The High Court has refused an application by Domhnall Mac A’Bhaird to inspect documents over which the Commissioners of Public Works in Ireland claimed legal professional privilege in a dispute about a property sale.
The judgment, delivered by Mr Justice David Keane on 6 February 2015, concerns discovery in the plaintiff’s action for specific performance. The Commissioners admit an agreement to buy commercial or industrial premises in Glanmire, County Cork, but say the plaintiff did not complete within the period allowed by a completion notice. They say they elected to rescind the sale and counterclaim for the return of their deposit. Those issues were not decided in this application.
The disputed documents were emails between the Commissioners and the Chief State Solicitor’s Office (CSSO) on 2, 3 and 4 January 2013. Their discovery schedule described some as instructions to proceed with the purchase. The Commissioners claimed both legal advice privilege and litigation privilege.
The plaintiff argued that instructions should be distinguished from legal advice, and that describing the emails as instructions to proceed with the purchase had waived privilege. He also challenged whether litigation privilege had been clearly claimed. The judge inspected the documents under Order 31, rule 20(2) of the Rules of the Superior Courts.
Justice Keane found that the documents could attract both forms of privilege and that the claim had been made out. He said communications made to seek or obtain legal advice could include the client’s instructions on which that advice was based. He also found that the descriptions in the discovery schedule and a reference in correspondence to possible rescission did not amount to waiver in the circumstances. The judge noted that the descriptions went beyond what the documents contained and that the limited disclosures did not deploy the privileged material in the litigation.
The judgment left open whether a deliberate attempt to use selected contents of a privileged document at trial could raise a waiver issue then. The court also rejected the argument that litigation could not have been in contemplation while the parties were trying to complete the transaction: legal advice could address the possibility of litigation if completion failed.
The plaintiff’s application was refused. The ruling determined the privilege dispute over the listed documents, not the merits of the underlying claim or counterclaim.