The Irish Haemophilia Society Ltd (applicant) v Her Honour Judge Lindsay, sole member of the tribunal of inquiry into circumstances of infection of people with haemophilia with HIV and Hepatitis C (respondent); and the Blood Transfusion Service Board (now known as the Irish Blood Transfusion Service) (notice party).
Judicial Review - Application on notice for leave to apply for judicial review - Standard of proof - Arguable case of entitlement to relief sought.
Legal Professional Privilege - Affidavit of discovery - Claim that privilege wrongly asserted - Adducing evidence to challenge claim to privilege - Rules of the Superior Courts 1986, Order 31 rule 13 and Appendix E, Form 10.
The High Court (Mr Justice Kelly); judgment delivered 16 May 2001.
While an affidavit of discovery must be sworn in the manner prescribed by the Rules of the Superior Courts 1986, so that the documents over which privilege is claimed are categorised and enumerated, to describe the documents in any greater detail would run the risk of diluting or even destroying the privilege asserted. Once a claim of privilege is justified, the onus moves to the challenger thereof and evidence must be adduced to challenge the claim. Mr Justice Kelly so held in refusing the applicant's application for leave to apply for judicial review of the respondent's ruling upholding the notice party's claim of legal professional privilege in respect of 611 documents.
Patrick Martin Giblin SC, Martin Hayden SC and James McCullough BL for the applicant; John R. Finlay SC and Patrick McCann BL for the respondent; Frank Clarke SC and Judy Blake BL for the notice party.
Mr Justice Kelly said that the applicant (hereinafter "the society") commenced proceedings to seek leave to apply for judicial review of a ruling made by the respondent (hereinafter "the tribunal") on 9 May 2001, which upheld a claim of legal professional privilege made by the notice party (hereinafter "the BTSB") in respect of 611 documents discovered in an affidavit of Dr Emer Lawlor sworn on 15 March 2001. The tribunal declined to inspect the documents and refused to allow the society to cross-examine Dr Lawlor on her affidavit.
Mr Justice Kelly said that, on 11 May 2001, he declined to hear the application ex parte and required that the tribunal and the BTSB be put on notice of it and, this having been done, the application was opposed by both the tribunal and the BTSB at the hearing on 14 May 2001.
Mr Justice Kelly said that, even though the application was heard inter partes, it was agreed that the onus of proof on the society was that which was stated in G v DPP [1994] 1 IR 374, wherein the then Chief Justice, Mr Justice Finlay, held at pages 377-378 that an applicant for leave to apply for judicial review must satisfy the court in a prima facie manner, by the facts set out on affidavit and in submissions, that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review, and on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
Mr Justice Kelly proceeded to apply this test although he noted that there might well be grounds for believing that a higher test was appropriate when the application for leave was made inter partes.
In support of this belief, Mr Justice Kelly referred to the observations of Lord Justice Glidewell in Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, Mr Justice Keene in R v Cotswold District Council, ex p. Barrington Parish Council (1997) 75 P & CR 515 and his own observations in Gorman v Minister for the Environment and Local Government (High Court, 7 December 2000, unreported).
Mr Justice Kelly said that the tribunal made an order directing the BTSB to make discovery of documents on 27 November 1999 and Dr Emer Lawlor swore an affidavit of discovery on 8 October 1999 wherein legal professional privilege was claimed in respect of 611 documents.
In the course of ruling upon the society's application for further and better discovery in January 2001, the tribunal ruled that, while the affidavit sufficiently categorised the documents over which legal professional privilege was claimed, discovery was not made in compliance with the Supreme Court decision in Bula Ltd v Crowley [1990] ILRM 756. Mr Justice Kelly was satisfied that the tribunal was correct in directing that Dr Lawlor swear a supplemental affidavit that would comply with the Bula decision, namely one that would enumerate the relevant documents that the BTSB had in its power or possession at the date on which the original affidavit was sworn.
Mr Justice Kelly considered the relevant contents of the supplemental affidavit sworn by Dr Lawlor which, inter alia, claimed legal professional privilege in respect of the documents on the grounds that they were brought into being for the dominant purpose of giving, receiving or recording professional legal advice for the purpose of obtaining evidence for actual or contemplated legal proceedings or tribunals of inquiry.
