Hansfield Developments & Ors -v- Irish Asphalt Ltd & Ors [2009] IEHC 420 (21 September 2009)

Hansfield Developments & Ors -v- Irish Asphalt Ltd & Ors [2009] IEHC 420 (21 September 2009)

The court held that legal professional privilege, including litigation privilege and common interest privilege, applies where the dominant purpose of document creation was litigation or legal advice, and that disclosure to a third party does not waive privilege if a sufficiently close legal interest exists. The court rejected a restrictive 'common solicitor' test for common interest privilege, instead adopting a broader approach based on the relationship and purpose of disclosure. Selective disclosure may result in waiver only where unfairness or misleading use arises. Photographs and factual records may be privileged if created for litigation. Each category of documents must be assessed...

Citation
[2009] IEHC 420
Parties
Plaintiffs: Hansfield Developments, Viking Construction, Menolly Properties and Menolly Homes; Defendants: Irish Asphalt Limited, Lagan Holdings Limited, Lagan Construction Limited, Lagan Cement Group Limited (formerly known as Lagan Holdings Limited) and Linstock Limited
Jurisdiction
Ireland
Judgment Date
21 September 2009
Procedural Posture
Commercial Court Application / Interlocutory Application for Inspection of Documents Over Which Privilege Is Claimed
Outcome
Application granted in part and refused in part
Legal Topics
Legal Professional Privilege, Litigation Privilege, Common Interest Privilege, Waiver of Privilege, Discovery of Documents
Civil Procedure Evidence Legal Professional Privilege Litigation Privilege Common Interest Privilege Waiver of Privilege Discovery of Documents

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Parties

Hansfield Developments, Viking Construction, Menolly Properties and Menolly Homes

Plaintiffs

Irish Asphalt Limited, Lagan Holdings Limited, Lagan Construction Limited, Lagan Cement Group Limited (formerly known as Lagan Holdings Limited) and Linstock Limited

Defendants

Procedural Posture

Commercial Court Application / Interlocutory Application for Inspection of Documents Over Which Privilege Is Claimed

Legal Issues

  1. 1 Whether documents over which privilege is claimed are protected by legal advice privilege, litigation privilege, or common interest privilege
  2. 2 Whether disclosure to third parties (e.g., Helsingor Limited, Reputation Inc.) amounts to waiver of privilege
  3. 3 Whether the dominant purpose of document creation was litigation or another purpose (e.g., remedial works, investigation)

Ratio Decidendi

The court held that legal professional privilege, including litigation privilege and common interest privilege, applies where the dominant purpose of document creation was litigation or legal advice, and that disclosure to a third party does not waive privilege if a sufficiently close legal interest exists. The court rejected a restrictive 'common solicitor' test for common interest privilege, instead adopting a broader approach based on the relationship and purpose of disclosure. Selective disclosure may result in waiver only where unfairness or misleading use arises. Photographs and factual records may be privileged if created for litigation. Each category of documents must be assessed...

Court Disposition

Application granted in part and refused in part

Orders

  • Plaintiffs required to produce for inspection certain documents over which privilege was not established or was waived
  • Privilege upheld over documents where dominant purpose was litigation or legal advice, or where common interest privilege applied