High Court rules on Irish Aviation Authority’s assertion of legal privilege in defamation case

About this case:

• Judgment:
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Paul McMahon was seeking damages or defamation in respect of statements made in a report by the Irish Aviation Authority in August 2014, arising out of an incident where a parachutists was injured after landing outside the designated drop zone.

In February 2016, an order for discovery was made by the High Court, requesting four categories of documentation.

However, the defendant asserted legal professional privilege over 88 documents, which they alleged relate to legal advice obtained by the defendant

The plaintiff challenged this assertion in respect of 39 documents, claiming that those documents will demonstrate the true intentions of the defendant, and that the assertion of legal privilege was an attempt to cover up the fact that no investigation concerning the plaintiff took place after 25th July 2013.

The plaintiff therefore requested that the court view the documents and rule on whether privilege had been correctly claimed.

There was no great dispute between the parties as to the legal principles which are to be applied where a claim of legal professional privilege has been raised by a party.

The principle of legal privilege was well established, as noted in Smurfit Paribas Bank Limited v. AAB Export Finance Limited 1 I.R. 469.

It was submitted by the defendant that the essence of the claim of privilege was to assist in the important role of ensuring the proper administration of justice, and it required the litigant to be free to communicate with legal advisors, see Fyffes plc v. DCC plc 1 I.R. 59; Martin v. Legal Aid Board 2 I.R. 759 and Shell E. & P. Ireland Limited v. McGrath (No. 2) 2 I.R. 574.

The defendant accepted that it was for the party invoking privilege to establish that the documents consisted of confidential information, and identified the first element as being that a communication had occurred between the client and the lawyer. Communications could be interpreted widely, and covered oral and written information.

It was submitted that the vast bulk of the documents challenged consisted of emails passing between the defendant authority and its in-house solicitor, Ms Aideen Gahan.

The second feature was that the communication must be made in confidence, and that the underlying purpose must relate to the giving or receiving of legal advice, see Three Rivers District Council v. Governor and Company of Bank of England (No. 6) 1 A.C. 610.

The third condition was that the communication was made either to or by a lawyer during the course of a professional legal relationship.

The term ‘lawyer’ could include permanent legal advisers, as shown in Geraghty v. Minister for Local Government I.R. 300 and Crompton Limited v. Customs and Excise Commissioners (No. 2) 2 Q.B. 102; A.C. 415.

The final condition was that the communication must have been made for the purposes of the giving or receiving of legal advice, as shown in Buckley v. Bough (Unreported, Morris J., 2nd July, 2001).

The defendants cited “The Modern Law of Evidence” by Keane & McKeown (10th Ed.) and “Legal Professional Privilege” by Hefferman (2011), which both found that “legal advice” for the purposes of legal advice privilege meant advice about legal rights and liabilities.

The defendant argued that it had correctly asserted legal privilege, as the documents were communications between the defendant and its legal advisers, which were made for the dominant purpose of seeking and providing legal advice.

The Court reviewed all the documents, which were almost all emails between the defendant and their legal advisor Ms Gahan, as well as some draft reports.

The majority were found to be privileged, with the exception of three emails suggesting meetings, an email passing on responses to the draft report, and an internal email finalizing the report.

Disclosure of these documents was therefore ordered to take place within 48 hours.