​In Kelland Homes Ltd v Ballytherm Ltd [2019] IEHC 2019, the third named defendant, Covestro BV, failed to discharge the onus of proving that the dominant purpose of a series of eight emails was for apprehended litigation, and their claim of litigation privilege failed.

The Plaintiff, a developer, had used insulation that was manufactured using a pre-mixed foam supplied by Covestro in the construction of a residential development. It was alleged in the proceedings that the houses in the development were experiencing sinking due to a defect in the insulation material. The manufacturer of the insulation claimed that the flaw in the insulation arose out of defective pre-mixed foam.

The parties had exchanged discovery on a voluntary basis, and in their affidavit of discovery, Covestro claimed litigation privilege over a series of emails, despite their having been written several months before they put a 'litigation hold' in place.

The court accepted that the emails were sent after a date when litigation was apprehended, but found that they were created in response to a request for information about a compensation offer already made, and as such did not satisfy the 'dominant purpose' element of the test for litigation privilege.

The High Court ordered inspection of all of the documents sought.