H409 Shell E & P Ireland Ltd -v- McGrath & Ors [2006] IEHC 409 (05 December 2006)

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Cite as: [2006] IEHC 409, [2007] 2 IR 574, [2007] 1 ILRM 544

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Judgment Title: Shell E & P Ireland Ltd -v- McGrath & Ors

Neutral Citation: [2006] IEHC 409


High Court Record Number: 2005 840 P

Date of Delivery: 05 December 2006

Court: High Court


Composition of Court: Smyth J.

Judgment by: Smyth J.

Status of Judgment: Approved




Neutral Citation Number: [2006] IEHC 409




THE HIGH COURT

DUBLIN

Case No. 840P/2005



IN THE MATTER OF



SHELL E. AND P. IRELAND LTD PLAINTIFF



and



PHILIP McGRATH, JAMES PHILBIN, WILLIE

CORDUFF, MONICA MULLER, BRID McGARRY,

PETER SWEETMAN DEFENDANTS



MINISTER FOR COMMUNICATIONS, MARINE AND

NATURAL RESOURCES, IRELAND AND THE DEFENDANTS

ATTORNEY GENERAL TO THE

COUNTERCLAIM



JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH

ON TUESDAY, 5 DECEMBER 2006






1. INTRODUCTION



The application before the Court is one in which the

second and fifth named Defendants ("these Defendants")

seek a determination/directions in relation to whether

the Plaintiff is entitled to claim privilege in respect

of, or whether the Defendants are entitled to adduce in

evidence, an attendance docket of Eugene F. Collins,

the solicitors for the Plaintiff, dated 10 June 2005

("the Attendance Docket"). It was common case that the

documentation was protected by legal professional

privilege when it was created and the question for

decision by the Court is:- whether that privilege has

been lost by the inadvertent disclosure of the

Attendance Docket to the Defendants.



2. GENERAL BACKGROUND



This notorious litigation began with the issue of a

Plenary Summons on 4 March 2005 which was served on all

Defendants on the following day. A Notice of Motion

(seeking injunctive relief), dated and issued on

4 March 2005 was grounded on an affidavit of one Paul

Gallagher sworn on the same date. These Defendants

entered an Appearance in person dated 10 March 2005,

these Defendants both swore an affidavit on 9 March




2005 noted as filed in the Central Office on 10 March

2005. All other Defendants swore contesting

affidavits. Finnegan, P. at the conclusion of a

contested application for an interlocutory injunction

(in which these Defendants represented themselves) on

4 April 2005 ordered that the Defendants be restrained

until the hearing or until further order:


"...from obstructing or continuing to
obstruct and/or interfering or
continuing to interfere with the entry
by the Plaintiff on to the pipeline
corridor and deviation limits through
lands at Rossport in the County of Mayo
more particularly described in the
Compulsory Acquisition Orders...for the
purposes of the preparation,
construction and installation of the
Corrib onshore natural gas import
pipeline and associated outfall pipe
and control cable ducts and all works
ancillary and necessarily associated
with such preparation, construction and
installation including, the erection of
fencing at the boundaries of the said
lands with appropriate pedestrian and
agricultural access as may reasonably
be required by the Defendants, such
works to be carried out by the
Plaintiff its servants or agents
without unreasonable interference with
the Defendants' right to use their
premises and other lands and the
Plaintiff attempting to facilitate the
Defendants normal farming PROVIDED
ALWAYS that such pipeline shall not be
used for transmitting natural gas from
the Corrib Gas Field until these
proceedings have been determined or
until further Order of this Honourable
Court."


The matter came before the Court for mention on

Tuesday, 7 June 2005 and some personnel of the

Plaintiffs were in consultation with the Plaintiff's

solicitors on Friday, 10 June 2005 in respect of which



the Attendance Docket came into being.



