The High Court has refused the defendants’ application for further and better discovery in a commercial case involving James Patrick Flannery, Lexington Services Limited and several other parties. The application concerned two categories of documents and related ancillary orders.
Category 47 sought documents about the preparation of Lexington Services Limited’s audited accounts for June 2013 and June 2014, including records relating to payments from the first named defendant to the company, the auditor’s files and certain communications. Category 56 sought documents about the legal and beneficial ownership of an interest to be acquired by Sheaf-2 Limited under a compromise agreement, including owners’ nationalities and countries of residence.
The plaintiffs resisted further discovery on grounds including legal advice privilege and litigation privilege. The defendants challenged the privilege claimed over communications involving Ellen O’Donohue, the first named plaintiff’s sister, on the basis that she was not a lawyer.
Justice Brian J. McGovern accepted affidavit evidence from solicitor Andrew Lenny that O’Donohue was a qualified accountant who acted as an agent for the first named plaintiff in dealings with his legal advisers concerning the litigation. The judge refused further discovery insofar as the application concerned communications between O’Donohue, the first named plaintiff and his advisers.
The judge also accepted that the auditor’s working papers were not within the procurement of the client. Lenny’s affidavit said the plaintiffs’ accountant had confirmed that he had not released the working papers to the clients and, after reviewing his files, found no documents evidencing or relating to the specified payments. The court refused further discovery on that issue.
On litigation privilege, the court found that the plaintiffs had established a legitimate claim over communications with the relevant third parties, applying from 26 April 2013. The judgment records that no privilege claim was maintained over correspondence from Barry Forrest, Adam Lewinsky or William Bell, despite a contrary assertion made for the defendants. The application was refused under this heading too.
The judgment was delivered on 4 November 2015. The case was listed for hearing on 10 November 2015, and the discovery application had been heard on 23 October. The court’s order was to refuse the defendants’ application for further and better discovery; it did not determine the underlying claims.