Lawyers for the Irish Haemophilia Society have asked Judge Alison Lindsay to determine if the Irish Blood Transfusion Service (IBTS) is justified in claiming privilege over confidential documents in its possession.
In an application to the tribunal yesterday, Mr Martin Giblin SC, for the IHS, said there was a "deficiency" in the blood bank's affidavit on the matter as there was no indication what records were involved and why privilege was being invoked.
He asked that the IBTS submit a supplementary affidavit giving details of the records and suggested that in the meantime the chairwoman examine the documents to see if the claim of privilege was justified.
But counsel for the IBTS, Mr Frank Clarke SC, said detailing the content of the records would "defeat the purpose" of protecting them by privilege. One was not entitled to get "by the back door" what had been refused by the front door and "no cogent reason" had been put forward to question the affidavit.
Mr Clarke stressed that the blood bank had made available to the tribunal all relevant files long before it was legally required to do so. What the IHS application related to was not the blood bank's files but "their lawyers' files" and entitlement to privilege over them was fundamental to the administration of justice.
He said Dr Emer Lawlor, the IBTS's deputy medical director, had given a sworn statement as to which documents were covered by legal and professional privilege, and it would require "very cogent evidence" to go behind that.
Mr Giblin said, however, there was no evidence that Dr Lawlor was qualified to distinguish between legal advice over which privilege could justifiably be claimed, and legal assistance over which it could not. He said the tribunal should not be reluctant to examine the documents to ensure the claim for privilege was properly asserted.
Judge Alison Lindsay said she would rule on the matter today.