Mr Justice Kelly noted that the vast bulk of the documents were letters exchanged between solicitors and client, solicitors and counsel, or solicitors and/or client to experts or witnesses.
Mr Justice Kelly said that the society was dissatisfied with this affidavit and, at a further hearing on the matter on 8 May 2001, the claim to legal professional privilege was challenged on a number of bases. No evidence was adduced by the society at the hearing but it made extensive legal arguments.
On 9 May 2001, the tribunal ruled that the claim of legal professional privilege was carefully exercised by Dr Lawlor, that she was aided by legal advice and she selected documents coming within her understanding of what was legal advice. Mr Justice Kelly referred to the tribunal's decision which stated, inter alia "If I were to refute that [the claim to legal professional privilege], I would need evidence, and cogent evidence, to the effect that such legal privilege was wrongly asserted.
Instead, what I have received is that cogent argument put forward by Mr Giblin that such enumeration doesn't allow me to distinguish between what is legal advice and legal assistance, but he has not put forward to me a prima facie case today that a document or documents are not ones which should have legally - should have legal privilege attributed to them.
I am directed by the judgment of Mr Justice Kelly in the Duncan v Portlaoise case in which he said that if one was to challenge such an assertion of legal privilege that, (1) it would be a very rare case; and (2) that cogent evidence would have to be adduced on behalf of the person challenging that such legal privilege was wrongfully asserted."
In its decision, the tribunal ruled that, in order to succeed in a claim that legal professional privilege was wrongfully asserted, there must be cogent evidence adduced and a prima facie case made that the privilege was wrongly asserted.
The tribunal's decision noted that no cogent evidence was adduced to substantiate the assertion that privilege was incorrectly claimed over any of the documents and that, if there was cogent evidence and if the tribunal had a doubt with regard to the assertion of legal privilege, it would have no hesitation requiring a further affidavit or inspecting the documents.
The tribunal said that there must be a doubt and there was no such doubt in this case. The tribunal upheld the claim of legal professional privilege and, in holding that the society was not entitled to know the contents of the relevant documents nor the identity of certain experts, noted that the very purpose for which the legal right to the privilege was afforded would be defeated if one had to state the nature of the advice being sought or given. Furthermore, the tribunal refused the society's application for permission to cross-examine Dr Lawlor on her affidavit on the basis that there was no reason to go behind the sufficiently categorised and enumerated affidavit.
In the High Court, the society sought to impugn the tribunal's rulings on three grounds. Firstly, it claimed that the tribunal was wrong in law and misdirected itself in holding that the affidavit as presented was correct and sufficient to establish the legal professional privilege claimed and it ought to have held that the documents should have been individually described in a more detailed form.
Mr Justice Kelly said that legal professional privilege was a fundamental condition on which the administration of justice as a whole rested and that he had considered the issue in some depth in Miley v Flood [2000] 1 ILRM 489. Mr Justice Kelly said that the existence of the privilege was not disputed before him and that care was required to ensure that the privilege was neither abused nor diluted or destroyed.
Mr Justice Kelly noted that the Supreme Court had twice addressed how a claim of privilege ought to be made. He referred to Bula Ltd v Tara Mines Ltd (No. 4) [1991] 1 IR 217, in which Mr Justice Walsh said, at page 218, that Order 31 of the Rules of the Superior Courts 1986, rule 13, required that an affidavit of discovery must be sworn in the format dictated by Appendix E, Form 10, to the Rules and that the schedule of documents should follow the format stated therein.
Mr Justice Walsh had said: "Unless documents are identified and properly indicated no particular claim of privilege should be made about anything. One must know what the claim of privilege is."
Mr Justice Kelly further referred to Bula Ltd v Crowley [1990] ILRM 756 wherein, having quoted from the aforementioned portion of the judgment of Mr Justice Walsh, the then Chief Justice, Mr Justice Finlay, said at page 758: "A consideration of the motion in that case and the appeal from the order of the High Court clearly indicate that what was required by this judgment and what the plaintiff was seeking in that case was an individual listing of the documents with the general classification of privilege claimed in respect of each document indicated in such fashion by enumeration as would convey to a reader of the affidavit the general nature of the document concerned in each individual case together with the broad heading of privilege being claimed for it.
