The High Court ruled that an accidentally disclosed solicitor’s attendance docket remained protected by legal professional privilege and could not be used by the second and fifth defendants in the ongoing Corrib pipeline proceedings. The court found the disclosure was a mistake, not a decision to waive privilege, and that a reasonable solicitor would have recognised the document as privileged.
The application concerned a docket dated 10 June 2005, recording a consultation between Shell E. and P. Ireland Ltd and its solicitors. The plaintiff’s solicitor said copies of three attendance dockets had inadvertently been included in an exhibit to an affidavit filed in June 2005. The docket was created for legal advice during ongoing proceedings, and both sides accepted it was privileged when created.
The dispute arose from proceedings over access to lands at Rossport, Co Mayo, for works connected with the Corrib gas pipeline. In April 2005, the High Court had granted an interlocutory injunction restraining the defendants from obstructing Shell’s entry onto the pipeline corridor, subject to stated conditions. The second defendant was later committed for contempt and remained in prison until the injunction was discharged in September 2005.
The second and fifth defendants argued that privilege had been waived, including because excerpts appeared in a newspaper. They also submitted that the docket supported their allegations that Shell had pursued the injunction and committal applications for an improper purpose. The judge rejected those claims on this application, finding the docket did not support an abuse-of-process allegation and that the evidence did not establish a contrived urgency or improper motive. He did not determine the terms or validity of the Ministerial consent for the pipeline works.
The court found that the docket had not entered the public domain merely because disjointed excerpts were published. Shell and its solicitors had not knowingly disclosed it, and the judge found they asserted privilege promptly once they apprehended that the defendants possessed it and might use it. He also found the document’s heading, form and contents made the error apparent, particularly to a solicitor.
The court adopted a protective approach to privilege and restrained use of the docket in the proceedings. The ruling addressed the privilege application; it did not determine the underlying pipeline dispute or the defendants’ counterclaim allegations.