On 14 July 2005 on the application of the Plaintiff the

Order of 4 April 2005 was varied to incorporate an

"undertaking" that no such works would be carried out

otherwise than in accordance with the consent issued by

the Minister pursuant to section 40 of the Gas Act 1976

and the conditions therein contained."



Arising from their breach of the Order of 4 April 2005

and their refusal to provide any undertaking to abide

by the terms of that Order, an Order of MacMenamin, J.

dated 29 June 2005 committed (inter alia) the second

Defendant to prison until such time as he purged his

contempt. This he did not do nor did he apologise for

his conduct: however, all Defendants were released

from prison on 30 September 2005 upon an application of

the Plaintiffs to discharge the interlocutory

injunction of 4 April 2005.



3. SPECIFIC BACKGROUND



In an affidavit of William Aylmer of the Plaintiff's

solicitors sworn on 8 November 2006 he explains that he

inadvertently included copies of three solicitors

attendance dockets as part of a book of inter partes

correspondence in an exhibit to an affidavit sworn on

23 June 2005 to ground an application for the

attachment and committal of five persons including the


second Defendant.



4. FACTS



I am satisfied on the evidence and find as a fact that:



(a) It is clear that there was no intention on the part

of the Plaintiff or its solicitors to waive privilege

in the Attendance Docket



(b) Its disclosure to these Defendants was through

inadvertence and mistake, rather than a result of a

deliberate decision or action.



(c) Having regard to its heading, form and contents

(and the nature or character of the exhibit of which it

formed part) it would have been immediately clear and

obvious, particularly to a solicitor, that the document

was not a letter or part of a correspondence, but an

Attendance Docket which was a privileged document

(recording the giving and receiving of legal advice in

the course of ongoing proceedings) and that its

disclosure was a mistake.



The mistake came to light in this way. A

representative of the Irish Times contacted the

Plaintiff on 4 July 2005 with a view to obtaining its

comments on certain file notes that had come into its

possession relating to a meeting between the Plaintiff



and its solicitors on 7 and 10 June 2005. This fact

taken in conjunction with other proceedings of 1 July

2005 issued by a Mr. Casey on behalf of the fourth and

sixth Defendant gave rise to an apprehension by

Mr. Aylmer that those Defendants might have come into

possession of the inadvertently disclosed material and

might seek to rely on the confidential attendance to

ground or assist in some way to vary or set aside the

Order of 4 April 2005. Accordingly Mr. Aylmer wrote

immediately to Mr. Casey, the solicitor for those

Defendants, asserting privilege over the confidential

Attendance Docket, prior to any attempt to adduce the

Attendance Docket in evidence either on an

interlocutory application and prior to trial.



Neither the Plaintiff or its solicitors engaged with

the newspaper which published disjointed excerpts from

the Attendance Docket - rather did they give their

attention to the possibility of a disloyal person

divulging clearly confidential information. As no

other Defendant, other than those represented by

Mr. Casey, had given any indication of bringing any

form of interlocutory application or having knowledge

or receipt of privileged documents they had no

apprehension of such documents (inadvertently disclosed

to those Defendants in June 2005) would be sought to be

used in these proceedings.



On or about 8 July 2005 the second Defendant was



professionally represented by Messrs. Ferry solicitors.

No-one communicated with the Plaintiff or its

solicitors to disclose that they had a copy of the

Attendance Docket or that they would use it in these

proceedings.



On or about 26 September 2006 the matter was before the

Court and Senior Counsel for the Plaintiff noticed at

counsels' bench that the solicitor then and now on

record for these Defendants had a copy of the

Attendance Docket. The fact of having possession of

the copied document was not brought to the attention of

the Court or the Plaintiff or its solicitor or counsel

either directly or at all at that time by the Defendant

or either of them or their solicitor or counsel and no

indication was given that the Attendance Docket would

be produced or used in the proceedings and the

Plaintiff and its solicitors had no apprehension that

it would be either produced or used in these

proceedings.



