AAB EXPORT FINANCE LTD 1990 1 IR 469 1989/3/730

FYFFES PLC v DCC PLC & ORS 2005 1 IR 59 2005/26/5447 2005 1 ILRM 357

PARAGON FINANCE PLC (FORMERLY NATIONAL HOMELOANS CORP PLC) & ORS v FRESHFIELDS (A FIRM) 1999 1 WLR 1183

CRAWFORD & HOGAN v TREACY & ORS 1999 2 IR 171 1998/14/5102

MURPHY v MIN FOR DEFENCE 1991 IR 161

MURPHY v KERWIN 1993 3 IR 501 1994 1 ILRM 293 1993/13/4106

BULA LTD (IN RECEIVERSHIP) & ORS v CROWLEY & ORS 1994 2 IR 54 1994 1 ILRM 495 1993/10/3096

MURPHY v DUBLIN CORP 1972 IR 215 1973 107 ILTR 65

LOGUE v REDMOND & KEALY 1999 2 ILRM 498 1999/16/4778

MCDONALD v RTE & ORS 2001 1 IR 355 2001 2 ILRM 1 2003/40/9555

PRACTICE & PROCEDURE

Discovery

Legal professional privilege - Inspection of documents - Previous negligence claim against former solicitors - Dispute regarding terms of settlement - Claim that solicitor influenced counsel to give evidence in defence of negligence claim - Whether privilege belonged to former clients as opposed to solicitor - Whether evidence in support of contention that counsel induced to give evidence - Exception against legal professional privilege - Whether balance of public interest and disclosure outweighed maintenance of privilege - Court inspection of documents - Whether relevant material which should be disclosed - McMullen v McGinley [2005] IESC 10, [2005] 2 IR 445, Smurfit Paribas v AAB Export Finance [1990] 1 IR 469, Fyffes plc v DCC plc [2005] IEHC 3, [2005] 1 IR 59, Paragon Finance v Freshfields [1999] 1 WLR 1183, Crawford v Treacy [1999] 2 IR 171, Murphy v Minister for Defence [1991] IR 161, Murphy v Kirwan [1993] 3 IR 501, Bula Ltd v Crowley (No 2) [1994] 2 IR 54, Murphy v Corporation of Dublin [1972] IR 215, Logue v Redmond [1999] 2 ILRM 498 and McDonald v RTE [2001] IR 355 considered - Appeal allowed and inspection ordered (244/2007 & 249/2007 - SC - 17/12/2008) [2008] IESC 69

McMullen v Kennedy

244/2007 & 249/2007 - Fennelly Macken [Kearns concurring with Macken] - Supreme - 17/12/2008 - 2008 38 8218 2008 IESC 69

Facts: An appeal lay from a judgment of the High Court refusing an application of the appellant for inspection of documents discovered in the second part of the first schedule of discovery over which legal professional privilege was claimed. The litigation related to a long-running saga between the plaintiff and various legal representatives. The appellant failed in an action against his former solicitor and his former counsel. The appellant had alleged that an agreement had been reached to procure the giving of false evidence against him and that the defendant had improperly sought to influence the outcome of a negligence action in respect of evidence as to an error in a settlement document. The High Court held that no basis for fraud or illegality had been established.

Held by the Supreme Court per Macken J. (Kearns J. concurring; Fennelly J. dissenting), that the allegation made on its face was a very serious one. It would be injurious to the interests of justice to permit legal professional privilege to be applied in such circumstances so as to prevent proper disclosure. It was not appropriate that the entire schedule of the documents should be disclosed. It would be premature to consider the position until the court had reviewed the documents. No estoppel arose having regard to the circumstances of the proceedings. The Court would be furnished with documents to decide which ones would be appropriate to be disclosed, considering: (a) documents generated at a date approximating the making of a particular document (No. 174); (b) documents generated immediately before or during the High Court hearing and (c) documents reviewed by the High Court judge. Per Fennelly J. (dissenting) The appellant had not been able to invoke relevant evidence to support the assertions made. The appeal would be dismissed.

Reporter: E.F.

JUDGMENT of
Mr. Justice Fennelly
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delivered the 17th day of December, 2008.

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1. This is an appeal from a judgment of Murphy J in the High Court refusing the application of the appellant for inspection of documents discovered in the second part of the first schedule of discovery, in respect of which legal professional privilege is claimed.

