The High Court refused an application by Murrays Europcar Limited to inspect a report obtained by Ryanair, ruling that privilege in the report had not been waived. The decision concerned inspection of the report, not the underlying dispute over competitive pricing.
Ryanair Limited and Ryanair Direct Limited had previously been allowed to reinstate their claim against Murrays Europcar, subject to conditions imposed by the court in February 2009. Those conditions included lodging €485,622, permitting inspection of discovered documents and paying half the costs incurred to that point.
The reinstatement followed earlier failures to meet discovery and inspection deadlines. An order dismissing the claim against Murrays Europcar for failure to comply with an inspection order was made in November 2007 and amended in April 2008. The claim was later reinstated by MacMenamin J. on 12 February 2009, subject to the stated conditions.
In an affidavit supporting reinstatement, a Ryanair representative denied that the company was trying to hinder Murrays Europcar’s efforts to litigate. The affidavit said Ryanair had obtained a report from Patrick Massey, described as a consultant and former member of the Competition Authority, which was said to support Ryanair’s case that Murrays Europcar had failed to provide a competitive pricing policy. It also said Ryanair was anxious to bring the matter to trial.
Murrays Europcar applied to inspect the report, arguing that privilege had been waived because it had been deployed in the reinstatement application. Mr Justice Cooke considered authorities stating that privilege may be waived when privileged material is deployed in court, but that merely referring to a document—even while relying on it for some purpose—is not enough. The relevant question was whether the party relied on the document’s contents, rather than its effect.
The judge found that the affidavit referred to the existence of a supportive report to answer the accusation that the claim was obstructive or vexatious. It did not mention the report’s contents or basis, or rely on any particular advice or expertise in it. The court therefore concluded that privilege had not been waived and that an inspection order for the report need not be granted.