McMullen v Kennedy

JudgeMr. Justice Roderick Murphy
Judgment Date17 July 2007
Neutral Citation[2007] IEHC 263
CourtHigh Court
Date17 July 2007

[2007] IEHC 263


No. 1628 P/2000



Practice and procedure - Discovery - Privilege - Legal professional privilege - Exceptions to general principles - Allegation of undue influence in pleadings - Whether discovery of privileged documents necessary to ascertain truth - Whether document exempted from legal professional privilege

the Master of the High Court ordered that the defendant make discovery on oath of documents relating to the cause of action which included a claim of undue influence. In the affidavit of discovery, it was claimed on behalf of the defendant that certain of the documents discovered attracted legal professional privilege. The plaintiff applied to the High Court seeking to have the documents over which the privilege was claimed produced to him for inspection.

Held by Mr Justice Murphy in partially acceding to the plaintiff’s application and ordering disclosure of some of the documents over which legal professional privilege was claimed that the party claiming privilege could not resile from a former position adopted of waiving that privilege over a particular document that an exemption from the privilege for legal communications where the communication was injurious to the interests of justice where the balance of public interest and disclosure clearly outweighed that of maintenance of privilege would only arise if the conduct complained of involved some degree of moral turpitude.

Reporter: P.C.


Judgment of Mr. Justice Roderick Murphy the 17th day of July, 2007 .

1. Motion

The applicant's notice of motion, returnable on 26th March, 2007, was heard on 6th June, 2007. The applicant sought full and unimpeded access to the documents recited in the second part of the First Schedule of the respondent's affidavit of discovery sworn on 11th October, 2006, or in the alternative, a direction that the documents be made available to the court and for an order striking out the defence in default. The respondent had objected to produce those documents on the grounds that they consisted of privileged communication between himself, his client, counsel and witnesses in connection with and for the purposes of High Court proceedings 62188/1998 between the applicant and his former solicitors Kent, Carty and Company in May, 1992 (the second proceedings).


The Master's order made 6th July, 2006 required the defendant personally to make discovery on oath of the following documents which then were or had been in his possession or power:


1. The defendant's litigation file in the proceedings when he acted for Kent Carty & Co.


2. The defendant's letter to Admiral Ireland in May, 1989, together with any subsequent correspondence between the defendant and Admiral Ireland concerning the content of some or any follow-up contact between the defendant and Mr. Clancy.


3. Any document recording the communication by the defendant of all or any part of the content of the same letter (whether by letter or conversation) to any person other than Mr. Clancy prior to July, 1999.


4. Any correspondence or memoranda concerning evidence to be adduced on behalf of Kent Carty at the hearing in May, 1992.


The defendant duly made discovery on oath on 11th October, 2006 of 491 documents. Privilege was claimed in respect of documents 162 to 491 which were listed in the second part of the First Schedule.


The applicant's notice of motion does not claim further or better discovery but seeks an order:


a A. Allowing the plaintiff and his witness or witnesses full and unimpeded access to the entire authentic files as per the order of discovery of 6th June, 2006, in particular all of the documents recited in the First Schedule, second part of the affidavit of discovery of the defendant, Mr. Kennedy, sworn on October 11th, 2006 on the compelling grounds set out in the plaintiff's affidavit of March 9th, 2007 attached and the exhibits A to F.


b B. In the alternative, should the court see fit, a direction that the full files, as recited above, be placed in the hands of Mr. Justice Murphy, in order for the court to verify at the very least the outline of the issues as set out in the plenary summons, the statement of claim and the said affidavit of the plaintiff herein.


c C. Should the defendant fail to defer to the court's decision, bearing in mind in particular the censure of the Supreme Court and the 'disturbing evidence' which the plaintiff herewith presents to the court, an order striking out the defence forthwith.


d D. Such further or other orders as this Court shall consider to be meet and just.


e E. The costs of this application.


In the present proceedings the applicant claims undue influence and interference with a principal witness in those proceedings.


Before dealing with the grounding affidavit dated 9th March, 2007, it is instructive to consider the background to the application.