The case made on behalf of these Defendants may be

summarised as follows:


Neither the Plaintiff or its solicitors
wrote to the Irish Times claiming
privilege or breach of privileged
information, neither did they write at
all or in such terms to these
Defendants either in person or when
Messrs. Ferry solicitors represented
them. Further, any privilege was lost
or waived by the publication of
excerpts in the newspaper and as the
document was in the public domain


[which I find as a fact it was not and
is not] any confidentiality it enjoyed
is lost and if it is not confidential,
privilege cannot be asserted.


In the submissions made by counsel on behalf of these

Defendants it was contended that the Attendance Docket

reveals conduct on the part of the Plaintiff which

indicates certain moral turpitude on their part

concerning the matter and the manner of their obtaining

the Order of 4 April 2005. I reject this submission as

unwarranted by the facts. The President of the High

Court, as is clear from the Order, considered all the

affidavits filed and recorded in the Order and heard

the second and fifth named Defendants in person. To

seek at this stage to isolate specific averments in the

grounding affidavit of the Plaintiff is to leave them

shorn of their context and to ignore Lord Steyn's

aphorism "In law context is all". Furthermore, it is

to ignore the whole factual matrix put before the Court

as to why the Plaintiff pleaded urgency in its

application. It is no function of the Court on this

application to make a determination as to the terms of

the consent of the Minister for the Marine and Natural

Resources dated 15 April 2002 for the construction

of "a pipeline in connection with Corrib Gas Field

development under Section 40 of the Gas Act 1976 as

amended" save to note that it is subject to a number of

conditions referable to technical matters (inter alia)

to installation of operations, pipeline installation

(at various stages) and commissioning. Not



surprisingly given the magnitude and complexity of the

undertaking, there are also provisions for review and

assessment for different phases of the development) and

Environmental Conditions concerning an Environmental

Plan and like matters including monitoring plans for

each phase of construction upon which some argument was

based to support the plea of moral turpitude.



5. THE LAW



(a) in Smurfit Paribas Bank Ltd. -V- AAB Export Finance

Ltd. [1990] IR 469, Finlay, C.J., examined the

principles underlying legal privilege and traced their

historic development and rationale from Anderson -V-

British Bank of Columbia (1876) 2 Ch.D 644 and

specifically approved the dictum of Jessel, M.R.

(at p649) in the Anderson case and identified the

purpose of privilege as:


"...the requirement of the superior
interest of the common good in the
proper conduct of litigation which
justified the immunity of
communications for discovery insofar 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." (p476)




The rationale for legal professional privilege is to

ensure that a client may fully instruct his lawyer

freely and openly safe in the knowledge that what he

says to his lawyer in confidence will never be revealed



without his consent. The privilege is that of the

client not the lawyer. The interest of the client in

the maintenance of privilege is twofold:



(i) The client has an interest in maintaining the

confidentiality of the privileged communication.



(ii) Even if the confidentiality is impaired or lost,

the client has an interest in ensuring that the

document is not used against him in proceedings.



The free flow of information a client is entitled to

convey to his legal advisors to be properly and fully

advised would clearly be impaired if the client is to

run the risk that his confidence will not be honoured,

or if inadvertently or improperly divulged would be

used against him/her at trial. In Bolton -V- Liverpool

Corporation (1833) 1 M & K 88, 94 Lord Brougham, L.C.,

refused to grant the Defendant inspection of the

Plaintiff's instructions to counsel, stating:


"It seems plain that the course of
justice must stop if such a right
exists. No man will dare consult a
professional advisor with a view to his
defence or the enforcement of his
rights."



The judgment of Lyndhurst L.C. in Holmes -v- Baddley

(1844) 1 Ph. 476 at 480/1 elaborates on what was

decided in Bolton's case, and expressed himself thus:


"The principle upon which the rule is


established is that communications
between a party and his professional
advisers, with a view to legal
proceedings, should be unfettered: that
they should be not be restrained by any
apprehension of such communications
being divulged and made use of to his
prejudice."


