The Supreme Court has ordered an in-camera review of selected solicitor files in litigation brought by Michael Colin Geoffrey McMullen against solicitor Giles J. Kennedy, while stopping short of directing that the documents be handed to Mr McMullen.
Ms Justice Macken held that the court should inspect a limited group of documents over which legal professional privilege had been claimed. The purpose is to determine whether any contain relevant material falling within the exceptional circumstances where maintaining privilege could be contrary to the interests of justice.
The application arose from litigation stretching back about 20 years. Mr McMullen had originally sued Charleville Estate Company over lands in County Offaly. After that action was settled on terms he later disputed, he unsuccessfully sued his former solicitors, Kent Carty & Co., and later the estate of his former senior counsel, Noel Clancy SC.
The present proceedings concern Mr McMullen's allegation that Mr Kennedy improperly sought to influence Mr Clancy to give evidence against him in the negligence proceedings against Kent Carty. Mr Kennedy denies improperly securing Mr Clancy's cooperation or entering any such arrangement.
Central to the dispute is document 174, a 1989 report by Mr Kennedy to insurers. It recorded an unofficial conversation with Mr Clancy and referred to the possibility that Mr Clancy might persuade Mr McMullen to step back from his claim. The High Court had ordered that document disclosed, and Mr Kennedy withdrew his appeal against that ruling.
The Supreme Court emphasised that it was expressing no view on whether Mr McMullen's allegations were true. However, it held that an allegation involving an attempt to procure false evidence could, if established, amount to dishonesty or moral turpitude. In such exceptional circumstances, privilege cannot automatically prevent investigation.
The court therefore ordered Mr Kennedy to furnish specified documents from around the 1989 contact and the 1992 High Court hearing for judicial inspection. Any later disclosure to Mr McMullen would depend on what that review reveals and on giving the holder of the privilege an opportunity to be heard.