The Supreme Court has rejected Michael Colin McMullen’s attempt to inspect hundreds of legally privileged documents held by solicitor Giles J Kennedy from earlier litigation involving McMullen’s former solicitors.
The application arose from a long-running series of cases. McMullen had previously sued Kent, Carty & Co for negligence after an earlier settlement prevented him from resuming litigation in the way he said he had expected. That negligence action failed after barrister Noel Clancy gave evidence accepting responsibility for the relevant advice.
Giles J Kennedy & Co had represented Kent, Carty & Co. McMullen later sued Kennedy, relying heavily on a May 1989 letter in which Kennedy recorded an unofficial conversation with Clancy and described a tactic intended to encourage Clancy to persuade McMullen not to pursue his claim.
During discovery in the later action, Kennedy claimed legal professional privilege over documents numbered 162 to 491, including correspondence, memoranda, counsel’s opinions and litigation material. The High Court upheld that claim apart from the May 1989 letter itself, which was made available to McMullen.
On appeal, McMullen argued that privilege was being used to conceal unlawful conduct. He relied principally on what he said was an irreconcilable conflict between evidence previously given by members of Kent, Carty & Co and entries in the discovery schedule showing contacts involving Kennedy’s office.
Mr Justice Fennelly accepted the legal principle that privilege cannot protect communications used to facilitate crime or fraud. If documents tended to prove an agreement to procure false evidence, privilege could not be invoked to conceal them.
But the court found no evidence supporting such a conspiracy. The 1989 letter could suggest improper pressure intended to persuade McMullen to withdraw his claim, the judge said, but it did not support an allegation that Kennedy, Clancy and members of Kent, Carty & Co agreed to manufacture false testimony.
The Supreme Court therefore dismissed the appeal, leaving the remaining privileged documents protected from inspection.