The High Court refused Shannon Foynes Port Company’s application to reclaim privilege over a large number of legal documents it had already disclosed to two plaintiffs in discovery. The court also concluded that the plaintiffs were not entitled to further connected documents on the basis that the disclosed material had been deployed, because it had not been relied on and the company was understood not to intend relying on it at trial.
The proceedings concern an inquiry into allegations about the work of the plaintiffs, one of whom was the port company’s chief executive and a board member, while the other was a board member when the case began. They challenged aspects of how the inquiry committee was established and conducted. The judgment records that they did not dispute the board’s entitlement to investigate and that they denied wrongdoing. Their allegations about the inquiry and the company’s conduct remained matters for trial, not findings made in this discovery ruling.
The company said legal documents had been included by mistake in the unprivileged part of its discovery affidavit and sought to amend the affidavit and have the documents returned. The plaintiffs opposed the application, arguing that privilege had been waived. They also sought other connected documents, saying it would be unjust to disclose some privileged material while withholding related material.
Mr Justice Clarke applied a test that considered both whether the receiving solicitor realised a mistake had been made and whether a reasonable solicitor would have recognised the disclosure as mistaken. He accepted the receiving solicitor’s evidence that he had thought the disclosure was deliberate. Although the company’s solicitor said the documents had been included in the wrong part of the schedule by error, the judge found that a reasonable solicitor would not have concluded that the omission of privilege claims across so many varied documents was a mistake. The documents therefore could not be withdrawn from discovery.
The judge separately held that disclosure in discovery, without reliance on a document’s contents in court, did not amount to deployment. He said further connected documents could be required where a party relied on disclosed privileged material and there was a sufficient connection to make withholding the related material unjust.
Here, none of the disputed documents had been relied on at an interlocutory hearing. The judge inferred from the company’s position that it would be willing to undertake not to rely on the documents or their contents at trial. On that basis, he refused further discovery of connected documents. The ruling addressed these discovery applications; it did not determine the underlying allegations or the substantive action.