The Court of Appeal has partly allowed an appeal over how defendants must describe documents for which they claim legal privilege, while dismissing a separate appeal against an expanded review process in litigation brought by Irish Bank Resolution Corporation Limited (in special liquidation).
In a judgment delivered by Mr Justice Mahon on 29 April 2015, the court considered two orders made by the High Court concerning inspection of documents by court-appointed receivers Declan Taite and Sharon Barrett. The underlying proceedings include IBRC’s claim that the personal defendants placed assets beyond the receivers’ reach. That remains an allegation in the substantive litigation.
The first appeal concerned an order requiring the defendants to provide the subject headings of communications and the names of attachments and documents over which they claimed privilege. The defendants argued that this could disclose privileged content. The receivers said the descriptions supplied so far were often too vague to let them assess the claims.
The Court of Appeal accepted that requiring headings and attachment names carried a real risk of revealing privileged material. But it did not simply set aside the disclosure requirements. It directed the defendants to provide a meaningful narrative for each document over which privilege was maintained, with as much detail as possible without infringing the privilege claimed. The court said descriptions should identify the document’s date and, for correspondence, at least a generic category of correspondent. It also ordered the solicitor responsible for advising on discovery to swear an affidavit confirming they had inspected each document claimed to be privileged and considered it properly categorised.
The court noted that concerns and suspicions about possible misuse of privilege did not prove deliberate concealment. It said the receivers could apply to the High Court for a declaration that privilege should be denied over particular documents on stated grounds of abuse or dishonesty.
The second appeal challenged a High Court order allowing the receivers, up to four personnel from Duff and Phelps, and up to ten people from Arthur Cox Solicitors to inspect documents the defendants had classified as non-relevant. The defendants argued that the High Court could not alter an inspection process set by the Supreme Court, and that the process had been agreed between the parties.
The Court of Appeal held that the High Court retained jurisdiction to manage and vary the inspection process where practical difficulties threatened delay. It dismissed the second appeal and affirmed the expanded inspection arrangement. The judgment records that, over about six months, the receiver reviewed 5,458 of 126,761 documents classified as non-relevant; the receivers said 75 of those reviewed were in fact relevant. That classification dispute was described in the context of the appeal, not resolved as a final finding on every document.