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14 August 2007
A recent High Court decision(1) held that where a solicitor's attendance docket is inadvertently disclosed to another party during the conduct of litigation, in circumstances where the other party would have realized that the attendance docket had come to it in error and that the information contained therein was privileged, then privilege is not waived. The court further held that where some disjointed excerpts of the docket subsequently appear in the national press, it does not mean that the document has entered the public domain. Privilege may be lost where the party inadvertently disclosing the docket is guilty of moral turpitude or impropriety in the prosecution of its claim, but this was not found to be the case here.
This high-profile litigation concerns the Corrib Gas Pipeline, which links gas fields off the west coast of Ireland with an onshore refinery. The pipeline has been the subject of much controversy, with a number of locals claiming that the pipeline is environmentally unsound and endangering their health. Shell obtained orders against various individuals preventing them from obstructing the construction of the pipeline; when those orders were ignored, the individuals concerned were committed to prison for contempt on an application by Shell.
The solicitor for Shell inadvertently included copies of attendance dockets as part of a book of correspondence between the parties in an exhibit to an affidavit to ground the application for the attachment and committal of five persons, including one of the defendants to these proceedings. The mistake came to the attention of the plaintiff's solicitors after a journalist from the Irish Times contacted the plaintiff with a view to obtaining its comments in relation to some of the matters raised in the attendance notes. The solicitor for the plaintiff immediately wrote to the defendant's solicitor asserting privilege over the attendance notes.
The court found as matters of fact that:
The defendant argued that (i) the privilege was lost by the subsequent publication of excerpts of the attendance docket in the Irish Times, and (ii) the plaintiff was not entitled to claim privilege over the attendance docket where that document revealed conduct on the part of the plaintiff which indicated a certain moral turpitude on its part concerning the matter and the manner of its obtaining the order for committal against the defendant.
The court stated that the approach that should be adopted where a privileged document has been disclosed by inadvertence and a party seeks to restrain its use has not been directly considered in any previously reported decision by the Irish courts. Having reviewed a number of English, Australian and Canadian authorities, the court noted that, in summary, the courts in England have taken the approach that privilege is not necessarily waived or lost by reason of inadvertent disclosure, and that a party can restrain the use of a privileged document if:
He noted that the courts in Canada and Australia take a more protective (and in the court's view, more correct) approach, whereby a court will restrain use of a privileged document that was disclosed by inadvertence even if it would not have been obvious to the opposing party that the mistake had been made. This distinction did not matter in the present case as the court found that it would have been immediately apparent to the solicitor for the defendant that the attendance docket was privileged and had been disclosed by mistake.
In those circumstances the court was satisfied that, on the balance of probabilities, a reasonable solicitor would have realized that the attendance docket had come to him or her in error, and that information was privileged and was advice clearly sought or given during the course of legal proceedings.
The court then considered the defendant's argument that the plaintiff should not be entitled to claim privilege over the attendance docket, as its contents demonstrated that in bringing the application for attachment and committal the plaintiff was motivated by a desire to exert pressure, influence and domination over the defendant and his lands in County Mayo so as to prevent him from questioning the right of the plaintiff to carry out the works and the safety of the proposed pipeline. The court found that privilege can be lost in certain circumstances where the person seeking to rely on privilege has been guilty of fraud, dishonesty or moral turpitude.(2) Applying this principle, the court found that the case for 'piercing the privilege' in this way was not made out. Rather, the court found that the attendance docket did no more than reveal that the plaintiff had incurred substantial expense in bringing the oil pipeline project to the stage it was then at and quite properly was pursuing the application for attachment and committal of the defendant in order to avoid any further delays and expense.
This is the first reported decision in Ireland considering the principles to be applied when a privileged document has been disclosed by inadvertence and a party seeks to restrain its use. The court's comments, although made in passing, suggest that Ireland may take the more expansive approach adopted in jurisdictions such as Canada and Australia that the use of privileged documents which are inadvertently disclosed will be restrained even where it is not obvious to the party to which the documents are disclosed that the documents were disclosed by inadvertence and were of a type that would attract privilege. The reported English decisions, which were reviewed quite extensively by the court, suggest that it must be apparent to the party to which the document is disclosed that the disclosure was the result of an obvious mistake before an injunction will be granted restraining that party from making use of the document in the proceedings.
Unfortunately, the judgment does not analyze in any great detail the defendant's argument that the privilege was lost or waived by the publication of excerpts of the docket in the Irish Times. The court limited itself to finding that that the confidential nature of the attendance docket was not lost by the subsequent publication of excerpts in the newspaper, stating that "the fact that some disjointed excerpts were printed in the Irish Times does not mean that the document is in the public domain". The court did not offer a view on the level of publication required before the docket would have entered the public domain, causing privilege to be lost.
For further information on this topic please contact Michael Tyrrell or Daniel Scanlon at Matheson Ormsby Prentice by telephone (+353 1 232 2000) or by fax (+353 1 232 3333) or by email (firstname.lastname@example.org or email@example.com).
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