Ochre Ridge Ltd v Cork Bonded Warehouses Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 03 July 2004
• Neutral Citation: [2004] IEHC 160
• Court: High Court
• Docket Number: HC 293/04
• Date: 03 July 2004

[2004] IEHC 160

THE HIGH COURT

HC 293/04

Record No. 2000/9333P

OCHRE RIDGE LTD v. CORK BONDED WAREHOUSES LTD & PORT OF CORK COMPANY LTD

THE HIGH COURT

BETWEEN/

OCHRE RIDGE LIMITED

PLAINTIFF

AND

CORK BONDED WAREHOUSES LIMITED AND PORT OF CORK COMPANY LIMITED

DEFENDANTS

Citations:

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

BALABEL V AIR INDIA 1988 1 CH 317

THREE RIVERS DISTRICT COUNCIL V GOVERNOR & CO OF THE BANK OF ENGLAND (NO 5) 2003 QB 1556

CANNON & NELIGAN EVIDENTCE 2002 260

MILEY V FLOOD 2001 2 IR 50

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2001 132

HURSTRIDGE FINANCE LTD V LISMORE HOMES UNREP COSTELLO 15.2.1991 1991/3/694

R V CROWN COURT EX PARTE BAINES 1987 3 AER 1025

TROMSO SPAREBANK V BEIRNE 1989 ILRM 257 1989/8/2532

R V MANCHESTER CROWN COURT EX PARTE ROGERS 1999 4 AER 35

CROSS & TAPPER ON EVIDENCE 9ED 1999 446

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

BUTTES GAS & OIL CO V HAMMER 1981 1 QB 233

BULA LTD V CROWLEY UNREP MURPHY 8.3.1991 1991/7/1680

GALLAGHER V STANLEY 1998 2 IR 267

MURPHY V DUBLIN CORPORATION 1972 IR 215

Abstract:

Professions - Legal professional privilege - Legal advice privilege - Burden of proof - Whether the documents over which privilege was claimed had the dominant purpose of requesting or providing legal advice.

Facts: The defendant sought production and inspection of 53 documents over which the plaintiff claimed legal professional privilege. The documents at issue related to communications of a confidential nature between the plaintiff and its solicitor, with the dominant purpose being the provision of legal advice, associated communications, communications between the plaintiff’s solicitors and a third party bank, communications from the defendant’s solicitors to the plaintiff’s solicitors and correspondence from solicitor to plaintiff as to the client account.

Held by Lavan J. in allowing the claim of legal advice privilege except in relation to the communications between the plaintiff’s solicitors and the third party bank and the account related correspondence:

1. That the fact that the communications related to a phase prior to the incorporation of the plaintiff itself, was irrelevant so long as the communications formed part of the spectrum of legal advice between legal advisor and client.

2. That most of the documentation at issue comprised material, which had a dominant purpose of requesting or providing legal advice. The remaining documents were necessary or relevant to the provision of legal advice as surrounding or background documentation and were privileged. The documents were not covered by litigation privilege as none of the documents came into existence with the dominant purpose of the contemplation of litigation.

3. That the plaintiff had discharged the burden of proof necessary to ground a claim for privilege. However, the first named defendant failed to impugn the claim of privilege.

Reporter: L.O’S.

1 Mr. Justice Lavan delivered on the 3rd day of July 2004.

2 This application relates to the plaintiff's assertion of legal professional privilege over the 53 documents at issue between the parties, as to which the defendant has sought production and inspection thereof. An issue of fundamental importance is also raised here for members of the legal profession as to the contours of legal advice and legal assistance privilege, occupying a very significant practical role in the law of discovery. I propose to examine the issue as to the critical distinction between legal advice and legal assistance privilege firstly, because of its relevance to the present application, where considerable differences lie between the parties.

The Distinction Between Legal Advice And Legal Assistance

3 In the decision of the Supreme Court in Smurfit Paribas Bank Limited v. A.A.B. Export Finance [1990] 1 I.R. 469, an important distinction was drawn as to the remit of legal professional privilege, between legal advice and legal assistance, not reflecting the decisions of the English courts where a considerably broader construction has been adopted, shorn of such distinctions: see Balabel v. Air India [1988] Ch. 317. The Irish law of legal professional privilege has been held by the Supreme Court in Smurfit Paribus to be limited as a matter of policy to the former, a distinction that has not been overruled and which the High Court is bound as a matter of precedent to apply, despite the numerous difficulties associated with its contours. "Legal assistance" as a category was there held to lack of close and proximate link to the also conduct of litigation and the functioning of administering justice. This distinction also limits the utility of much of the case law of the United Kingdom in the Irish courts.

