University College Cork - National University of Ireland v The Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 21 March 2014
• Neutral Citation: [2014] IEHC 135
• Court: High Court
• Docket Number: [2012 No. 129 P & 2012 No. 6 COM]
• Date: 21 March 2014

BETWEEN

UNIVERSITY COLLEGE CORK - NATIONAL UNIVERSITY OF IRELAND

PLAINTIFF

AND

THE ELECTRICITY SUPPLY BOARD

DEFENDANT

[2014] IEHC 135

[2012 No. 129 P] [2012 No. 6 COM]

THE HIGH COURT COMMERCIAL

Privilege – Inspection of documents – Disclosure – Plaintiff seeking inspection of documents – Whether defendant has litigation privilege

Facts: The plaintiff is University College Cork - National University of Ireland. In proceedings issued by plenary summons in January 2012, the plaintiff made a claim for damages for negligence, breach of duty and nuisance arising out of a flood on the night of 19th November 2009 against the defendant, the Electricity Supply Board. In two notices of motion heard together in this High Court judgment, the plaintiff sought inspection of certain documents; two emails and their attachments sent since the 2009 flood in 2010 and prior reports of three earlier floods in 1990, 1997 and 2000. The defendant sought to assert litigation privilege over the same documents. The defendant’s claim over the emails was based on two affidavits of a solicitor under their employ who deposed that her dominant intention in seeking the information was to prepare for litigation, while their claim over the reports arose from apprehended, threatened or existing litigation related to the earlier floods, relying upon Quinlivan v. Tuohy (Unreported, High Court, Barron J., 29th July, 1992). The plaintiff argued that the litigation privilege no longer subsists, distinguishing litigation privilege from legal advice privilege through reliance upon Kerry County Council v. Liverpool Salvage Association [1904] 38 I.L.T.R. 7.

Held by Geoghegan J that, having considered the principles applicable to the defendant’s claim to litigation privilege, while the defendant had established that a purpose of the preparation and transmission of statements and reports was apprehended or threatened litigation, in accordance with established principles such a finding does not entitle the defendant to claim privilege as this was not the dominant purpose for which the statements and reports were prepared, according to Gallagher v. Stanley [1998] 2 I.R. 267. In considering the duration of litigation privilege, Geoghegan J decided that it should be reconsidered in the context of the general principles in relation to discovery set out in the decision in Smurfit Paribas v. AAB Export Finance [1990] 1 I.R. 469. Geoghegan J declined to follow the earlier High Court decisions, holding that while the objective of litigation privilege is to permit a party in litigation to prepare its position without adversarial interference and without fear of premature disclosure, such objective purpose does not require such privilege to automatically continue beyond the final determination of either that litigation or closely related litigation. Where the second proceedings are not closely related to the first, there is no objective of the proper conduct of the administration of justice which outweighs the disadvantage arising from the restriction of disclosure of all the facts.

Geoghegan J held that the defendant is not entitled to claim privilege over the two emails and their attachments or the 1997 and 2000 reports; the plaintiff is entitled to an order for inspection of the same. Geoghegan J concluded that the defendant is not automatically entitled to assert privilege for the 1990 report by reason of its entitlement to have claimed privilege over it in earlier proceedings as there is no substantive connection between the plaintiff’s claim in the proceedings arising out of the 2009 flood and the claims arising out of the 1990 flood. Hence the defendant is obliged to produce the 1990 report for inspection and the defendant’s notice of motion is dismissed.

Judgment granted.

Ms. Justice Finlay Geoghegan

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 21st day of March 2014

1 1. This judgment is given on the issues raised in two notices of motion heard together. The plaintiff seeks inspection of certain documents and the defendant seeks to assert privilege over the same documents. There is potentially a further issue arising by reason of the mistaken disclosure by the defendant of three of the relevant documents.

2 2. The proceedings issued by plenary summons in January, 2012 make a claim for damages for negligence, breach of duty, nuisance and pursuant to the rule in Rylands v. Fletcher arising out of a flood which occurred in the River Lee on the night of 19th November, 2009.

