The High Court’s Commercial Court ordered disclosure of a limited group of documents in a dispute over legal professional privilege in proceedings involving members of the Quinn family, Irish Bank Resolution Corporation Limited (in special liquidation) and Kieran Wallace.
In a judgment delivered on 20 February 2019, Mr Justice Robert Haughton said the plaintiffs could maintain privilege over the disputed material except for documents identified in his ruling. He inspected the documents after IBRC challenged the plaintiffs’ descriptions and claims of privilege. The dispute concerned material obtained from the plaintiffs’ former solicitors, Mason Hayes & Curran, under a non-party discovery order.
The judge adopted a narrow approach to what counts as a “transaction” for deciding whether disclosure of one privileged document implies waiver over others. He said waiver should not ordinarily extend to all documents about the same subject. The party alleging implied waiver had to identify the relevant transaction and explain how maintaining privilege could create unfairness or litigation disadvantage. He also said each email chain must be assessed on its own circumstances.
Applying that approach, the judge found that most of the 116 documents previously described as inadequately identified, along with the disputed Category A and Category B documents, could remain privileged. He directed disclosure where documents did not attract privilege, or where withholding them would leave a disclosed conversation incomplete or potentially misleading.
The documents listed for disclosure included an email attaching executed documents, an email asking four of the plaintiffs to sign documents, records concerning communications with the Office of the Director of Corporate Enforcement, and several emails about board documents required by Anglo Irish Bank. The judge also ordered disclosure of an email relaying questions raised during a 14 May 2010 telephone call with solicitors and a questionnaire he found was closely connected to that call. He said the call’s attendance note alone could give an incomplete and potentially misleading picture.
The order had qualifications. Document 139 was to be disclosed unless it was an unsent draft. Document 1155 was also to be disclosed unless it was an unsent draft. The judge said the plaintiffs could maintain privilege over document 1155 if it remained a draft attached to an email and subject to legal advice; if it was the final letter sent to the ODCE, it did not attract privilege. He directed disclosure of document 1156, a copy of an ODCE letter dated 19 December 2008.
The judge said disclosure could be ordered by close of business on 22 February 2019, subject to hearing from counsel. He noted that privilege could still be waived expressly or by implication at trial if a document was deployed in a way that justified further waiver. The judgment addressed the disclosure dispute; it did not determine the underlying proceedings.