4 The precise boundaries of "legal advice" have yet to be visited by the Supreme Court and the academic authorities are not entirely prescriptive in this regard. This absence of definition of the scope of the privilege has been noted in the English context in the Court of Appeal recently in Three Rovers District Council v. Governor and Company of the Bank of England (No. 5) [2003] QB1556.

The Scope Of "Legal Advice"

5 While the leading case of Smurfit Paribas Bank governs the area of "legal advice" privilege, there are many principles that must be considered here, certain of which have arisen subsequent to the Supreme Court decision in Smurfit Paribas Bank, almost 14 years ago. They may be summarised usefully as follows:

6 (1) That a communication must be made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice;

7 (2) The dominant purpose of the communications must be the seeking or giving of legal advice. While most of the Irish cases or textbook writers do not employ the terminology of a "dominant purpose" as to the test for legal advice privilege (it more usually being associated with "litigation" privilege, not the subject of discussion here), it is useful in determining the scope of "legal advice" and appears to form part of the test in the English authorities: see Three Rovers District Council v. Governor and Company of the Bank of England (No.5) [2003] QB1556.

8 (3) "Advice" does not extend to business matters nor to conveyancing documents but the correspondence associated with a conveyance for the purpose of seeking or giving legal advice is see Cannon & Neligan Evidence (Roundhall, 2002), p. 260. While the authors there also invoke Balabel v. Air India [1988] Ch.317 in support of this proposition, the comments of Kelly J. in Miley v. Flood [2001] 2 I.R. 50 are of note where he suggests at p.73 that the Supreme Court's decision in Smurfit did not adopt the propositions in Balabel, although cited to the Court and that the decision of the Court to limit the ambit of "legal advice" privilege further limits the relevance of the case law of the English Courts.

9 (4) The test per Finlay CJ in Smurfit Paribas at p. 478, is of much importance, where it was stated that:

"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 somestep 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."

10 This, however, must be fully considered in addition to other aspects of that case, discussed infra:

11 (5) The provision of legal assistance may entail the provision of legal advice because of the fact that a solicitor's duty of care extends beyond the scope of instructions and requires him to consider the legal implications of the facts told to him: see Delany and McGrath Civil Procedure in the Superior Courts (Roundhall, 2001) at para. 8.012;

12 (6) That surrounding documents consulted for the purpose of drafting documents and the purpose of obtaining legal advice which included assistance are privileged (see Hurstridge Finance Ltd. v. Lismore Homes (Unreported, High Court Costello J., 15 February 1991)):

13 (7) Delany and McGrath at para. 8.012 note the decisions of R. v. Crown Court ex p. Baines [1987] 3 All ER 1025, where it was held that communications between solicitor and client giving legal advice in respect of a conveyancing transaction were privileged but records of a conveying transaction were not because they did not contain legal advice:

14 (8) The effect of Miley v. Flood [2001] 2 IR 50 is of interest, where it was held that a solicitor will not be required to disclose information as to the details of a client where it is so interwined with the legal advice that the effect of revealing it would be to disclose the advice;

15 (9) Privilege does not attach to copies of pre-existing documents which are made for the purposes of obtaining legal advice: Tromso Spaerbank v. Beirne [1989] ILRM 257:

16 (10) The details of when a client met with their lawyer are usually not the subject of legal advice privilege unless in the exceptional instance of where such details are required by a solicitor to give legal advice (see R. v. Manchester Crown Court, ex. P. Rogers [1999]4 All ER 35);

17 (11) Communications from an opponent's solicitor to a client do not benefit from legal advice privilege as such communication is hardly likely to convey legal advice, unless it contemplates settlement: see Cross & Tapper on Evidence (Butterworths: 9 ^th ed., 1999) p.446;

18 (12) And finally, the objective, as stated by Finlay CJ in Smurfit Paribas that, "the public interest in the proper conduct of the administration of justice" arising from the restriction of a disclosure, is a relevant consideration in any...