(Emphasis added)



This prospect of the use of information given in a

privileged context was considered in R -v- Uljee [1982]

1 NZLR 561 at 572 by Richardson J. who stated that:


"For the focus of the solicitor and
client privilege is not on the conduct
of third parties at all. It is on the
freedom of communication between lawyer
and client. So it is on the effect of
solicitor and client if that
confidentiality is not assured."


The purpose of legal professional privilege is very

concisely set out in Gallagher -v- Stanley and the

National Maternity Hospital [1998] 2IR 267 where

O'Flaherty J. stated:


"Its purpose is to aid the
administration of justice, not to
impede it. In general, justice will be
best served where there is the greatest
candour and where all relevant
documentary evidence is available."



(b) These Defendants submitted that a party will not be

entitled to claim privilege where that party is guilty

of conduct which is injurious to the interests of

justice. In support of this proposition they relied on

the decision of Murphy -v- Kirwan [1993] 3IR 501, where



Finlay C.J. after reviewing the case law stated that:


"...the essence of the matter is that
professional privilege cannot and must
not be applied so as to be injurious to
the interests of justice and to those
in the administration of justice where
persons have been guilty of moral
turpitude or of dishonest conduct, even
though it may not be fraud."



The Chief Justice went on to consider in what

circumstances privilege might be lost and stated that

it was not necessary that the parties seeking the

documentation should have to prove 'iniquitous' conduct

as a matter of probability, but that:


"...what is required, in my view, is
that the allegation he makes should be
supported to an extent that they are,
in the view of the Court, viable and
plausible."


Egan J. in his judgment stated:


"...that it is proper that professional
privilege ought not to be allowed in a
case where a person has been guilty of
maliciously bringing an action or, for
an ulterior or improper purpose,
abusing the process of the Court."



It is clear from the decision in Bula Ltd. -v- Crowley

(No. 2) [1994] 2IR 54 that the exemption is restricted

to conduct which contained an element of fraud,

dishonesty or moral turpitude and did not extend to

allegations of tortious conduct.



In the course of the submissions of these Defendants



the case for the 'piercing of the privilege' was

expressed in the following terms:


The second-named Defendant maintains in
his defence and counterclaim that the
Plaintiff is guilty of abuse of process
and has acted with an ulterior motive
in instituting and continuing with the
attachment and committal of the
second-named Defendant. Indeed in the
affidavit sworn by Paul Gallagher on
behalf of the Plaintiff on 4 March 2004
it was wrongly represented and averred
that the Plaintiff was ready and had
all necessary permissions and consents
required to begin construction work on
the pipeline and that this had to
commence by 1 June 2005 to avoid
substantial losses to the Plaintiff and
that there was thus an urgency in the
matter. The second Defendant further
claims that in bringing the application
for an injunction and for attachment to
committal the Plaintiff was motivated
by a desire to exert pressure,
influence and domination over the
second-named Defendant and his lands in
Rossport, Co. Mayo so as to prevent him
from raising questions as to the right
of the Plaintiff to carry out the works
and in the safety of the proposed
pipeline. It is submitted that the
document, the subject matter of the
present application, supports these
contentions. From a reading of the
same it is evident that a strategic
decision was taken to create an urgency
because the Court had been told that
there was an urgency with the matter
and that the attempt to gain access to
the lands would be made not because of
any urgency relating to the works.
Indeed it was decided that the attempt
at access would be made "in advance of
our next appearance in Court on 29 June
2005." It is submitted that it is also
clear from the document that the issue
of whether the consents were invalid
was one of which the Plaintiff was
aware of and indeed the document
discusses the issue of suing the State,
this despite the fact that the court
was told that the Plaintiff had all
necessary consents. Thus it is
submitted that the document shows that
the advice sought related to the


structuring of a set of events so as to
bring about the attachment and
committal of protestors and also
highlights the matter of candour of the
Plaintiff in its application to the
Court.


