Judgment: 2009-03-04 · Court archive

Supreme Court protects legal advice from disclosure in Tallaght Square development dispute

Supreme Court ·

Who, what, where, when and why

Who
  • Redfern Limited
  • Larry O'Mahony
  • Thomas McFeely
  • Liam Carroll
  • Tafica Limited
  • Aifca Limited
  • Mr Justice Finnegan
What

Supreme Court protects legal advice from disclosure in Tallaght Square development dispute

Where

Places mentioned in the report

  • The Square
  • South Dublin County Council
  • Supreme Court
When

Judgment:

Why

Reasons reported in the judgment

Mr Justice Finnegan rejected that argument. He held that disclosure does not automatically destroy privilege. Limited disclosure to parties sharing a common interest can remain confidential. The court therefore upheld the refusal to order inspection of Redfern's opinion.

The Supreme Court has refused competing attempts to obtain privileged legal advice in a commercial dispute linked to the proposed redevelopment of a car park at The Square in Tallaght.

The proceedings arose from agreements intended to enable development of the car park. Redfern Limited sought enforcement of a 2005 agreement under which Larry O'Mahony and Thomas McFeely were to transfer their interests in Lowe Taverns (Tallaght) Limited. Redfern later alleged that Liam Carroll and Tafica Limited interfered with that agreement by entering a separate transaction involving Aifca Limited. Carroll and Tafica denied intentionally inducing any breach.

Two document-inspection disputes reached the Supreme Court.

First, Carroll and Tafica sought a senior counsel's opinion obtained by Redfern. They argued that Redfern had waived legal professional privilege by providing the opinion to Thomas Dowd, connected with Square Management Limited, and solicitor Eoghan Clear, acting for South Dublin County Council.

Mr Justice Finnegan rejected that argument. He held that disclosure does not automatically destroy privilege. Limited disclosure to parties sharing a common interest can remain confidential. The court therefore upheld the refusal to order inspection of Redfern's opinion.

The second issue concerned legal advice obtained by Carroll and Tafica. Their defence pleaded that they had been “expressly cautious” to structure their agreement so that it would not breach Redfern's contractual rights. Redfern argued that this put their state of mind in issue and implicitly waived privilege over the advice they had received.

The Supreme Court disagreed. It held that Irish law does not recognise a general rule that privilege is lost merely because legal advice may have influenced a party's state of mind. Privilege can be waived expressly or implicitly, but fairness to an opponent does not itself create a general waiver.

The High Court order requiring inspection of Carroll and Tafica's legal advice was therefore set aside. The ruling dealt only with document privilege, not the underlying contractual and interference claims.

Read the original court judgment

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