High Court allows privilege claim over inadvertently disclosed solicitor attendance docket in Ireland.

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 ATTORNEY GENERAL

DEFENDANTS 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 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:

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 confidentialinformation. 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 W.L.R. 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.