Mindful of the limits of this application, but

nonetheless having read in full all the affidavits,

exhibits and pleadings, I note the following:



A. It is averred in Paragraph (2) of the affidavit of

Paul Gallagher filed on behalf of the Plaintiff, that

it is made "for the purpose of grounding an application

for interlocutory relief arising out of the unlawful

interference by the Defendants and others with

employees and agents of the Plaintiff while attempting

to enter certain lands at Rossport, Ballina in the

County of Mayo." While there are many elements of the

claim of the Plaintiff contested, the express averment

on motive is not challenged in terms until the filing

of an amended defence and counterclaim of the second

Defendant delivered on 30 March of 2006 by McGarr

solicitors for the second-named Defendant pursuant to a

judgment dated 23 March 2006.



Paragraph 23 of that document notes that:


"...the Plaintiff is guilty of the tort
of abuse of the legal process in that
the Plaintiff in bad faith maliciously
and with ulterior motive and without
reasonable or proper cause instituted
and continued an application for the
attachment and committal of the
second-named Defendant by reason of
which the second-named Defendant


suffered loss and damage and was
deprived of his liberty for a period of
94 days."



This plea is particularised (inter alia) as follows:


"(e) In bringing the application for an
injunction and for attachment and
committal the Plaintiff was motivated
by a desire to exert pressure,
influence and dominion over the
second-named Defendant and his lands in
Rossport, Co. Mayo so as to prevent him
from raising questions as to the right
of the Plaintiff to carry out the works
in the safety of the proposed
pipeline."


Altogether from the plea being one in tort for

malicious prosecution such as is expressly excluded by

the Bula decision, earlier referred to, (it is clear

that the motivation asserted not only was wholly

ineffectual) but the wording of the Court Order of

4 April 2005 earlier quoted clearly records the purpose

of the Order, which is borne out by the averments in

the affidavits. Whatever legal debate may be open by

way of interpretation of the Ministerial consent of

15 April 2002, it is clear that for the purpose of

staking or setting out the works which the Plaintiffs

were interrupted or inhibited from doing by the

Defendants, there was in my judgment no viable or

justifiable cause for the action of the Defendants, in

view of the determination of Finnegan P and MacMenamin

J., much less for their use or intended use of the

Attendance Docket. It is evident that as between at

least April 2002 and 4 April 2005 and 29 June 2005 the



Plaintiff incurred substantial expenses in bringing the

project to that stage, which must of necessity be lost

or increased by any form of delay or forward

implementing action.



The Attendance Docket does not at all support the

contentions of these Defendants. I am satisfied and

find as a fact there was no strategic decision

taken "to create an urgency" or any contrived urgency.

Not surprisingly while (I am satisfied ) the Plaintiff

believed it had all necessary consents and permissions

to take the actions that were interfered with by the

Defendants, once the Defendants challenged the legal

status or validity of the consents, 'the State' under

the title of "Minister for Communications, Marine and

Natural Resources, Ireland and the Attorney General"

has become a Defendant to the Counterclaim of these

Defendants so that this issue raised by the Defendants

(though not by way of judicial review) could be

determined by court order and put beyond dispute.



While refraining from comment on the propriety of

quoting in written submissions to the Court on part of

the content of the Attendance Docket, I am satisfied

and find as a fact that at all material times the

Plaintiff wished to enter onto the lands along the

length of the pipeline, but as determined by other

judges this aspiration was frustrated or interrupted or

impeded or inhibited by the proceedings and the actions



of the Defendants in different ways at different times.



(c) Loss of privilege.



I was referred to a number of cases by counsel for

these Defendants on this matter. Most, if not all,

referred to the authority of solicitor and counsel in

the conduct of litigation to disclose information on

foot of certain implied authority which is not the

instant case. Furthermore, the facts of the instant

case are distinguishable in that the client never

disclosed the information or sanctioned its disclosure.

