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M. (M.F.) v. W. (P.) [2001] IEHC 122 (22nd June, 2001)
THE
HIGH COURT
1997
No. 2758P
IN
THE MATTER OF AN APPLICATION PURSUANT TO THE PROCEEDS OF CRIME ACT, 1996
BETWEEN
M.
F. M.
PLAINTIFF/APPLICANT
AND
P.W.
DEFENDANT/RESPONDENT
JUDGMENT
of Finnegan J. delivered on the 22nd day of June, 2001
.
1. This
matter came of for hearing before Mr. Justice Moriarty of the 23rd June, 1997
but the hearing thereof was not completed. Because of his Tribunal commitments
great delay would be experienced if the completion of the matter should be
delayed until he is available. In these circumstances the Plaintiff wishes to
have the hearing recommenced before another judge.
2. The
Plaintiff obtained an Order for Discovery from Mr. Justice O’Sullivan on
the 9th March, 2001 in the following terms:-
“It
is ordered that the Plaintiff do make discovery on oath within two weeks from
the date hereof of any notes in his possession or power taken by Solicitor or
Counsel of the evidence under the proceedings herein heard by Mr. Justice
Moriarty on the 23rd day of June, 1997 - the Affidavit on behalf of the
Plaintiff to be sworn by Francis Cassidy.”
3. Pursuant
to that order Francis Cassidy swore an Affidavit of Discovery on the 3rd April,
2001. The relevant notes are listed in the Schedule Part II thereof in the
following terms:-
“Attendance
Notes of proceedings and evidence tendered before Mr. Justice Moriarty in the
above entitled proceedings on the 23rd June, 1997.”
4. The
Plaintiff claims that the notes are covered by legal professional privilege.
The Affidavit of Discovery contains in paragraphs 4, 5 and 6 thereof the
following averments relevant to the issue of privilege:-
“4.
The
document constitutes my hand written attendance of the 23rd June, 1997. As
such it contains references to personal attendances, Court Orders, evidence,
personal notes etc.. I do not have the skill of a stenographer and this
document does not purport to be, nor was it ever intended to be, a transcript
of evidence taken before the Court. I am satisfied that while it does record
much of the evidence taken it also misses much of it. Furthermore, many of the
sentences are incomplete and, at this remove, I find it difficult to interpret.
5.
It
was prepared by me not simply in contemplation of legal proceedings, but in the
course of these legal proceedings, so that I could draw to the attention both
of my Counsel and my client certain elements of the evidence for discussion,
advice and highlighting. The document includes comments, marks and notes
specially for the purpose of drawing the attention of certain points both to
Counsel and my clients. It was prepared specifically with my function as
Solicitor to the Plaintiff in mind and to assist me in its execution.
6.
The
Plaintiff claims privilege over the documents as it is of material prepared by
the said Solicitor for the purpose of giving legal advice in the course of
these proceedings. The Plaintiff asserts that the notes in the Schedule hereto
are covered by legal professional privilege.”
5. The
sole issue before me is whether the Plaintiff is entitled to claim legal
professional privilege in respect of the documents discovered in the Schedule
Part II to the Affidavit of Discovery.
6. While
no authority other than
Smurfit
Paribas Bank Limited -v- A.A.B. Export Finance Limited
(1990) 1 IR 469 has been cited to me, there is a considerable number of
reported decisions relevant to the issue here. There are however no decisions
directly in point although there are obiter statements which are. Many of the
reported decisions relate to the discovery without privilege of a transcript of
a shorthand writers note, taken in proceedings in open Court on behalf of a
party to those proceedings, in later proceedings to which that party is also a
party.
In
Nordon
-v- Defries
(1882) 8 QBD 508 the facts were as follows. The Plaintiff had a shorthand note
taken of proceedings in an action
Nordon
-v- Nordon
with a view to it’s use in subsequent proceedings in that action but also
for the purposes of the action
Nordon -v- Defries
.
Mathew J. at p. 150 said:-
“It
is probable in this case that the notes of the evidence were taken as well with
a view to ulterior proceedings in the case of
Nordon
-v- Nordon
as for the purpose of this action. If so the notes would seem to have been
clearly privileged in that suit, and it is difficult to see why their being
privileged in one suit should destroy the privilege in another arising out of
the same subject matter. It seems unreasonable that a privilege in each should
become a privilege in neither”.
7. That
decision has been criticised by Bray on discovery at p. 398 and in the majority
judgments of Cozens Hardy M.R. and Buckley L.J. in
Lambert -v- Home
(1914) 3 KB 86. That case arose out of a road traffic accident. In two
earlier actions arising out of the same accident which were heard together the
Defendant had a shorthand note taken for the purposes of an appeal in that
action and also for the purposes of defending the claim of Lambert which was
anticipated. The transcript of the note was held not to be privileged in the
action by Lambert against the Defendant. Cozens Hardy M.R. at p. 90 says:-
“It
is admitted that the transcript relates to the matters in question in this
action, but it is contended that the document is privileged - that is in
substance a part of the Defendant’s brief, as a statement of what some,
or possibly all, of the witnesses who were present at the collision have sworn,
and that it is not fair to require the Defendant to produce that which has been
brought into existence under the instructions and at the cost of the Defendant
in anticipation of the present litigation. Now the proceedings in the County
Court were public. Anyone present could listen and take a note of what the
witnesses said. The transcript did not involve any such “professional
knowledge, research and skill” as Bowen L.J. referred to in
Lyell
-v- Kennedy
.
There is no original composition in the document. It is a mere transcript of
that which was publici juris. A Defendant who has obtained at his own cost a
copy of a document, not in his possession, which is not itself privileged,
cannot decline to produce the copy, although he obtained it in anticipation of
future litigation. So here a mere reproduction in a physical form of material
which was publici juris cannot, I think, be privileged.”
