Supreme Court dismisses appeal to inspect solicitor documents, ruling privilege absolute without proof of fraud or waiver.

THE SUPREME COURT

Appeal No. 244/2007

Cross Appeal No. 249/2007

Fennelly J.

Kearns J.

Macken J.

BETWEEN

MICHAEL COLIN MCMULLEN

Plaintiff/Appellant

And

GILES J KENNEDY PRACTISING AS GILES J KENNEDY AND COMPANY SOLICITORS

Defendant/Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 17th day of December, 2008.

1. This is an appeal from a judgment of Murphy J in the High Court refusing the application of the appellant for inspection

of documents discovered in the second part of the first schedule of discovery, in respect of which legal professional privilege

is claimed.

2. This matter occurs in the context of a long-running saga of litigation involving the plaintiff and a number of other parties

including two firms of solicitors and a barrister (since deceased). The history of that litigation can be found in my judgment

in McMullen v McGinley [2005] 2 I.R. 445. Macken J also outlines it in some detail in the judgment she is about to deliver.

3. In the present proceedings the appellant sues a firm of solicitors, Giles J Kennedy & Co (hereinafter “the defendant”).

The action, as is explained in the statement of claim, arises out of an action for damages for negligence brought by the

appellant against his former solicitors, Kent, Carty & Co. The appellant’s complaint in that action was that he had been led

to accept a settlement of earlier litigation on the understanding that, if dissatisfied, he could resume and continue with the

action. The settlement provided for “liberty to apply.” When he sought to re-enter the proceedings, it was held that this did

not give him “liberty to re-enter.”

4. The plaintiff failed in the action against the solicitors, who had acted for him at the time of the settlement, Kent, Carty &

Co. Carroll J held that the solicitors had not been at fault. Rather, they had relied on counsel, the late Mr Noel Clancy. Mr

Clancy gave evidence in the action on behalf of Kent, Carty & Co and accepted responsibility. The decision of Carroll J was

upheld by this Court on appeal.

5. The plaintiff’s subsequent action against Mr Clancy also failed for reasons given in the judgment of this Court in

McMullen v McGinley, cited above.

6. The defendant acted for Kent, Carty & Co in their defence of the negligence claim against them. In the course of his

handling of the claim, he made a report in the form of a letter dated 17th May, 1989 to the underwriters. That letter, which

ran to seven pages, contained a paragraph which is the essence of the plaintiff’s claim in the present proceedings. It reads as

follows:

"On Friday, the 28th April, 1989, our Mr. Kennedy took the opportunity to have an unofficial without prejudice

word with Mr Clancy. He advised Mr Clancy as to what was happening to assess Mr Clancy’s attitude. Mr

Clancy advised that as far as he was concerned, the claimant did quite well and he would be in a position to give

evidence that the claimant was advised of the situation. We were aware, at the time of our discussion, that Mr

Clancy was acting for the claimant instructed by Messrs. O'Connors in respect of a rather serious motor accident.

Accordingly, it would appear as if Mr Clancy may still have some influence over the claimant. As a tactic, we

indicated to Mr Clancy that our client, the insured herein, wished to join him in the proceedings and we were not

keen to do so. This 'little chat' might provide an opportunity and incentive to Mr Clancy to dissuade the

claimant."

7. The circumstances in which that letter, a communication between a solicitor and his client’s underwriters, came to be

disclosed to the plaintiff are explained in my judgment in McMullen v McGinley. In essence, it formed part of a file of

papers handed in to court by counsel in the course of the hearing before McGuinness J of the plaintiff’s action against Mr

Clancy. The letter was not read by the judge and was not part of the evidence in those proceedings. The file of which it had

become part was handed in error to the appellant at the end of the hearing. The appellant sought to introduce it into

evidence on the hearing of the appeal in that case. That application was refused for reasons explained in my judgment in that

case.

