Freedom of Information Act
Disclosure in the Context of Litigation
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John M E Lyden, FSCSI, FCInstCES, MRIN, MCIArb, MEWI
Construction Contract Consultant, Arbitrator, Chartered Quantity Surveyor, Conciliator, Mediator - Carrigaline, County Cork, Ireland-
Freedom of Information Act 2014, section 31(1)
This section provides that, in the context of litigation, a public body may refuse to disclose certain documents. It states:
“(1) A head shall refuse to grant an FOI request if the record concerned –
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege”
Legal professional privilege applies to a wide range of proceedings, including tribunals of inquiry and private arbitration, but the exemption under section 31(1) of the FOI Act only seems to apply to proceedings in a court.
Disclosure and discovery of documents in litigation
To understand this ground for refusal of disclosure, it is necessary to discuss the general principles of the law regarding disclosure and discovery of documents in litigation.These principles are well established in the common law. These principles are complex but, in essence, a party in litigation is entitled to see all documents in the other party’s possession that are relevant to the case and which are necessary for fairly resolving the case. These include hard copy and electronic documents but not those which are covered by legal professional privilege.
The purpose of discovery was discussed by the Supreme Court in Allied Irish Banks v Ernst & Whinney [1993] 1 IR 375 at 390,in which Finlay CJ said:
“the basic purpose and reason for the procedure of discovery remains identical in both instances. It is to ensure as far as possible that the full facts concerning any matter in dispute before the court are capable of beingpresented to the court by the parties concerned, so that justice on fullinformation, rather than on a limited or partial revelation of the facts arising in a particular action, may be done” [emphasis added]
General principlesof the law regarding discovery
In Ireland, these common law principles are codified in the Rules of the Superior Courts, Order 31, rule 12, as follows:
Rule 12(1) provides:
“Any party may apply to the court … for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession, power or procurement relating to any matter in question therein.”
Rule 12(5) provides:
“An order shall not be made under this rule if and so far as the court shall be of opinion that it is not necessary for disposing fairly of the cause or matter or for saving costs”
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Therefore, before making an order for discovery, the court must be satisfied of the following:-
(a) the documents sought are relevant to the matter at issue in the case;
(b) the discovery is necessary for disposing fairly of the issues in question in the case or for saving costs in the case
The applicable principles in Ireland are analysed comprehensively in the textbook‘Discovery and Disclosure’, second edition 2013, by William Abrahamson, James Dwyer, Andrew Fitzpatrick. I will cite it frequently in this paper.
Discovery and Disclosure [para 6-01] states:
“A party seeking an order for discovery must demonstrate that the documents sought are relevant to the matters at issue in the case (the “relevance requirement”) and that discovery is necessary either for the fair disposal of the case or to save costs (the “necessity requirement”)”
The relevance requirement
In Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company(1882) 11 QBD 55 at 63,Brett LJ set out the well known test for discovery, as follows:
“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not whichmust - either directly or indirectly enable the party ... to advance his own case or to damage the case of his adversary”
That test is quite wide.Mr Justice Fennelly, in Ryanair v Aer Rianta[2003] 4 IR 264 at 275,said that:
“It has long been accepted as laying down the appropriate test of relevancy”
The law in Ireland was reviewed recently in the decision of Mr Justice Clarke in Hartside Ltd v Heineken Ireland Ltd [2010] IEHC 3, 15 January 2010.
Clarke J said:
“5.4 However, the point of principle which arises is as to the approach which the court should take where the real reason why a set of documents is said not to be relevant is that it is argued that there is no legitimate basis for suggesting that the issue to which those documents might be relevant can properly arise in the case.