8. More
relevant to the facts of this application are the observations albeit obiter of
Buckley L.J. at p. 93 in relation to
Nordon
-v- Defries
:-
“The
shorthand notes had been taken in an action of
Nordon
-v- Nordon
.
Discovery of them was asked for the purpose of using them in an action of
Nordon -v- Defries
.
Mathew J. says that in that action of
Nordon
-v- Nordon
the shorthand notes would seem to have been clearly privileged. In my judgment
they would not have been privileged at all. If there had been subsequent
proceedings in
Nordon
-v- Nordon
,
as upon an inquiry as to damages or a reference before the Master or any
subsequent step, the notes taken at the trial of
Nordon
-v- Nordon
would not have been privileged.”
9. Thus
the shorthand notes would not enjoy privilege even within the action in which
they were taken.
10. The
dissenting judgment of Channell J. while it appeals to common sense has not
been adopted in any subsequent case. He puts the Defendant’s case as
follows at p. 92:-
“That
which was said by the witness in the box is, I agree, relevant, and it was
public property in the sense that it might have been heard and might have been
recorded by any one; but words are evanescent, other people did not record
them, and I did, and I did so solely for my use and protection in the present
litigation which I then anticipated. I brought it into existence as a document
the document of which inspection is asked, and I brought it into existence
through my solicitor for the express purpose of instructing my solicitor and
counsel both as to advising me whether I should defend the present claim and to
enable them to conduct my defence for me if I did defend. It is part of my
brief and I claim privilege for it. The record is not public property, though
the words which it records may have been.”
“Here
the document is a full transcript of all the evidence. If it had been a note
taken by counsel instructed to watch the previous proceedings, with a view to
taking a note of the part of the evidence which in his judgment would be
material in the present proceedings, would not that be privileged? And is
there any difference? Here the solicitor is said to have in fact underlined
the material passages. If this document is to be considered as the proof of
the shorthand writer it is I think clearly privileged.”
12. Finally
he deals briefly with the fact of the underlining of part of the transcript at
p. 96.
“Further,
in this case the document which the Defendant has is stated to have been so
underscored as to direct attention to the passages which the Defendant’s
solicitor considers material. That part of it certainly is privileged, and so
the order made amounts to an order to make a new copy for the Plaintiff’s
benefit, and I do not think such an order ought to be made. These
difficulties, however would not arise if the document is privileged, and my
view is the transcript should be held privileged as a document which has only
come into existence for the purposes of this litigation.”
13. Insofar
as there is a note which is an admixture being in part a note of proceedings
and/or evidence and in part notes made by a solicitor for the purpose of the
litigation the practice of the Courts has been to allow production with the
latter parts covered up: this was done in relation to notes taken by a
solicitor of proceedings in chambers in a prior action in
Ainsworth
-v- Wilding
(1900) 2 Ch 315. Sterling J. having looked at the attendances in issue
permitted portions being statements of what transpired in chambers to be
inspected the remainder to be covered up.
14. There
is, it seems, no distinction to be drawn between a shorthand note and a note
taken by a parties solicitor. In
Re:
Worswick,
Robson
-v- Worswick
(1888) 33 Ch.D. 370 North J. at p. 372 - 373 says:-
“In
the case of
Nicholl
-v- Jones
,
Vice-Chancellor Wood ordered that the indorsement of counsel should be
produced, as well as the transcript of shorthand notes in this respect. Then
we have a recent case before Mr. Justice Kay,
Rawstone
-v- Preston Corporation
,
which I believe is the last case on the subject. The point there was precisely
the same as here. I do not stop to read his decision, but it was that a
transcript of notes was not privileged, and must be produced: that is in
accordance with my own view, and upon those two cases I think I ought to
act.”
15. Later
in the judgment he says:-
“It
has been put in argument that supposing the shorthand notes had been taken by
the solicitor’s clerk - or the solicitor himself - they would have been
privileged. I do not admit that would be so. A mere verbatim report of the
evidence, whether by the solicitor’s clerk, the solicitor, or counsel,
would not in my opinion be privileged.”
16. Thus
insofar as transcripts or solicitor’s notes of proceedings and evidence
are concerned the position as to privilege is clear, they are not privileged in
a subsequent action. In relation to their being privileged in the action in
which they are taken there are obiter statements to contrary effect in
Nordon
-v- Defries
and
Lambert
-v- Home
.
The statement of Buckley L.J. in the latter seems to me to be more in accord
with principle - insofar as the solicitor’s notes are of evidence and
proceedings they are a record of what was publici juris and so not entitled to
privilege in the action in which they are taken. The obiter comments of North
J. in
Re:
Worswick
to the like effect are also persuasive in this regard. While I find the common
sense approach of Mathew J. in
Nordon -v- Defries
and of the dissent of Channell J. in
Lambert
-v- Home
appealing I feel constrained following a review of the authorities to accept as
correct the views of Buckley L.J. in the former and of North J. in Re
:
Worswick
.
Accordingly the solicitors note of the evidence and proceedings is not
privileged. Insofar as it contains other material designed to assist the
Plaintiff in the prosecution of the action it is privileged. I propose to
examine the note to determine the extent to which it should be covered up prior
to the inspection by the Notice Party.
17. I
do not consider it likely that in the course of an action which unlike the
present ran without interruption the Court would lightly exercise it’s
discretion and order discovery such as this during the course of the action.
It might be appropriate to do so in special circumstances, or in ulterior
proceedings in the same action depending on the particular circumstances or
where as here the action having been part heard requires to be reheard.
© 2001 Irish High Court
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