8. In his statement of claim in the present action, the appellant refers to that letter and quotes the above paragraph. He goes

on to plead that the defendant “never varied the tryst he had obtained from Mr Clancy…” He refers to a statement of

counsel for Kent Carty & Co in this Court at the hearing of the appeal in that case that “he doubted if he could have

succeeded in resisting the complaint of [the appellant] without the evidence of Mr Clancy.” The statement of claim describes

the letter from the defendant as “graphic and disturbing.” The plaintiff seeks:

“A declaration that contrary to Law, Natural Justice and the Right of Access to the Courts The Defendant acted

improperly in putting to the Plaintiff’s Counsel “Incentives” to ensure by underhand, deceitful and coercive

means that the said Counsel, Mr Clancy, complied in the giving of privileged testimony against his Lay Client,

The Plaintiff, herein (whether or not the said Evidence is deemed to have been true).”

9. The plaintiff also claims damages under a number of headings:

a. Unlawful and improper interference in the just resolution of a of a well set out claim in Negligence in a matter

which in normal circumstances is well within the day to day knowledge of a qualified practitioner.

b. Damages and or punitive Damages for engaging in improper manipulation of Evidence which should not have

been given in the manner in which it was or not at all, to the complete detriment of the Plaintiff and the due and

apposite resolution of a Civil Claim in Negligence.

c. Damages for entering into a conspiracy which as an Officer of the Court and a Practitioner of Law and as an

Agent for his Clients’ Underwriters/Insurers, (Admiral Ireland), the Defendant would positively have been fully

aware to be a dangerous and manipulative arrangement.

d. Damages/costs and expenses incurred as a direct result of the said interference; these to include the Costs of

the Plaintiff’s own solicitors who brought the Action against Kent Carty, namely Collins Crowley and Co.

together with the Taxed Bills of Costs which the Defendant is presently using as a threat of Bankruptcy as

against this Plaintiff.

e. Damages for the distress and shame heaped upon this Plaintiff in losing his Action against his former Lawyers,

in whom he had placed such trust, the extreme worry of being threatened daily with a Hearing in Bankruptcy by

his Defendant with his Bills, which this Defendant was at all times fully aware had been attained fraudulently and

with the unfair advantage of the knowledge that as early as May 1989 the compliance of the Plaintiff’s former

Counsel, Mr. Clancy, had been achieved with “little chats”, “incentives”, and improper coercion.

f. General Damages for the complete disruption of the Plaintiff’s life and well being.

10. The entire of the plaintiff’s claim, therefore, is based on the contention that the defendant improperly sought to influence

the outcome of his negligence action against Kent Carty & Co by influencing Mr Clancy to give evidence in their defence

and that the evidence he would give would accept that he, Mr Clancy, rather than the solicitors were responsible for the

error in the settlement document.

11. By an order of 18th October 2001, the High Court (O’Caoimh J) struck out the appellant’s present claim. By an order

of 27th July 2005, this Court allowed the appellant’s appeal against that order. The appellant was allowed to proceed with

his claim.

12. On 6th July 2006, the Master made an order directing the defendant to make discovery of the following documents:

1. The Defendant’s litigation file in the proceedings in which he acted for Kent Carty

2. The Defendant’s letter to Admiral Ireland in May 1989 togther with any subsequent correspondence between the

Defendant and Admiral Ireland concerning the content of same or of any follow up contact between the Defendant and Mr

Clancy

3. Any document recording the communication by the Defendant of all or any part of the said letter (whether by letter or

conversation) to any person other than Mr Clancy prior to July 1999

4. Any correspondence or memoranda concerning evidence to be adduced on behalf of Kent Cart at the hearing in May

1992

13. The Defendant’s affidavit of discovery was sworn on 11th October 2006. The second part of the first schedule to the

affidavit lists documents 162 to 491 under the description:

“Letters, drafts and memorandum made prepared on a confidential Solicitor/ Client basis during the preparation

and defence of the proceedings High Court Proceedings, Michael Colin Geoffrey McMullen – Hugh A. Carty,

John P. Carty, Pamela Madigan and Rocca Caira practising as Kent Carty & Company, Solicitors, cases for the

opinion of counsel, opinions of Counsel and instructions to Counsel prepared and given in anticipation of and

during the progress of this action.”

14. The defendant, in his affidavit, claims privilege in respect of these documents on the “grounds that same consist of

privilege (sic) communications between myself and my client, Counsel and witnesses, Counsel’s advice on drafts prepared

in connection with and for the purposes” of the plaintiff’s action against Kent Carty & Co.