2. Background

Over twenty years ago litigation between the applicant and his lessor was settled. The settlement broke down and the applicant sued his solicitor, Kent Carty & Co., and subsequently, his counsel.


Mr. Clancy S.C., now deceased, was the principal witness in the second proceedings, who, the plaintiff avers, had accepted responsibility in relation to the wording of a settlement consent dated July, 1985 in an action between the plaintiff and his lessor, the Charleville Estate Company (the first proceedings).


The defendant in the present proceedings had acted for and on behalf of Kent Carty & Company (hereinafter Kent Carty & Co.) in the second proceedings.


A third, subsequent action was taken by the applicant against Mr. Clancy S.C. (1995) 8124 P, (the third proceedings).


The second and third proceedings were unsuccessful in the High Court and were appealed together to the Supreme Court. During the course of that Supreme Court appeal a seven-page letter from Giles Kennedy and Co., to their client Admiral Underwriting Agencies (Ireland) Ltd., ("Admiral") the insurers of Kent Carty & Co. dated 17th May, 1989, was produced and, the applicant avers, confirmed his worst fears that pressure and threats had been applied to his then counsel in April, 1989.


In that letter, under the heading of Assessment of negligence/civil liability, reference was made to the specific instructions of the claimant (the applicant in this motion) that he should have an opportunity to re-enter his case should a dispute arise in the implementation of the settlement of the first proceedings. It was alleged that, contrary to instructions, counsel had advised a term in the settlement of liberty to apply rather than liberty to re-enter which, the applicant submitted, had resulted in loss and damage to him when the settlement broke down.

3. Grounding affidavit

The applicant's affidavit, sworn 9th March, 2007, refers to his surprise at Mr. Clancy's appearance as a witness for Kent Carty & Co. in the second proceedings and to the circumstance whereby the letter from the respondent herein to Admiral, dated 17th May, 1989 came into his possession on 3rd September, 1999, relating to the conduct of the respondent in meeting Mr. Clancy.


In his affidavit the applicant exhibited certain transcripts in support of his averment that the Supreme Court had made many comments about the "dubious" nature of the conduct of the defendant, in approaching Mr. Clancy on Friday, 28th April, 1989, "to have an unofficial without prejudice word" with him. The applicant alleges that the Supreme Court censured Mr. Kennedy's conduct as being "undoubtedly illegal".


The transcripts do not appear to substantiate this averment. While Mr. Justice Fennelly at p. 60 of the transcript of 17th December, 2003, had said: "I mean, isn't that pretty dubious …" He had not used the phrase "undoubtedly illegal" at p. 105 of the transcript of the same day. Mr. Justice Fennelly had said that "Mr. Kennedy arguably chose to interfere in that relationship."


Mr. Hayden S.C., instructed by the defendant, appeared in the appeal on behalf of Admiral, the insurers of Kent Carty & Co.


The full extracts of the transcript of 17th December, 2003, exhibited in the applicant's affidavit, are:


Mr. Justice Fennelly: Mr. Hayden, if its true, if what is said in the letter is true, Mr. Kennedy was using two matters: one, the fact that Mr. Clancy was acting for the plaintiff, for Mr. McMullen in a personal injuries action where, as it happened, Mr. Kennedy was also acting for the insurers, and secondly, the possibility of joining Mr. Clancy personally as a third party in the action against the solicitors. These two things, the letter would seem to suggest very clearly, were being deployed in order to put pressure on Mr. Clancy to ask his client to desist from the action. I mean, isn't that pretty dubious, stating, using no stronger words, to a solicitor. Mr. Clancy, in those circumstances, was - his character or his capacity, in those circumstances, was as barrister who had been or was still advising Mr. McMullen.


Mr. Justice Murray: Could it not be capable of constituting an abuse of process?


Mr. Hayden: If Mr. Clancy receives it in the context of the claim against him, then I would entirely agree with you. It would be an issue that was inappropriate.


Mr. Justice Hardiman: Mr. Hayden, look at the last four lines of the fourth last paragraph: "We were aware at the time of our discussions that Mr. Clancy was acting for the Claimant instructed by O'Connor's in respect of a rather serious motor...

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