In a departure from usual practice, the Court of Appeal has ordered that an affidavit be sworn by a practising solicitor verifying that privilege calls made in a process of inspection of documents are properly categorised. The court has also confirmed again that to defeat a claim of privilege on grounds of dishonesty or moral turpitude, evidence of such conduct will be required.
In the case before the court,1 the High Court had previously appointed receivers over the assets of a number of the defendants. The receivers had been granted wide ranging powers, including the power to inspect documents. During the inspection process, the defendants had claimed privilege over certain of these documents. In order to assess the privilege claim, the receivers argued that they needed to understand the type and nature of each document over which privilege was being asserted. The receivers had complained that the descriptions provided by the defendants for these documents were unclear.
To address this complaint, the High Court had ordered the defendants to disclose the “subject title, heading to communications and names of attachments and documents” over which privilege was claimed. The defendants had appealed this order. They argued that this type of disclosure had the potential to reveal the substance of the content of each document and that there was a real risk that the privilege claimed could be fatally undermined.
The Court of Appeal first considered whether the defendants were entitled to maintain their claim of privilege given that the courts had already found as a fact that some of these defendants had defied earlier court orders. The court noted that legal professional privilege could only be defeated in cases involving a clear element of moral turpitude. An apprehension by the receivers that the inspection process would be intentionally abused fell short of proof that such activity had already been deliberately engaged in by the defendants.
However, the court was satisfied that the receivers’ concern in respect of a lack of clarity was reasonable. The receivers should be provided with a meaningful narrative in respect of each document which gave the most detailed description possible of the document; albeit one which did not disclose any detail as to its privileged contents. The receivers would then be able to form a reasoned judgment as to whether the document had been validly categorised as privileged.
In addition, the solicitor responsible for advising on the discovery process, insofar as the privileged documents were concerned, should swear an affidavit stating that he/she had inspected each of the documents over which privilege had been maintained and that in their professional opinion each such document had been properly categorised.
This last element of the judgment will be of interest to litigants and practitioners alike whether in the context of the type of inspection which arose here or in the wider context of discovery generally. In Ireland, discovery is made on oath. The affidavit of discovery is sworn by the party making discovery rather than their solicitor. The affidavit will contain details of the documents which are being discovered and made available for inspection as well as those which will not be available for inspection because they are privileged. While an affidavit of discovery is not conclusive, the courts are usually reluctant to go behind the averment of a deponent that proper discovery has been made. There is usually no independent requirement for the solicitor to separately verify on oath, the contents of their client’s affidavit. It remains to be seen what effect, if any, this significant departure from usual procedure will have on practice here. It may be that this case is distinguishable by its facts.