15. It should be noted, however, that the letter of 17th May 1989 is expressly admitted on the face of the defence, though

its contents are not admitted. Murphy J ordered inspection of that document. The defendant has withdrawn its appeal

against that order. Thus, that document is available to the plaintiff insofar as discovery makes it so.

16. By notice of motion dated 9th March 2007, the plaintiff sought full and unimpeded access to all the documents listed in

the first part of the second schedule. In his grounding affidavit, referred to the letter of 17th May 1989. He said that it

confirmed his “worst fears that pressure and threats had been applied to his counsel ro give evidence at all and indeed the

evidence which he had averred.” He continued:

“When Mr Kennedy met Mr Clancy in April 1989…..Mr Clancy was still in your deponent’s employ and for Mr

Clancy to agree to act against his Client’s interests and in fact give a version of the events in 1985, though

accepted in Primary Evidence in the High Court by Ms. Justice Mella Carroll, was entirely new to your

Deponent, would per se indicate coercion.”

17. In the same affidavit, as in his argument before the High Court and this Court the Plaintiff maintained that there is an

“irreconcilable conflict” between the evidence given by both Ms Pamela Madigan and Mr Carty and the contents of the

privileged section of the affidavit of discovery.

18. Murphy J held that no basis for fraud or illegality or for a claim based on a conspiracy or arrangement had been

established. He held that privilege had been waived in respect of the letter of 17th May 1989. Otherwise, he upheld the

claim of privilege. Before ruling finally, he inspected three documents which appeared to be connected with the letter of

17th May. He found no evidence of undue influence, improper incentives and/or coercion to induce the plaintiff’s counsel to

collaborate or undertake to give evidence in the action against Kent Carty & Co.

19. The essence of the case for the appellant on this appeal is that he has produced evidence that privilege is being used to

hide and cover up unlawful and, as he says “nefarious activities.” Those activities are very clearly specified. He says that Mr

Clancy, to his own total surprise, gave evidence against him in the negligence action brought by him against Kent Carty &

Co. That evidence defeated his claim. It was procured by the actions of the defendant, who conspired and agreed with Mr

Clancy or offered incentives to or brought pressure to bear on Mr Clancy to give that evidence. That is the gist of his action.

20. In support of his application to be allowed to inspect otherwise privileged documents, he relied in essence on the

existence of an irreconcilable conflict between the evidence given respectively by Hugh A. Carty and Pamela Madigan in the

action brought by the plaintiff against Mr Clancy. It was the plaintiff who called these witnesses. The plaintiff asked Ms

Madigan whether she had at any stage spoken or sought to influence the testimony that Mr Clancy was giving. She

answered: “At no stage did I speak with Mr Clancy” and that she had had “no contact with Mr Clancy.” Mr Carty was

asked whether he was aware of any attempt to get Mr Clancy to give evidence in a particular way that was favourable to his

office. He answered:

“I wouldn’t seek, nor do I believe would Mr Clancy make any effort if I did seek, to assist me in that…….There

is no doubt that I at no stage and I would know, nor did anybody in my office, ever contrive to get Mr Clancy to

do anything. If Mr Clancy gave evidence I would expect he wopuld give truthful evidence and I have little doubt

that he did.”

21. When asked whether he had discussed the professional negligence action against Kent Carty, he replied: “Never at any

stage.”

22. The irreconcilable conflict to which the appellant refers is between that sworn evidence and the contents of the

privileged section of the affidavit of discovery. He says that the items as described show that there were at least twenty nine

contacts between the defendant or his office on the one hand and Kent Carty & Co on the other. He points very specifically

to two items numbered 324 and 325 both dated 28/04/89. No 324 is described as: “Att. Noel Clancy.” No 325 is described

as “Att. Pamela Madigan.” It should be noted that 28th April 1989 is the date of the conversation between Mr Kennedy and

Mr Clancy, as recorded in the letter of 17th May 1989. That letter does not suggest that Ms Madigan was party to the

conversation.

