The High Court has ruled that an email from Ulster Bank Ireland DAC’s solicitors to loan servicer Link ASI Ltd. does not attract legal professional privilege and is discoverable. The ruling resolved a preliminary issue in the bank’s ongoing motion for summary judgment against Dermot Brennan; it did not determine that motion or the underlying dispute.
The email, dated 22 October 2019, concerned a proposed change of barrister. It said that Promontoria (Aran) Ltd. (PAL)’s barrister in the case had to take leave and had asked the solicitors to instruct another barrister. The solicitor proposed a replacement and asked Link employee Thomas Tracey to confirm that the instruction could be made that day.
Brennan argued that the email raised a question about who was the client and who directed enforcement of the loans and related securities. He said the bank’s affidavit evidence maintained that it retained the legal interest in the loans, while PAL held only a beneficial interest, and that the bank made enforcement decisions. Brennan contended that the email appeared inconsistent with that account and could bear on his defence. Those points were his submissions; the court did not decide the underlying enforcement dispute.
The bank claimed litigation privilege, saying the email was sent for the purpose of active litigation and concerned a tactical decision about counsel. It also argued that the document had been disclosed inadvertently and that Brennan’s application would not advance his case. The court considered the competing arguments under the High Court decision in *Miley v. Flood*.
Justice Creedon held that the email could be considered on its own, separately from the wider email chain. She found that it raised a question about client identity and that the information at issue was a collateral fact, rather than a communication made to obtain legal advice during active litigation. The court held that the principles in *Miley* applied, including its general rule that client identity is not protected by privilege, subject to limited exceptions. The bank had not argued that either exception applied.
The court also rejected the suggestion that Brennan’s application was brought only to delay or obscure the issues. It noted that the bank had had an opportunity to respond to his request for an explanation, and accepted that the confined nature of summary judgment proceedings limited his options.
The preliminary issue was therefore determined in Brennan’s favour: the email was not privileged and was discoverable. The court reserved his costs of the application to the hearing of the action. The substantive summary judgment motion remained unresolved in this ruling.