Shell E & P Ireland Ltd v McGrath (No. 2)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 05 December 2006
• Neutral Citation: [2006] IEHC 409
• Court: High Court
• Docket Number: Case No. 840P/2005,[2005 No.
• Date: 05 December 2006

SHELL E & P IRELAND LTD v MCGRATH & ORS

IN THE MATTER OF SHELL E. AND P. IRELAND LTD

PLAINTIFF

and

PHILIP McGRATH, JAMES PHILBIN, WILLIE CORDUFF, MONICA MULLER, BRID McGARRY, PETER SWEETMAN

DEFENDANTS

MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND AND THE DEFENDANTS ATTORNEY GENERAL TO THE COUNTERCLAIM

[2006] IEHC 409

Case No. 840P/2005

THE HIGH COURT

DUBLIN

-SHELL E & P IRELAND LTD v MCGRATH & ORS: 2006 IEHC 409; 2007 1 ILRM 544

: The plaintiff sought to claim privilege in respect of an attendance docket from the solicitors for the plaintiff which had been inadvertently disclosed to the defendants. It was common case that the documentation was protected by legal professional privilege and the sole issue for consideration was whether the privilege had been lost. The attendance docket evidenced a consideration of the various options open to the plaintiff and an assessment of certain tactical considerations in the course of litigation.

Held by T.C. Smyth J. that on the balance of probabilities that a reasonable solicitor would have realised that the attendance docket had come to the defendants in error and that the information was privileged and was clearly advice sought or given during the course of legal proceedings. There was no abuse of process or moral turpitude or impropriety on behalf of the plaintiff or its solicitors

Reporter: E.F.

GAS ACT 1976 S40

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

ANDERSON v BANK OF BRITISH COLUMBIA 1876 3 CH D 644

BOLTON v LIVERPOOL CORPORATION 1833 1 M & K 88

HOLMES v BADDLEY 1844 1 PH 476

R v ULJEE 1982 1 NZLR 561

GALLAGHER v STANLEY & NATIONAL MATERNITY HOSPITAL 1988 2 IR 267

MURPHY v KIRWAN 1993 3 IR 501 1994 1 ILRM 293

BULA LTD v CROWLEY (NO 2) 1994 2 IR 54

HANNIGAN v DPP & SMITHWICK 2001 1 IR 378 2002 1 ILRM 48

CALCRAFT v GUEST 1898 1 QB 759

LORD ASHBURTON v PAPE 1913 2 CH 469

GUINNESS PEAT PROPERTIES LTD v FITZROY ROBINSON PARTNERSHIP 1987 2 AER 716

GODDARD v NATIONAL BUILDING SOCIETY 1987 1 QB 670

ENGLISH & AMERICAN INSURANCE CO LTD v HERBERT SMITH 1988 FSR 232

DERBY & CO LTD v WELDON (NO 8) 1991 1 WLR 73

PIZZEY v FORD MOTOR CO LTD THE TIMES 8.3.1993

PARAGON FINANCE PLC v FRESHFIELDS 1999 1 WLR 1183

1 JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTHON TUESDAY, 5 DECEMBER 2006

1. INTRODUCTION

2 The application before the Court is one in which the second and fifth named Defendants ("these Defendants") seek a determination/directions in relation to whether the Plaintiff is entitled to claim privilege in respect of, or whether the Defendants are entitled to adduce in evidence, an attendance docket of Eugene F. Collins, the solicitors for the Plaintiff, dated 10 June 2005 ("the Attendance Docket"). It was common case that the documentation was protected by legal professional privilege when it was created and the question for decision by the Court is:- whether that privilege has been lost by the inadvertent disclosure of the Attendance Docket to the Defendants.

2. GENERAL BACKGROUND

3 This notorious litigation began with the issue of a Plenary Summons on 4 March 2005 which was served on all Defendants on the following day. A Notice of Motion (seeking injunctive relief), dated and issued on 4 March 2005 was grounded on an affidavit of one Paul Gallagher sworn on the same date. These Defendants entered an Appearance in person dated 10 March 2005, these Defendants both swore an affidavit on 9 March 2005 noted as filed in the Central Office on 10 March 2005. All other Defendants swore contesting affidavits. Finnegan, P. at the conclusion of a contested application for an interlocutory injunction (in which these Defendants represented themselves) on 4 April 2005 ordered that the Defendants be restrained until the hearing or until further order:

"...from obstructing or continuing to obstruct and/or interfering or continuing to interfere with the entry by the Plaintiff on to the pipeline corridor and deviation limits through lands at Rossport in the County of Mayo more particularly described in the Compulsory Acquisition Orders...for the purposes of the preparation, construction and installation of the Corrib onshore natural gas import pipeline and associated outfall pipe and control cable ducts and all works ancillary and necessarily associated with such preparation, construction and installation including, the erection of fencing at the boundaries of the said lands with appropriate pedestrian and agricultural access as may reasonably be required by the Defendants, such works to be carried out by the Plaintiff its servants or agents without unreasonable interference with the Defendants" right to use their premises and other lands and the Plaintiff attempting to facilitate the Defendants normal farming PROVIDED ALWAYS that such pipeline shall not be used for transmitting natural gas from the Corrib Gas Field until these proceedings have been determined or until further Order of this Honourable Court."