23. At this point, it is important to note that the “irreconcilable conflict” to which the appellant refers is based essentially on

a suggestion that the evidence of both Ms Madigan and Mr Carty was false and untruthful. Neither of those persons is party

to or on notice of the present application. Hence they have no opportunity to reply to these serious allegations that they gave

perjured evidence. Even more pertinent is the fact that neither the Plenary Summons nor the statement of claim in the action

allege that either of these persons were party to or privy to the acts alleged against the defendant.

Privilege

24. It is not contested, nor could it be, that the documents listed in the first part of the second schedule are the subject of

legal professional privilege, for the very reasons given in the description given to them in the affidavit od discovery. The

context is somewhat different from the normal situation, where provilege is claimed in respect of documents generated in the

subject litigation. Here they came into existence in earlier litigation in which the solicitor, who is now the defendant, acted

for former clients.

25. It follows that the privilege belongs to the former clients, not the solicitor. Neither Kent Carty & Co nor any of the

partners in that firm are on notice of this application. In my view, the Court should not make any order impinging on the

rights of those parties without hearing them. However, I believe that the present appeal may be dismissed on another basis.

26. Finlay C.J. in his judgment in Smurfit Paribas v A.A.B. Export Finance [1990] 1 I.R. 469 at 476 identified the purpose

and object of legal professional privilege as being to satisfy “the requirement of the superior interest of the common good

in the proper conduct of litigation which justified the immunity of communications from discovery in so far as they were

made for the purpose of litigation as being the desirability in that good of the correct and efficient trial of actions by the

courts.”

27. The decision of this Court in Fyffes plc v D.C.C. plc and others [2005] 1 I.R. 59 approved the dictum of Lord Bingham

C.J. in Paragon Finance v. Freshfields [1999] 1 W.L.R. 1183, at p. 1188:-

“The nature and basis of legal professional privilege has been often and authoritatively expounded … At its root lies the

obligation of confidence which a legal adviser owes to his client in relation to any confidential professional communication

passing between them. For readily intelligible reasons of public policy the law has, however, accorded to such communications

a degree of protection denied to communications, however confidential, between clients and other professional advisers. Save

where client and legal adviser have abused their confidential relationship to facilitate crime or fraud, theprotection is absolute

unless the client (whose privilege it is) waives it, whether expressly or impliedly." (Emphasis added).

28. The Court has been referred to the decision of O’Sullivan J in Crawford v Treacy [1999] 2 I.R. 171, where the

headnote refers to “moral turpitude.” It suffices, for present purposes to restate the general proposition that privilege cannot

be permitted to cover up crime or fraud. I have no difficulty in accepting that an agreement or conspiracy whereby the

defendant, the late Mr Clancy and the partners in Kent Carty & Co agreed to procure the giving of false evidence by Mr

Clancy would be illegal and that legal professional privilege cannot conceivably be used to prevent an affected party from

having access to documents tending to prove its existence.

29. In my view, the appellant has not been able to point to any evidence whatsoever in support of such a contention. I need

hardly repeat that the content of Mr Kennedy’s letter suggests improper behaviour on his part. The appellant has drawn the

attention of the Court to remarks made to that effect by members of this Court at earlier hearings. That misbehaviour

appeared to consist, however, in seeking to induce Mr Clancy to persuade his client (the present appellant) to withdraw his

claim against Kent Carty & Co by threatening him with the possibility of being joined himself as a party to the action. It

does not lend any support to the suggestion made by Mr McMullen on the present appeal that the defendant was party with

Ms Madigan and Mr Carty to an attempt to influence Mr Clancy as to the content of the evidence he would give in the

action. As I have already stated, the appellant makes no such allegation against either Ms Madigan or Mr Carty in his

pleadings. He has given them no notice of his intention of doing so in the course of the present application or of his wish to

encroach on the legal professional privilege which is theirs. Nonetheless, the central plank of his argument before this Court

on the hearing of the appeal was that there was such conflict between the evidence given by those two persons in the course

of the earlier High Court proceedings and the contents of the affidavit of discovery that their evidence was false.

30. In my opinion, the appellant has come nowhere close to establishing that proposition.

31. I would dismiss the appeal.