3 3. The documents at issue in these applications may be divided into two categories. The first, those created since the 2009 flood, and secondly, those created in relation to three earlier floods. The documents have all been discovered by the defendant as relevant and have been given to the Court for the purpose of deciding the application. The relevant documents are:

Post-2009 Flood

(i) An email from Liam (William) Buckley to Glenn Pope dated 11th February, 2010 at 4:59pm with subject heading ‘Statement of flood events 19th Nov 2009 not final version’ (“the Liam Buckley email”).

(ii) The attachment to the Liam Buckley email - statement on flooding events of 19th November 2009.

(iii) Email from Tom Browne to Liam (William) Buckley c.c. Glenn Pope dated 10th March 2010 4:54pm subject ‘Witness Statements’ (“the Tom Browne email”).

(iv) The attachments to the Tom Browne email: Ger Keeley Statement; James Hegarty Statement; Jerry Browne Statement; Liam Buckley Statement; and Michael Shine Statement.

4 The first three documents above have been disclosed by mistake to the plaintiff. The attachments to the Tom Browne email have not been disclosed to date to the plaintiff.

Prior Reports

(v) Report of Jack O’Keeffe created circa 1990 (“the 1990 report”).

(vi) Report of Robert Cullen created circa 1997 (“the 1997 report”).

(vii) Report of Robert Cullen created circa 2000 (“the 2000 report”).

5 The first issue is whether the four documents created after the 2009 flood are privileged by reason of the principles relating to litigation privilege.

6 Post-2009 Documents

7 4. There was no real dispute about the principles applicable to the defendant’s claim to litigation privilege, though counsel for the respective parties emphasised different aspects of the relevant judgments. The relevant principles may be summarised as follows:

(i) Litigation privilege constitutes a potential restriction and diminution of a full disclosure, both prior to and during the course of legal proceedings which is desirable for the purpose of ascertaining the truth and rendering justice. As such, it must be constrained. Smurfit Paribas v. AAB Export Finance [1990] 1 I.R. 469 per Finlay C.J. at p. 477.

(ii) The purpose of litigation privilege is to aid the administration of justice, not to impede it. In general, justice will be best served where there is candour and where all relevant documentary evidence is available. Gallagher v. Stanley [1998] 2 I.R. 267 per O’Flaherty J. at p. 271.

(iii) The document must have been created when litigation is apprehended or threatened.

(iv) The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation. Gallagher v. Stanley [1998] 2 I.R. 267 at p. 274 approving the test propounded by the House of Lords in Waugh v. British Railways Board [1980] A.C. 521.

(v) The dominant purpose of the document is a matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created. Gallagher v. Stanley and Woori Bank & Hanvit LSP Finance Ltd. v. KDB Bank Ireland Ltd. [2005] IEHC 451.

(vi) The onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or enable his solicitor prosecute or defend an action. Woori Bank and Downey v. Murray [1988] N.I. 600.

8 Evidence of Defendant

9 5. The defendant’s claim to privilege is grounded upon two affidavits of Ms. Davis, a solicitor employed in the legal department of the defendant, who, since December 2009, is the solicitor with primary responsibility for the litigation arising out of the 2009 flood.

10 6. Ms. Davis deposes that following the flood, litigation was threatened as early as the week commencing 23rd November, 2009. I accept that the defendant has established as a matter of probability that litigation, in the form of claims arising out of the flood, was apprehended or threatened from that date.

11 7. Ms. Davis deposes that she had a meeting with Mr. Glenn Pope and others on 10th December, 2009, and requested him to obtain detailed statements from all the Lee station staff that had an active role in the flood management reporting to him. She deposes that where information is sought from within the ESB by the legal department, it is done through the relevant line manager. She also deposes that her dominant intention in seeking the information was to prepare for litigation.

12 8. The evidence adduced on behalf of the plaintiff is by affidavit of Ms. Gilroy, a solicitor with Mathesons, the solicitors on record for the plaintiff. In relation to Mr. Tom Browne, she deposes that the discovery made by the defendant indicates that from at least August 2009, he was the engineering and technical risk manager within ESB power generation. This is not disputed by the defendant. Ms. Davis deposes, in relation to Mr. Browne’s email, that he “had assumed the role of principal point of contact between the legal department and ESB as client”. She also deposes that he was actively engaged, at her request, in the gathering of information...