Murphy v Kirwan

CourtSupreme Court
Judgment Date01 January 1994
Date01 January 1994
Docket Number[1992 No. 145 S.C.]
Murphy v. Kirwan
Patrick Murphy
Anthony M.D. Kirwan, Defendant
[1992 No. 145 S.C.]

Supreme Court

Practice - Documents - Discovery - Inspection - Privilege - Legal professional privilege - Defendant counterclaiming for malicious prosecution and abuse of the processes of the court - Whether claim of legal professional privilege capable of being defeated where malicious prosecution and abuse of processes of court alleged - Matters requiring to be established to defeat claim of legal professional privilege in such circumstances - Whether defendant making out sufficient case to defeat claim to privilege.

In response to the plaintiff's claim for specific performance of an agreement, the defendant brought a motion seeking to have the claim dismissed as disclosing no reasonable cause of action and as an abuse of the process of the court. The motion having been dismissed, the defendant filed a defence contending that there had been no concluded agreement and counterclaimed for damages on the grounds that the proceedings were vexatious, frivolous and an abuse of the process of the court, as an attempt to prevent the defendant from performing another agreement. At the trial, the plaintiff's case was dismissed without the defendant going into evidence, and the counterclaim was adjourned.

The defendant subsequently sought discovery of legal advice obtained by the plaintiff relating to the specific performance claim up to the date of the trial. The plaintiff claimed legal professional privilege over communications between himself and his legal advisers. The High Court ordered the plaintiff to produce these documents for inspection by the defendant.

On appeal, the plaintiff contended that the exception to the general rule, that legal advice was privileged, applied only in cases of fraud and certain other dishonest conduct. It was further argued that even if the exception could apply in cases where malicious prosecution and abuse of the process of the court were alleged, the defendant had failed to make out a sufficient case to justify an order for the inspection of such documents. The plaintiff also sought to challenge the relevance of certain documents in his affidavit of discovery over which he had claimed privilege, although this issue had not been raised in the High Court.

Held by the Supreme Court (Finlay C.J. and O'Flaherty J.; Egan J. dissenting), in dismissing the appeal, 1, (Egan J. concurring) that the reason for the introduction of the exception to the general rule that communications between a client and his legal advisers were privileged was that professional privilege could not and must not be applied so as to be injurious to the interests of justice and those in the administration of justice where persons had been guilty of conduct of moral turpitude, even though it might not be fraud.

  • R. v. Cox and Railton (1884) 14 Q.B.D. 153, Williams v. Quebrada Railway, Land and Copper Company[1895] 2 Ch. 751, Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd.[1972] Ch. 553 and Gamlen Chemical Company Ltd. v. Rochem Ltd. and Others [1983] R.P.C. 1 considered.

2. That nothing could be more injurious to the administration of justice than that a person should falsely and maliciously bring an action, or abuse for an ulterior or improper purpose, the processes of the court; and that accordingly, the High Court had been correct to extend the exception to cover allegations of malicious prosecution, where a sufficient case had been made out.

3. That a party seeking to defeat a claim to legal professional privilege by asserting malicious prosecution or abuse of the processes of the court was required:—

  • (a) to establish, though not necessarily as a proof in itself, that the claim as brought by the other party had failed in its entirety or that it was bound to do so;

  • (b) to establish, not necessarily as a proof but possibly as a necessary precondition, that the failure of the other party's claim had not been due to the resolution by the court of trial of a conflict of evidence with regard to primary facts, or due to a special legal defence, such as might arise under the Statute of Frauds;

  • (c) to support the allegations to such an extent that they were, in the view of the court, viable and plausible, although not to prove the allegations as a matter of probability or in accordance with the onus of proof necessary for the total hearing of the action.

(Per Egan J., dissenting) That the standard of proof on a party alleging malicious prosecution or abuse of the processes of the court in order to defeat a claim of legal professional privilege was to establish a prima facie case.

O'Rourke v. Darbishire [1920] A.C. 581 followed; Dorene Ltd. v. Suedes (Ireland) Ltd.[1981] I.R. 312 considered.

4. That the plaintiff should be required to produce the documents in question for inspection in that:—

  • (a) the plaintiff's claim for specific performance had in fact failed completely, and there had been no appeal;

  • (b) the plaintiff's claim had not failed on any special legal issue, and had failed without the defendant going into evidence;

  • (c) that since the plaintiff had never personally on affidavit denied or disputed the very clear and serious allegations of a lack of bona fides, this lent sufficient support to the defendant's contention that there was a sustainable cause of action for malicious prosecution.

(Per Egan J., dissenting) That the failure of the plaintiff's action at the conclusion of his case was very far from being prima facie proof of malice, and that the affidavits were not inconsistent with belief by the plaintiff that he had an enforceable contract, so that the production of the documents for inspection should not be ordered.

5. That since documents should not be included in an affidavit of discovery unless they were relevant, the inclusion of any document in the plaintiff's affidavit of discovery precluded the Court, on appeal, from considering their relevance.

(Per Egan J.): That since litigation could only, as a rule, be properly conducted by professional lawyers, it was desirable, subject to certain exceptions, that a litigant should be able to have recourse to them in circumstances which enabled him to place unrestricted confidence in the lawyer whom he consulted, and that the communications between them should be kept secret.

Cases mentioned in this report:—

Ambiorix Ltd. v. Minister for the Environment [1992] 1 I.R. 177; [1992] I.L.R.M. 209.

Bullivant v. A.G. for Victoria [1901] A.C. 196.

Chandler v. Church [1987] N.L.J. Rep. 451.

Crescent Farm Sports v. Sterling Offices [1972] Ch. 553; [1972] 2 W.L.R. 91; [1971] 3 All E.R. 1192.

Derby & Co. Ltd. Weldon (No. 7) [1990] 3 All E.R. 161.

Dorene Ltd. v. Suedes (Ireland) Ltd. [1981] I.R. 312; [1982] I.L.R.M. 126.

Gamlen Chemical Company (U.K) Ltd. v. Rochem Ltd. and Others[1983] R.P.C. 1.

Greenogh v. Gaskill (1833) 1 My. & K. 98.

Murphy v. Dublin Corporation [1972] I.R. 215; (1972) 107 I.L.T.R. 65.

O'Rourke v. Darbishire [1920] A.C. 581.

R. v. Cox and Railton (1884) 14 Q.B.D. 153; 15 Cox C.C. 611.

Smurfit Paribas Bank Ltd. v. AAB Export Finance Ltd. [1990] 1 I.R. 469; [1990] I.L.R.M. 588.

Williams v. Quebrada Railway, Land and Copper Company Ltd.[1895] 2 Ch. 751.

Notice of motion.

The facts are summarised in the headnote and fully set out in the judgment of Finlay C.J., infra.


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