The Defendants relied on the Supreme Court decision in

Hannigan -v- DPP [2001] 1 IR 387, where in the course

of his judgment Hardiman J. stated:


"The status of a document, from the
point of view of privilege or immunity
from disclosure, changes once it has
been referred to in pleadings or
affidavits. Matthews & Malek's
Discovery (London 1992) paragraph 9.15
stated:

"The general rule is that where
privileged material is deployed in
court in an interlocutory application,
privilege in that and any associated is
waived."


There is no question that the Attendance Docket was

deployed by the Plaintiff or its solicitor. There was

an inadvertent disclosure by the solicitor which is

patent to any recipient having any legal knowledge of

court procedure. In Hannigan's case the document which

had been referred to and summarised was deployed in the



proceedings. In the instant case neither the Plaintiff

or the solicitor were aware as to how the material got

into the hands of the Irish Times. The fact that some

disjointed excerpts were printed in the Irish Times

does not mean that the document is in the public

domain. I would accept counsel's submission that if a

client discloses a privilege communication deliberately

to the public or a significant part of it

confidentiality and consequently the entitlement to

claim privilege would be lost and the party could well

be taken as having waived the privilege. In my

judgment the cases as advanced in support of the

Defendant under this heading were wholly unconvincing

and are clearly distinguishable from the actual facts

in the instant case.



(d) Disclosure of documents by inadvertence or mistake.



In my judgment the approach that should be adopted

where a privileged document has been disclosed by

inadvertence and a party seeks to restrain its use does

not appear to have been directly considered in any

reported decision of our courts. However, the question

has been the subject of considerable case law in other

jurisdictions. 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 provided he does so prior to trial and if the



privileged document was obtained by improper means or

it would have been obvious to the opposing party that

it had been disclosed by reason of mistake. The courts

in other jurisdictions such as Canada and Australia

take a more protective (and in my judgment a 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). In

my judgment it matters little in the instant case which

approach is adopted because it must have been apparent

to the solicitor to the second and fifth Defendant who

has sworn an affidavit exhibiting the Attendance

Document that it was privileged and had been disclosed

by reason of mistake.



It is unnecessary to carry out a full review of all the

English decisions referable to this matter, but there

is a consistency of view that in circumstances where it

must have been apparent to the solicitors for the other

party that the disclosure was as a result of obvious

mistake the court may grant an injunction restraining

that party from making use of the document in the

proceedings. The nineteenth century view expressed by

Lindley MR in Calcraft -v- Guest [1898] 1 QB 759 was

redressed in the early 20th century in the case of Lord

Ashburton -v- Pape [1913] 2Ch. 469 which considered the

admissibility in evidence of copies of privileged

communication which did not affect the jurisdiction of



the Court to protect the underlying confidence where

those copies had been obtained surreptitiously. A

number of attempts were made to reconcile these earlier

decisions notably in Guinness Peat Properties Ltd. -v-

Fitzroy Robinson Partnership [1987] 2 All E.R. 716

where Slade L.J. set out the English position as

follows:


"(a) The general rule is that once the
other party has inspected a document
protected by privilege, it is too late
for the first party to correct the
mistake by applying for injunctive
relief.

(b) However, if the other party has
either procured inspection of the
relevant document by fraud or on
inspection realised that he had been
permitted to see the document only by
reason of an obvious mistake then the
Court has power to grant an injunction

(c) The Court would only grant an
injunction unless it can properly be
refused having regard to the general
principles governing the grant of a
discretionary remedy."



In the course of his judgment Slade L.J. stated:


"...save where it is too late to
restore the previous status quo....
I do not think the law should encourage
parties to litigation or to its
solicitors to take advantage of obvious
mistakes made in the course of the
process of discovery."


He concluded his judgment by noting that:


"The mistakes in question have been
obvious ones of which the Plaintiff's
representatives were aware, the Court
should intervene by way of injunction
for the protection of the Defendants,


who moved promptly to seek relief as
soon as they became aware of what had
happened. It is not too late to put
the clock back."
It is contended by the Defendants that it was too late

to restore the status quo where the document had been

circulated and therefore the confidentiality lost and,

secondly, that the Plaintiff failed to move

expeditiously to reassert its claim of privilege.