4 The matter came before the Court for mention on Tuesday, 7 June 2005 and some personnel of the Plaintiffs were in consultation with the Plaintiff's solicitors on Friday, 10 June 2005 in respect of which the Attendance Docket came into being.

5 On 14 July 2005 on the application of the Plaintiff the Order of 4 April 2005 was varied to incorporate an "undertaking" that no such works would be carried out otherwise than in accordance with the consent issued by the Minister pursuant to section 40 of the Gas Act 1976 and the conditions therein contained."

6 Arising from their breach of the Order of 4 April 2005 and their refusal to provide any undertaking to abide by the terms of that Order, an Order of MacMenamin, J. dated 29 June 2005 committed (inter alia) the second Defendant to prison until such time as he purged his contempt. This he did not do nor did he apologise for his conduct: however, all Defendants were released from prison on 30 September 2005 upon an application of the Plaintiffs to discharge the interlocutory injunction of 4 April 2005.

3. SPECIFIC BACKGROUND

7 In an affidavit of William Aylmer of the Plaintiff's solicitors sworn on 8 November 2006 he explains that he inadvertently included copies of three solicitors attendance dockets as part of a book of inter partes correspondence in an exhibit to an affidavit sworn on 23 June 2005 to ground an application for the attachment and committal of five persons including the second Defendant.

4. FACTS

8 I am satisfied on the evidence and find as a fact that:

9 (a) It is clear that there was no intention on the part of the Plaintiff or its solicitors to waive privilege in the Attendance Docket

10 (b) Its disclosure to these Defendants was through inadvertence and mistake, rather than a result of a deliberate decision or action.

11 (c) Having regard to its heading, form and contents (and the nature or character of the exhibit of which it formed part) it would have been immediately clear and obvious, particularly to a solicitor, that the document was not a letter or part of a correspondence, but an Attendance Docket which was a privileged document (recording the giving and receiving of legal advice in the course of ongoing proceedings) and that its disclosure was a mistake.

12 The mistake came to light in this way. A representative of the Irish Times contacted the Plaintiff on 4 July 2005 with a view to obtaining its comments on certain file notes that had come into its possession relating to a meeting between the Plaintiff and its solicitors on 7 and 10 June 2005. This fact taken in conjunction with other proceedings of 1 July 2005 issued by a Mr. Casey on behalf of the fourth and sixth Defendant gave rise to an apprehension by Mr. Aylmer that those Defendants might have come into possession of the inadvertently disclosed material and might seek to rely on the confidential attendance to ground or assist in some way to vary or set aside the Order of 4 April 2005. Accordingly Mr. Aylmer wrote immediately to Mr. Casey, the solicitor for those Defendants, asserting privilege over the confidential Attendance Docket, prior to any attempt to adduce the Attendance Docket in evidence either on an interlocutory application and prior to trial.

13 Neither the Plaintiff or its solicitors engaged with the newspaper which published disjointed excerpts from the Attendance Docket - rather did they give their attention to the possibility of a disloyal person divulging clearly confidential information. As no other Defendant, other than those represented by Mr. Casey, had given any indication of bringing any form of interlocutory application or having knowledge or receipt of privileged documents they had no apprehension of such documents (inadvertently disclosed to those Defendants in June 2005) would be sought to be used in these proceedings.

14 On or about 8 July 2005 the second Defendant was professionally represented by Messrs. Ferry solicitors. No-one communicated with the Plaintiff or its solicitors to disclose that they had a copy of the Attendance Docket or that they would use it in these proceedings.

15 On or about 26 September 2006 the matter was before the Court and Senior Counsel for the Plaintiff noticed at counsels" bench that the solicitor then and now on record for these Defendants had a copy of the Attendance Docket. The fact of having possession of the copied document was not brought to the attention of the Court or the Plaintiff or its solicitor or counsel either directly or at all at that time by the Defendant or either of them or their solicitor or counsel and no indication was given that the Attendance Docket would be produced or used in the proceedings and the Plaintiff and its solicitors had no apprehension that it would be either produced or used in these proceedings.

16 The case made on behalf of these Defendants may be...