The High Court has ordered the Electricity Supply Board (ESB) to allow University College Cork – National University of Ireland to inspect documents about flooding on the River Lee, after rejecting the ESB’s claims of litigation privilege over them.
The dispute arose in proceedings issued in January 2012. The university is seeking damages for alleged negligence, breach of duty and nuisance, and under the rule in Rylands v Fletcher, in connection with a flood on the night of 19 November 2009. The judgment addressed competing applications about inspection and privilege, not the underlying claim for damages.
The court found the ESB had not shown that threatened litigation was the dominant purpose for creating two emails and statements prepared after the 2009 flood. The judge concluded that preparing for an ESB presentation to a parliamentary committee was at least an equal purpose for a station manager’s statement sent in February 2010. For statements sent in March 2010, the court found that supplying factual accounts to ESB International for its flood report was an equal purpose to preparing for litigation. The judge said the ESB could not claim litigation privilege over the emails and attachments, and ordered inspection of the March attachments. Three of the documents had already been disclosed to the university by mistake; the judge said it was unnecessary to decide the consequences of that disclosure.
The court also considered reports on floods in 1997 and 2000. Although litigation may have been anticipated when they were prepared, the judge found the reports appeared to have been made in the normal course to record the events. The ESB had not proved that litigation was their dominant purpose, so the university was entitled to inspect them.
A separate report concerning a 1990 flood had been prepared for Circuit Court proceedings brought by Dennis Martin Scully against the ESB. The judge declined to follow earlier High Court decisions that treated litigation privilege as continuing indefinitely. She held that litigation privilege does not automatically continue after the proceedings for which a document was created, unless the later proceedings are closely related. She found no substantive or close connection between Scully’s claim and the university’s case over the 2009 flood, and ordered inspection of the report.
The court granted the inspection order sought by the university and dismissed the ESB’s motion dated 4 December 2013. It did not decide the university’s substantive damages claim.