PRENDERGAST v McLOUGHLIN

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 September 2008
• Neutral Citation: [2008] IEHC 296
• Court: High Court
• Docket Number: [2006
• Date: 25 September 2008

Prendergast v McLoughlin

IN THE MATTER OF THE ESTATE OF PATRICK DEMPSEY, LATE OF BALLINAMONA, CLARA IN THE COUNTY OF KILKENNY

BETWEEN

MICHAEL PRENDERGAST

PLAINTIFF

AND

LIAM McLOUGHLIN

DEFENDANT

[2008] IEHC 296

[No. 3411P/2006]

THE HIGH COURT

PRACTICE AND PROCEDURE

Documents

Inspection - Privilege - Legal professional privilege - Legal advice privilege - Legal advice or legal assistance - Dominant purpose - Making of will - Giving of instructions - Redaction - Affidavit of scripts - Whether communications between potential testator and solicitor for purpose of making will privileged - Ochre Ridge Ltd v Cork Bonded Warehouses Ltd [2004] IEHC 160 (Unrep, Lavan J, 13/7/2004), Three Rivers DC v Bank of England (No 5) [2003] EWCA Civ 474, [2003] QB 1556, R v Crown Court, ex parte Baines [1988] 1 QB 579 and Balabel v Air India [1988] Ch 317 followed; Moorview Development Ltd v First Active plc [2008] IEHC 274 (Unrep, Clarke J, 31/7/2008), Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436 and Rush & Tompkins Ltd v Greater London Council [1989] 1 AC 1280 considered - Inspection granted (2006/3411P - Clarke J - 25/9/2008) [2008] IEHC 296

Re Dempsey: Prendergast v McLoughlin

Facts: The plaintiff claimed to be entitled to property as a result of inter alia a promise which he said was made to him by the deceased. The defendant delivered a full defence. The Court made an order for discovery. However, almost all of the documents in the affidavit of discovery were subject to a claim of privilege. The issue in this application was whether communications between a potential testator and a solicitor for the purposes of the solicitor concerned drawing up a will could be said to be privileged.

Held by Clarke J. in disallowing the claim of privilege, with the exception of redactions, that documents produced for the purposes of giving instructions for the making of a will were not, by reason of that status alone, privileged.

Reporter: R.W.

CIVIL LIABILITY ACT 1961

STATUTE OF LIMITATIONS 1957

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

OCHRE RIDGE LTD v CORK BONDED WAREHOUSES LTD & PORT OF CORK CO LTD UNREP HIGH LAVAN 13.7.2004 2004/37/8652

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

BALABEL & ANOR v AIR INDIA 1988 CH 317

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

R v INNER LONDON CROWN COURT, EX PARTE BAINES & BAINES (A FIRM) & ANOR 1988 QB 579

MILEY v FLOOD 2001 2 IR 50

TROMSO SPAREBANK v BEIRNE 1989 ILRM 257

R v MANCHESTER CROWN COURT, EX PARTE ROGERS 1999 4 ALL ER 35

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP HIGH CLARKE 31.7.2008 2008 IEHC 274

UNILEVER PLC v THE PROCTER & GAMBLE CO 2000 FSR 344

RUSH & TOMPKINS LTD v GREATER LONDON COUNCIL & ANOR 1989 AC 1280

RSC O.12 r27

RSC O.12 r28

1. Introduction

2 2 1.1 In these proceedings the plaintiff ("Mr. Prendergast") claims to be entitled to property at Ballinamona, Clara in County Kilkenny, as a result of a promise which he says was made to him by Patrick Dempsey, the Deceased, named in the title to these proceedings and by a brother of Patrick Dempsey, John Dempsey, also deceased. It is said that in return for Mr. Prendergast (for a period of twenty-five years) doing significant works connected with the farming of the lands in question, both Mr. Patrick Dempsey and Mr. John Dempsey promised that the lands would be left to Mr. Prendergast on the death of the survivor of Patrick and John Dempsey. Mr. John Dempsey predeceased his brother.

3 3 1.2 The pleadings have closed and a number of issues of defence have been put forward including a contention that any claim which the plaintiff may have is barred pursuant to certain provisions of the Civil Liability Act, 1961 and the Statute ofLimitations, 1957. In addition a full defence has been filed denying the factual basis put forward by Mr. Prendergast for his claim. The defendant ("Mr. McLoughlin") is the nephew and personal representative of the late Patrick Dempsey.

