The High Court refused Anne Kurtz’s application for an order requiring Dunnes Stores to disclose witness statements concerning an alleged trip and fall at its Blanchardstown Shopping Centre premises on 29 December 2010.
Ms Kurtz is suing the retailer over the incident. Dunnes had disclosed an accident report form dated the day of the alleged fall but withheld an internal investigation form dated 8 March 2014 and witness statements dated 29 December 2010, claiming the documents were created in contemplation of litigation and were protected by litigation privilege. Her application sought disclosure of the statements.
The court considered four questions relevant to litigation privilege: whether litigation was reasonably apprehended when the documents were created; whether they were created for the purpose of the litigation; whether litigation was the dominant purpose if there were multiple purposes; and whether the party claiming privilege had proved it applied.
A Dunnes manager’s affidavit said the withheld documents were created for the purpose of the litigation or while it was contemplated or underway. That evidence was uncontroverted. The judge found, on the evidence before the court, that litigation was reasonably apprehended when the statements were made and that they were created for the purpose of the action. There was no evidence they had been created for another purpose, and the affidavit evidence discharged Dunnes’ burden of proving privilege.
Ms Kurtz’s solicitor argued that the statements should be disclosed because Dunnes had disclosed the accident report form and the statements might have been needed to complete it. The judge rejected the premise that disclosure of part of a document necessarily requires disclosure of related material. The report form did not indicate that the statements formed part of it, let alone an inseparable part.
The court therefore refused the disclosure relief sought. The judgment addressed that application in the ongoing civil action; it did not determine the merits of Ms Kurtz’s fall claim.