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2. This matter occurs in the context of a long-running saga of litigation involving the plaintiff and a number of other parties including two firms of solicitors and a barrister (since deceased). The history of that litigation can be found in my judgment inMcMullen v McGinley [2005] 2 I.R. 445. Macken J also outlines it in some detail in the judgment she is about to deliver.

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3. In the present proceedings the appellant sues a firm of solicitors, Giles J Kennedy & Co (hereinafter "the defendant"). The action, as is explained in the statement of claim, arises out of an action for damages for negligence brought by the appellant against his former solicitors, Kent, Carty & Co. The appellant's complaint in that action was that he had been led to accept a settlement of earlier litigation on the understanding that, if dissatisfied, he could resume and continue with the action. The settlement provided for "liberty to apply." When he sought to re-enter the proceedings, it was held that this did not give him "liberty to re-enter."

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4. The plaintiff failed in the action against the solicitors, who had acted for him at the time of the settlement, Kent, Carty & Co. Carroll J held that the solicitors had not been at fault. Rather, they had relied on counsel, the late Mr Noel Clancy. Mr Clancy gave evidence in the action on behalf of Kent, Carty & Co and accepted responsibility. The decision of Carroll J was upheld by this Court on appeal.

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5. The plaintiff's subsequent action against Mr Clancy also failed for reasons given in the judgment of this Court inMcMullen v McGinley, cited above.

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6. The defendant acted for Kent, Carty & Co in their defence of the negligence claim against them. In the course of his handling of the claim, he made a report in the form of a letter dated 17th] May, 1989 to the underwriters. That letter, which ran to seven pages, contained a paragraph which is the essence of the plaintiff's claim in the present proceedings. It reads as follows:

"On Friday, the 28th] April, 1989, our Mr. Kennedy took the opportunity to have an unofficial without prejudice word with Mr Clancy. He advised Mr Clancy as to what was happening to assess Mr Clancy's attitude. Mr Clancy advised that as far as he was concerned, the claimant did quite well and he would be in a position to give evidence that the claimant was advised of the situation. We were aware, at the time of our discussion, that Mr Clancy was acting for the claimant instructed by Messrs. O'Connors in respect of a rather serious motor accident. Accordingly, it would appear as if Mr Clancy may still have some influence over the claimant. As a tactic, we indicated to Mr

Clancy that our client, the insured herein, wished to join him in the proceedings and we were not keen to do so. This 'little chat' might provide an opportunity and incentive to Mr Clancy to dissuade the claimant."

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7. The circumstances in which that letter, a communication between a solicitor and his client's underwriters, came to be disclosed to the plaintiff are explained in my judgment inMcMullen v McGinley. In essence, it formed part of a file of papers handed in to court by counsel in the course of the hearing before McGuinness J of the plaintiff's action against Mr Clancy. The letter was not read by the judge and was not part of the evidence in those proceedings. The file of which it had become part was handed in error to the appellant at the end of the hearing. The appellant sought to introduce it into evidence on the hearing of the appeal in that case. That application was refused for reasons explained in my judgment in that case.

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8. In his statement of claim in the present action, the appellant refers to that letter and quotes the above paragraph. He goes on to plead that the defendant "never varied the tryst he had obtained from Mr Clancy…" He refers to a statement of counsel for Kent Carty & Co in this Court at the hearing of the appeal in that case that "he doubted if he could have succeeded in resisting the complaint of [the appellant] without the evidence of Mr Clancy." The statement of claim describes the letter from the defendant as "graphic and disturbing." The plaintiff seeks:

"A declaration that contrary to Law, Natural Justice and the Right of Access to the Courts The Defendant acted improperly in putting to the Plaintiff's Counsel "Incentives" to ensure by underhand, deceitful and coercive means that the said Counsel, Mr Clancy, complied in the giving of privileged testimony against his Lay Client, The Plaintiff, herein (whether or not the said Evidence is deemed to have been true)."

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9. The plaintiff also claims damages under a number of headings:

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a a. Unlawful and improper interference in the just resolution of a of a well set out claim in Negligence in a matter which in normal circumstances is well within the day to day knowledge of a qualified practitioner.

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b b. Damages and or punitive Damages for engaging in improper manipulation of Evidence which should not have been given in the manner in which it was or not at all, to the complete detriment of the Plaintiff and the due and apposite resolution of a Civil Claim in Negligence.

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c c. Damages for entering into a conspiracy which as an Officer of the Court and a Practitioner of Law and as an...

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