I reject both these contentions as I am satisfied that

the document was not circulated to the public. It was

inadvertently given to one or more of the Defendants

who may have, and probably did, communicate the

confidential document to the newspaper and further that

when the Plaintiff and its solicitor had an

apprehension as to who had the document and what use it

might be put to they immediately asserted the

privilege. In Lord Ashburton's case Swinden Eady L.J.

stated the principle upon which a person may be

restrained from dealing with documents or using

information as follows:


"The principles upon which the Court of
Chancery has acted for many years has
been to restrain the publication of
confidential information improperly or
surreptitiously obtained or of
information imparted in confidence
which ought not to be divulged.
Injunctions have been granted to give
effectual relief, that is not only to
restrain the disclosure of confidential
information, but to prevent copies
being made of any record of that
information, and, if copies have
already been made, to restrain persons
in whose possession that confidential
information has come from themselves in
turn divulging or propagating it."




It is accordingly clear from the foregoing passage that

the focus of the remedy is not simply the protection of

the confidentiality of the communication, but also on

restraining its use. In Goddard -V- National Building

Society [1987 ] 1 QB 670 May L.J. commenting on the

decision of the court in Calcraft and Lord Ashburton's

case stated as follows:


"I confess that I do not find the
decision in Lord Ashburton v Pape
logically satisfying, depending as it
does upon the order in which
applications are made in litigation.
Nevertheless I think that it and
Calcraft -v- Guest [1898] 1 QB 759 are
good authority for the following
proposition, if a litigant has in his
possession copies of documents to which
legal professional privilege attaches
he may nevertheless use such copies as
secondary evidence: However, if he has
not yet used the documents in that way,
the mere fact that he intends to do so
is no answer to a claim against him by
a person in whom the privilege is
vested for delivery up of the copies or
to restrain him from disclosing or
making use of any information contained
in them."


A similar decision was reached in English & American

Insurance Co. Ltd v Herbert Smith [1988] F.S.R. 232 in

which case the clerk to counsel acting for the

Plaintiffs inadvertently allowed instructions to

counsel, which included statements by witnesses and his

opinion, to be collected by the first defendants, who

were the solicitors for the second defendant. The

first defendant's solicitors read them and took notes

of their contents before returning them. The

plaintiffs sought an injunction restraining the



defendants from making any use of the information

derived from the documents. Sir Nicholas

Browne-Wilkinson V.C. interpreted Goddard's case as

holding that provided proceedings were taken before the

document is tendered in evidence, the person entitled

to the legal professional privilege is entitled to an

injunction restraining the other side from relying upon

the documents in the pending litigation. He rejected

the contention that the other side must have been in

some way wrongfully implicated in obtaining information

and granted the injunction stating:


"I therefore hold that I am bound by
the decisions in Lord Ashburton -v-
Pape and Goddard -V- National Building
Society to grant the reliefs sought
against the Defendants. I confess that
that is a result which gives me some
satisfaction. Legal professional
privilege is an important safeguard of
a man's legal rights. It is the basis
on which he and his advisers are free
to speak as to matters in issues in
litigation and otherwise without fear
that it will subsequently be used
against him. In my judgment, it is
most undesirable if the security which
is the basis of that freedom is to be
prejudiced by mischances which are of
everyday occurrence leading to
documents which have escaped being used
by the other side."



