This is the final article in our three part series dealing with legal professional privilege (See Parts 1 and Part 2).
Right of parties to choose certain documents
The case of Quinn & ors v. Irish Bank Resolution Corporation & ors [2018] IEHC 481 examined the issue of whether the plaintiffs were entitled to maintain a claim of litigation privilege over some of the documents held by their former solicitors, which were connected or related to the same 'transaction', the subject matter of disclosed privileged documents, or where they are part of a stream of documents, part only of which has been disclosed.
Background
The case concerned an application by Irish Bank Resolution Corporation ("IBRC") seeking an order for further and better discovery against the plaintiffs and an order declaring that the plaintiffs had no valid claim of privilege over all documents relating to Mason, Hayes & Curran solicitors' ("MHC") legal advices. The focus of the application was on whether the plaintiffs were entitled to maintain privilege over documents held by MHC.
The proceedings arise out of claims by the plaintiffs that share pledges and personal guarantees and indemnities executed by them are invalid and unenforceable in respect of certain lending by Anglo Irish Bank to various Quinn Group entities. MHC were initially consulted by the plaintiffs in relation to the commencement of the proceedings before the court but were unable to continue due to a conflict of interest. MHC were in possession of documents which were generated or arose in the context of anticipated litigation. IBRC did not dispute that, for the purposes of the application, ordinarily the documents discovered by MHC, or many of them, may attract a valid claim of privilege.
Discovery Process
The discovery process was somewhat complicated and included non-party discovery by MHC, issues in relation to the privilege claimed over some documents, and the waiver of privilege. Briefly, the plaintiffs made discovery of documents to IBRC but claimed privilege over certain MHC documents. This claim of privilege was challenged by IBRC and they issued a motion requiring the plaintiffs to produce the disputed privilege documents for inspection. The plaintiffs subsequently waived the privilege claimed over the documents and provided these documents to IBRC. Arising from this process (and related proceedings), IBRC's solicitors wrote to the solicitors for the plaintiffs identifying an absence of material relating to advice or correspondence with MHC in the period 2008-2010. IBRC maintained that this documentation ought to have been disclosed by the plaintiffs in their initial discovery schedule and that their later waiver applied to this material also. The plaintiffs responded to the effect that they had discovered the entirety of the documentation in their power, possession or procurement, and they rejected the suggestion that the waiver by them related to the entirety of all MHC documentation. IBRC brought a motion seeking an order for further and better discovery against the plaintiffs and an order declaring that the plaintiffs had no valid claim of privilege over all documents relating to MHC legal advice. This motion was adjourned, however, as IBRC sought non-party discovery from MHC. An order for discovery was made against MHC and following the discovery provided by MHC (which contained a list of documents over which privilege was being claimed), IBRC's motion against the plaintiffs was then re-entered.
Conclusion
The court commented it would approach the issue of waiver in light of the fundamental nature of legal professional privilege. It noted that legal professional privilege is now more than a mere rule of evidence, stating that it is an important right that is protected by Articles 6 and 8 of the European Convention on Human Rights.
In terms of waiver, the court considered issues of express waiver and unfairness. The court found that the terms of the plaintiffs' waiver in response to IBRC's initial motion only related to the documents over which the plaintiffs, at that time, claimed privilege and did not amount to a general waiver which applied to further documents subsequently discovered and over which privilege might be asserted. It was noted, however, that the plaintiffs had, in fact, waived privileged over a large body of documents which they had discovered and the court was satisfied that it would be unfair if the plaintiffs were able to maintain litigation privilege over MHC privileged documents, which were connected or related to the same 'transaction' the subject matter of disclosed privileged documents, or where they are part of a stream of documents, part only of which has been disclosed.
The court commented that there was a real risk that the plaintiffs would achieve unfair litigious advantage by partial disclosure of relevant documents which may give an incomplete understanding of the relevant communications / transactions involving MHC.
The court directed IBRC, by reference to the disclosed privilege documents arising from the plaintiffs' discovery, to compile a list of documents, extracted from the MHC privilege discovery lists that were potentially part of a transaction evident from the disclosed discovered documents by the plaintiffs. The objective of this was to identity MHC privileged documents which, if not disclosed, would result in the disclosed privileged documents giving such a partial, incomplete and misleading picture (by virtue of the disclosed privileged documents) as would be unfair to IBRC.
Comment
The courts will look at whether there is a real risk of a party achieving unfair litigious advantage by partial disclosure of relevant documents, which may give a partial, incomplete and misleading picture.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
