The High Court has confirmed that in discovery, where inspection of documents is resisted on the basis of legal profession privilege, the privilege must be properly substantiated to allow an opponent and the court to assess the claim.
Ryanair obtained discovery and now sought inspection of documentation used by Channel 4 in the making of the Dispatches “Secrets from the Cockpit” programme, broadcast in 2013. The airline alleged that the programme was defamatory of it. Channel 4 resisted inspection of certain documents claiming legal professional privilege (“LPP”).
As required by the court rules, Channel 4 had listed these documents in its affidavit of discovery. However, Ryanair complained that Channel 4 had not provided adequate descriptions of the documents so that it was unable to assess whether LPP did apply.
Meenan J confirmed that where LPP is claimed, the party making discovery must provide a “meaningful narrative” of the document to allow the privilege claim to be assessed. With regard to emails, depending on the nature of each document, the inclusion of the subject heading alone may not amount to a meaningful narrative. In the circumstances, Channel 4 should provide a fuller narrative for each document here.
In addition, applying the Court of Appeal decision of Mahon J in IBRC v Quinn,1 the solicitor responsible for advising on the discovery process should swear an affidavit stating as an officer of the court that he/she has inspected each of the documents over which LPP is claimed and that in his/her professional opinion, each document has been properly so categorised.
This judgment on LPP is significant, particularly for those engaged in large scale discovery. It makes it clear that simply listing privileged documents in the affidavit of discovery will no longer suffice. Instead, thought and time will have to be applied to ensure that each document is supplied with a meaningful narrative. This will have to navigate a fine line between satisfying even a sceptical opponent that LPP applies but without disclosing information that could hint at the protected content.
The requirement that the advising solicitor also verify on affidavit that LPP is properly claimed reinforces the crucial role that solicitors, as officers of the court, play in ensuring the integrity of the discovery process.