The High Court has ordered the Irish Aviation Authority to disclose five documents to Paul McMahon in his defamation action, after finding that legal professional privilege did not apply to them. The court upheld the authority’s privilege claims over the other disputed documents it reviewed.
Mr McMahon is seeking damages over statements in a report issued by the authority on 18 August 2014, following an investigation into an incident in which a parachutist was injured after landing outside the designated drop zone. The judgment noted a dispute over whether the report was a draft or final version, but said that question did not need to be decided in this application.
An order for discovery was made on 8 February 2016. The authority’s affidavit of discovery, sworn on 5 April, claimed legal professional privilege over 88 documents. Mr McMahon challenged the privilege claim for 39 of them.
His solicitor argued that the withheld material could show the authority’s intentions and help establish whether a safety investigation concerning Mr McMahon took place after 25 July 2013. The solicitor alleged that the privilege claim frustrated the plaintiff’s case and raised the possibility of a cover-up. Those were the plaintiff’s submissions, not findings by the court.
The authority said the disputed material consisted largely of confidential communications with its in-house and external solicitors, made to seek or provide legal advice. The court reviewed the documents. It found that privilege had been correctly maintained over the challenged material except for documents numbered 8, 22, 42, 45 and 59.
The exceptions included an email suggesting a meeting to discuss editing (document 8; the attached draft report remained privileged), emails that merely passed on responses to the draft report (document 22), internal emails about finalising the investigation report that did not seek or give legal advice (document 42), an email about the purpose of a meeting with the authority’s external solicitors (document 45), and emails asking about and responding to whether a meeting was wanted (document 59).
The court directed the authority to furnish copies of those five documents to Mr McMahon’s solicitor within 48 hours, citing the imminent hearing date. The ruling concerned the privilege dispute within the discovery process; it did not decide the defamation claim or determine whether the alleged safety investigation or cover-up occurred.