The High Court has refused Michael McMullen access to most of a solicitor’s privileged litigation file, while directing that three letters immediately preceding a previously disclosed letter be examined to assess whether his allegations of undue influence are viable and plausible.
Mr Justice Roderick Murphy gave the ruling on 17 July 2007 in proceedings brought by Mr McMullen against solicitor Giles Kennedy, who had acted for the insurers of Kent Carty & Co., Mr McMullen’s former solicitors. The motion was heard on 6 June.
Mr McMullen sought access to documents listed in the second part of Mr Kennedy’s affidavit of discovery, or alternatively for the court to inspect them. He also sought an order striking out the defence if Mr Kennedy did not comply. Mr Kennedy had claimed legal professional privilege over documents numbered 162 to 491 in the disclosed list.
The dispute arises from earlier litigation over a 1985 settlement between Mr McMullen and his lessor, Charleville Estate Company. Mr McMullen later sued Kent Carty & Co. and counsel Noel Clancy SC, alleging negligence and issues concerning the settlement and Mr Clancy’s evidence. Those actions were unsuccessful. Mr McMullen’s current claim alleges that Mr Kennedy used undue influence, incentives or coercion in connection with Mr Clancy’s evidence.
The court said no basis for fraud or illegality had been established, and found no evidential basis for conspiracy or an arrangement to induce Mr Clancy to give evidence. It also held that the waiver of privilege arising from Mr McMullen’s earlier suits against his solicitor and counsel did not extend to communications in the file at issue. The judge said allegations of tortious conduct alone did not establish an exception to legal professional privilege.
However, the court noted that document 174, a letter dated 17 May 1989 from Mr Kennedy’s firm to Admiral Underwriting Agencies (Ireland) Ltd., had already been discussed in the Supreme Court. The judge concluded that it should be disclosed, referring to counsel’s position in that appeal that he was not raising privilege over it.
The judge said the court should examine the three documents immediately before it—two communications dated 24 April 1989 and a letter dated 4 May 1989—to determine whether the allegations of undue influence were viable and plausible for the purpose of considering an exception to privilege. The judgment refuses Mr McMullen’s application in respect of the remaining documents in the second part of the schedule. It does not record a final determination on whether the three earlier documents are privileged.