Such a requirement, irrespective of what may have been a habitual form of affidavit of discovery in the past, seems necessary to comply with the principles laid down by this court in the recent case of Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] ILRM 588."
Mr Justice Kelly said that it was clear that the tribunal relied on this judgment in directing that the BTSB file a supplemental affidavit and he was satisfied that the supplemental affidavit complied with the Supreme Court's directions.
Mr Justice Kelly could not see that the society had demonstrated an arguable case to the effect that the tribunal was wrong in its conclusion. Mr Justice Kelly held that there was no necessity to describe the documents in greater detail than had been done and that, to do so, would run the risk of diluting or perhaps even destroying the privilege which was being asserted and he refused leave on this ground.
Secondly, the society claimed that, by holding that the onus was on the society to adduce evidence to question the validity of the legal professional privilege claimed, the tribunal reversed the onus of proof on the challenger to the claim of the privilege.
Mr Justice Kelly held that there was no basis to suggest that the tribunal was incorrect in its approach in any respect. Mr Justice Kelly said it was clear from his own judgment in Miley v Flood [2001] 1 ILRM 489, following the Smurfit Paribas case, that the onus of proving that the claim to privilege was justified was upon the party asserting it.
This was duly done in Dr Lawlor's affidavit and thereafter the onus moved to the challenger. Mr Justice Kelly said that, to challenge the claim of privilege, the society had to do so by evidence and none was adduced. Mr Justice Kelly held that there was no arguable case shown to support the view that the tribunal reversed the onus of proof. Mr Justice Kelly said that, on the contrary, it identified and applied the correct principles.
The third ground upon which the society sought to impugn the tribunal's ruling was that it was wrong in law and misdirected itself in refusing to inspect the relevant documents or to permit a cross-examination of Dr Lawlor. Mr Justice Kelly said that the tribunal was correctly satisfied as to the claim of privilege as set out in the supplemental affidavit and there could be no justification for an examination of the documents or a cross-examination on the affidavit.
On the issue of cross-examination, Mr Justice Kelly referred to his decision in Duncan v The Governor of Portlaoise Prison [1997] 1 IR 558 wherein, at page 574, he expressed the view that the circumstances in which it may be permissible to so cross-examine are extremely rare and this was because there were a variety of other remedies available to test the matter contained in the affidavit of discovery including, obtaining orders for further and better discovery, delivering interrogatories and an inspection by the court of the relevant documents.
He continued, at page 574, to state: "Furthermore, it appears to me to be wholly undesirable that the court should, save in the most exceptional cases, be called upon to deal with questions such as the existence or non-existence of a document in circumstances where such a question might impinge to a serious extent on the issues in the action. Clearly at the stage when an issue of discovery of this type is being argued, the court cannot be fully au fait with all the issues in the proceedings.
I do not in this judgment wish to specify the rare circumstances in which cross-examination on an affidavit of discovery may be permitted. But it does appear to me that when permitted at all, it should only arise in circumstances where it is both necessary and where other remedies, such as those already mentioned, prove inadequate." As regards the issue of a court or tribunal inspecting the documents, Mr Justice Kelly referred to page 576 of his decision in Duncan wherein he said that there might be a case where cogent evidence might be adduced to suggest that a claim to legal professional privilege was being wrongfully asserted and, in which case, the court could direct production of the documents in order to ascertain whether or not the documents were truly privileged.
In the present case, Mr Justice Kelly was satisfied that no arguable case was made out under this heading.
In conclusion, Mr Justice Kelly held that, while the burden of proof in an application for leave to commence judicial review proceedings was light, the society failed to discharge this burden in respect of any of its arguments. Mr Justice Kelly refused leave to apply for judicial review and dismissed the application.
Solicitors: Malcomson Law for the applicant; John V. Nolan for the respondent; McCann Fitzgerald for the notice party.
Cathleen Noctor,
Barrister.