4 4 1.3 While it is clear that there are likely to be significant legal issues which require to be resolved in these proceedings, it is also the case that the resolution of contested facts is likely to become material to the ultimate outcome of the proceedings. In that context Mr. Prendergast sought discovery of documents which he maintained were relevant to the proceedings. The Master, by order of 12 ^th October 2007, directed that discovery be made of a category of documents to which I will refer in more detail in due course. That order was upheld on appeal and an affidavit of discovery was duly sworn by Mr. McLoughlin. However all of the documents referred to in that affidavit of discovery (with the exception of an original and copy of the grant of probate of John Dempsey and a copy of the will of John Dempsey), were subject to a claim of privilege. Mr. Prendergast contests that claim of privilege, and this judgment is directed towards the issues which arose between the parties in that context.

5 5 1.4 I propose referring first to the procedural history of the matter.

2. Procedural History

2 2 2.1 By a motion returnable before the Master on 20 ^th July, 2007, Mr. Prendergast sought discovery of the following documents:-

"Any paper, parchment or writing at any time made or written by or under the direction of the late John Dempsey, Deceased or the late Patrick Dempsey, Deceased, both formally of Ballinamona, Clara in the County of Kilkenny, being or purporting to be a will, codicil, draft or copy of a will or codicil, or any part of a will or codicil, or written instructions for a will or codicil, or apart of a will, codicil or other testamentary disposition of either of the said Deceased."

3 3 2.2 That application had been preceded by the exchange of correspondence required by the rules of court. The relevant letter of request was dated the 12 ^th February, 2007, and in that letter the reason for seeking the documents concerned was said to be that:-

"the Plaintiff maintains in these proceedings that the Plaintiff assisted both of the said Deceased in working and maintaining farmlands at Ballinamona, Clara in the County of Kilkenny during their respective life times and that the plaintiff was repeatedly told by both Deceased that the said farm lands would be left to him after they had both died. The Plaintiff therefore needs to obtain discovery of the aforesaid documentation so as to establish whether either or both of the said Deceased had stated their respective contentions to a party other than the Plaintiff, prior to their deaths, to bequeath the said lands to the Plaintiff and to ascertain the extent to which their said intentions were recorded in writing."

4 4 2.3 In a replying letter dated the 9 ^th May, 2007, solicitors for Mr. McLoughlin declined to make discovery and asserted that the documentation, the subject of the letter of request, was not relevant to the proceedings and was, in any event, privileged.

5 5 2.4 On the 12 ^th October, 2007, the Master made an order requiring Mr. McLoughlin to make discovery of the specified category of documents within six weeks of the date of the order. An appeal was brought against the order of the Master. However, by order of this court (Lavan J.) of the 26 ^th November, 2007, the order of the Master was affirmed. The relevance of the specified category of documentation is no longer, therefore, in issue.

6 6 2.5 Thereafter, on 9 ^th January, 2008, Mr. McLoughlin swore an affidavit of discovery which included in the first part of the first schedule, only an original and copy of the grant of probate in the estate of the late John Dempsey and a copy of the will of the same John Dempsey.

7 7 2.6 There was set out in the second part of the first schedule (being those documents in respect of which privilege was claimed), a series of nine documents which consist either of attendances by Messrs. M.J. Crotty and Son, Solicitors, on both John and Patrick Dempsey concerning the making of their respective wills, and certain documents given to those solicitors in the same context together with a draft will. At para. 3 of the affidavit of discovery, Mr. McLoughlin objected to the production of those documents on the grounds "that the said documents consist of privileged correspondence, draft Will, instruction sheet and attendances between Solicitor and client".

8 8 2.7 A motion was then brought before this court on behalf of Mr. Prendergast which sought to contest the privilege claimed. The nett issue between the parties is, therefore, as to whether the privilege asserted by Mr. McLoughlin in his affidavit of discovery is properly claimed.

3. The Issues

2 2 3.1 The issue raised in this application is, therefore, both far-reaching and, to a certain extent, novel. It concerns whether, as a matter of principle, communications between a potential testator and a solicitor for the purposes of the solicitor concerned drawing up a will can be said to be privileged, or at least privileged in proceedings such as these.

3 3 3.2 Before going on to consider that issue, it is important to note that there are undoubtedly aspects of the types of communication which might typically beexpected to arise between a potential testator and a solicitor, which would undoubtedly be the subject of legal advice privilege in the ordinary way. In some cases it may be necessary, or at least desirable, for a testator to obtain legal advice prior to formulating the precise terms of a will. A few examples will suffice. In the case of persons with reasonably significant assets, questions of taxation may well arise, which can be affected by the precise way in which a will is formulated. Instructions given and advice tendered in relation to such matters are clearly prima...