(p 239)



The decision in Guinness Peat was approved and followed

in Derby & Co. -v- Weldon (No. 8) [1991] 1 WLR 73. In

that case, privileged documents were inadvertently

included in discovery. The Plaintiff's solicitors had



tabbed the privileged documents with yellow tags marked

'privileged'. Some of these became detached, and

unmarked documents that were privileged, as well as a

number of tagged documents, were inadvertently

disclosed. On the facts before him Dillon L.J.

concluded that there had been an obvious mistake and

that the recipient of the document should not be

entitled to take advantage of that mistake. This

decision is of particular note as Dillon L.J. rejected

the contention that the decision in Lord Ashburton -v-

Pape was premised solely on the principles in which the

court acts in preventing the use of confidential

information. Instead, he identified the fact that the

documents were privileged as the crucial factor and

pointed out that the injunction granted restrained the

use of the documents in the pending proceedings as well

as protecting their confidentiality:


"The unrestricted order which Lord
Ashburton sought and which he obtained
in the Court of Appeal was clearly
designed and apt not only to secure the
return of any copies of the letters
made by Pape's solicitors, but to
prevent Pape from giving oral evidence
of their contents or otherwise making
use of any information derived from
them in the bankruptcy proceedings."
(p 78)


Dillon L.J. in Derby & Co., on the basis that the

decision of the court in Ashburton and Goddard could

not have been founded solely on the ground that the

information contained in them was imparted in

confidence, refused to apply a balancing test to decide



whether an injunction should be granted - where an

injunction is sought in aid of legal professional

privilege. Indeed at first instance Vinelott J. at p87

of the report noted that " no balancing act is called

for". In the course of his judgment Dillon L.J. went

on to note the high standard of probity and care

expected of officers of the court and that a solicitor

who suspected mistake but made no further inquiry

should not be entitled to take advantage of the

mistake.



In Pizzey -v- Ford Motor Co. Ltd. (1993) Times, 8 March

was also a case involving documentation disclosed in

error. In that case Mann L.J. stated that the mistake

must be obvious to the recipient of the document, but

the exception also applied if the recipient ought to

have realised that a mistake was evident. Aldous J

followed this decision and held that the Court should

ask whether in the light of the evidence and the

surrounding circumstances it had been proved on the

balance of probabilities the disclosure of the document

would be seen by the reasonable solicitor to have been

disclosed by mistake. He rejected the Plaintiff's

argument that this test should be applied subjectively,

with a focus on what the recipient solicitor actually

thought:


"The court must adopt the mantle of the
reasonable solicitor. The evidence of
what a solicitor thought at the time
can be relevant. However, the decision
is for the Court. The Court must


decide whether it is satisfied, on the
balance of probabilities, that the
reasonable solicitor would have
realised that privilege had not been
waived."

In my judgment in the instant case I am satisfied that

on the balance of probabilities a reasonable solicitor

would have realised that the Attendance Docket had come

to him in error and that information was privileged and

was advice clearly sought or given during the course of

legal proceedings.



The Supreme Court in the more recent case of Fyffes plc

-v- DCC plc [2005 ] 1 IR 59 at 67 contains a passage in

the judgment of Fennelly J. who quoted with approval

from the dictum of Lord Bingham in Paragon Finance -v-

Freshfields [1999] 1 WLR 1183 at 1188 on the nature

and basis of legal professional privilege. In my

judgment the approach to be taken in the instant case

should have regard to the very important interest that

is served by privilege and its important role in the

administration of justice. It is appropriate in the

instant case to adopt a protective approach to

privilege particularly where the documents were

revealed inadvertently and I am satisfied that there

was no abuse of process or moral turpitude or

impropriety on behalf of the Plaintiff or its

solicitors in the manner of its conduct such as was the

concern in Murphy -v- Kirwan.



In my judgment it is clearly distinguishable from the



facts in the instant case. In my judgment the

Attendance Docket does not provide any evidence

whatsoever of an abuse of process on the part of the

Plaintiffs. It clearly evidences a consideration of

the various options open to the Plaintiff and an

assessment of certain tactical considerations in the

course of litigation. It provides no support in my

judgment for the proposition that the Plaintiff had any

form of ulterior or improper motive in instituting and

prosecuting the proceedings.



THE JUDGMENT WAS CONCLUDED





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