The Court of Appeal has dismissed Dunnes Stores’ appeal against an order allowing Charmaine Colston to inspect documents prepared after a 2013 accident at the company’s premises in Portlaoise. The court held that Dunnes had not provided enough evidence to establish litigation privilege over the documents.
The appeal concerned a High Court order made on 9 July 2018. It required Dunnes to disclose documents over which the company had claimed privilege in an affidavit of discovery. The Court of Appeal’s judgment, delivered by Ms Justice Irvine on 28 February 2019, upheld that order.
Ms Colston’s personal injury claim arises from an alleged fall at Dunnes’ Green Road premises on 7 April 2013. She says her shoe became caught in the flooring and that she suffered injuries to her lower back, sacrum and coccyx. Dunnes denies liability and denies that her shoe became trapped as alleged. It also pleaded that, if a hazard existed, Ms Colston was contributorily negligent.
The disputed documents were four witness statements and an internal investigation form, all dated the day of the alleged accident. Dunnes claimed they had been prepared in contemplation of legal proceedings. The High Court permitted Ms Colston to inspect them after finding that Dunnes had not shown why litigation was reasonably anticipated or that preparing for litigation was their dominant purpose.
The Court of Appeal said a party claiming litigation privilege must provide evidence that lets the court assess objectively why documents were created and whether litigation was reasonably anticipated at the time. A bare statement in an affidavit that documents were prepared in contemplation of legal proceedings was insufficient. Where documents served more than one purpose, the evidence must also show that litigation was the dominant purpose.
Dunnes argued on appeal that its corporate policy was to investigate every injury in anticipation of litigation, and that accidents on its premises usually led to claims. The court noted that this policy had not been established by sworn evidence before the High Court. It said a suitably qualified witness might have supported such a claim with evidence about the policy, how it operated and how it applied to these documents. But the court made no concluded finding on that possibility: its comments on the policy were obiter, and the appeal was decided on the evidence before the High Court.
The court affirmed that documents created before a claim or proceedings can still attract litigation privilege, but held that Dunnes had not met the burden of proving privilege in this case. It dismissed the appeal, leaving the High Court inspection order in place. The decision addressed disclosure of the specified documents; it did not determine liability for Ms Colston’s alleged injuries.