5.5 ... Once it is probable that a document would be relevant to the calculation of loss, then its discovery must be directed (in the absence of any other good reason for not so doing) even though there might well be a risk that loss will never come to be assessed by the court at all. Loss is an issue because it is pleaded and denied. Whether it may be reached as a consequence of decisions on other issues is neither here nor there in the context of discovery. To take any other view, would be to invite the court to attempt to resolve potentially contested issues at the preliminary stage of a discovery application. ...” [emphasis added]
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In regard to relevance of documents, Discovery and Disclosure [para 6-17] states:
“It is sufficient if the issue to which the documents are said to relate has been raised by one party and denied by another”
The necessity requirement
Mr Justice Finlay, the then Chief Justice, stated in Allied Irish Banks v Ernst &Whinney[1993] 1 IR 375 at 388, 389that:
“the Court should only ... refuse such an application if it is satisfied that it is notnecessary, either at all or at the time at which it is made, either for disposingfairly of the cause or matter or for saving costs” [emphasis added]
In Ryanair v Aer Rianta[2003] 4 IR 264 at 275, Mr Justice Fennelly held that the onus lies on the party seeking discovery to:
“discharge the prima facie burden of proving that the discovery sought “is necessary for disposing fairly of the cause or matter””
However, that burden is lessened somewhat by the following dicta of Mr Justice Geoghegan in Taylor v Clonmel Healthcare[2004] 1 IR 169 at 182:
“If a party is entitled to a document on grounds of relevance to assist him in his case, on the ordinary discovery principles it will usually be “necessary”. Save in exceptional cases, a formal verification of this in the affidavit will be sufficient on a prima facie basis. ... It would defeat the whole purpose ofdiscovery if detailed reasons had to be given in the grounding affidavit as to necessity” [emphasis added]
In Allied Irish Banks v Ernst & Whinney [1993] 1 IR 375 at 390,Finlay CJ said:
“the basic purpose and reason for the procedure of discovery remains identical in both instances. It is to ensure as far as possible that the full facts concerning any matter in dispute before the court are capable of beingpresented to the court by the parties concerned, so that justice on fullinformation, rather than on a limited or partial revelation of the facts arising in a particular action, may be done” [emphasis added]
On the other hand, in Ryanair v Aer Rianta[2003] 4 IR 264 at 277,Fennelly J said:
“The public interest in the proper administration of justice is not confined to the relentless search for perfect truth. The just and proper conduct of litigation also encompasses the objectives of expedition and economy”
At page 276 of the law report, Fennelly J emphasised that:
“In order to establish that discovery of particular categories of documents is “necessary for disposing fairly of the cause or matter”, the applicant does not have to prove that they are, in any sense absolutely necessary. Kelly J considered the matter in his judgment in Cooper Flynn v Raidió Telefís Éireann [2000] 3 IR 344. He derived the useful notion of “litigious advantage” from certain English cases. He adopted the following statement of Bingham MRin Taylor v Anderton (CA) [1995] 1 WLR 447 at p 462:
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“... The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not beingproduced for inspection ...”
It may not be wise to substitute a new term of art, “litigious advantage” for the words of the rule. Nonetheless, the discussion gives guidance as to the context in which the matter has to be considered. Within that context, the court has to reach a conclusion as to the likely effect of the grant or refusal of the discovery on the fair disposal of the litigation”[emphasis added - only a short part of the statement of Bingham MR (cited by Fennelly J) has been reproduced here]
At page 277 of the law report, Fennelly J remarked that:
“it is difficult to see how a party ... which contests all the relevant facts onthe pleadings ... can plausibly ask the court to deprive its opponent of access to documents which will enable it to prove matters which it disputes”
Discovery which is burdensome
In modern commercial litigation, including disputes involving construction projects, there can be an enormous amount of electronic and hard copy documents. Collating, indexing and disclosing such documents can be very onerous. It can be quite expensive in the time expended by solicitors and others. I have to say that, in many years of dealing with construction disputes, I have rarely seen discovery of documents turn a good case into a bad case or vice versa. Normally, discovery only marginally affects the outcome of a case.
So can a party resist disclosure because it is burdensome? Discovery and Disclosure [para 6-64] cites the following authorities, inter alia:
In Framus Ltd v CRH plc [2004] 2 IR 20 at 38, Murray J said:
“... there must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant ...”
In Astrazeneca AB v Pinewood Laboratories Ltd [2011] IEHC 159, 5 May 2011, Kelly J said:
“The court, in considering an application for discovery, must also bear in mind the concept of proportionality. That involves a consideration of the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of an applicant or damage the case of his opponent. ...” [emphasis added]
Discovery of confidential documents
Discovery and Disclosure [para 6-76] refers to the decision in Telefonica O2 Ireland Ltd v Commission for Communications Regulation [2011] IEHC 265, 30 June 2011, where Clarke J said:
“[para 3.3] In order for discovery or disclosure to be appropriate the documents or materials sought must be shown to be relevant.
If the documents are relevant, then confidentiality (as opposed to privilege) does not of itself, provide a barrier to their disclosure.
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The court is required to exercise some balance between the likely materiality of the documents concerned to the issues which are anticipated as being likely to arise in the proceedings, and the degree of confidentiality attaching to the relevant materials. In that context, the confidence of third parties may be given added weight for it must be accepted that those parties who become embroiled in litigation will necessarily have to disclose information about their confidential affairs when that information is necessary to the fair and just resolution of the relevant litigation ...” [emphasis added]
Discovery sought solely to attack credibility
Discovery and Disclosure states:
“6-33 It has traditionally been thought that a document would not be deemed relevant to a matter at issue in the case where it was sought solely for the purposes of undermining the credibility of a party or witness to the proceedings.
6-34 Stafford v Revenue Commissioners, unreported, Supreme Court, 27 March 1996, concerned the applicant’s attempt to import a bronze statue into the State. The respondents sought discovery of all documents concerning previous importations of bronze statues arranged by the applicant. ... O’Flaherty J agreed with previous authority which established that discovery would not be ordered where the material sought would be used solely for cross-examination of a witness as to his credibility. The court held that it would be oppressive to impose such a disclosure obligation on any party”
What happens if a party fails to make full disclosure?
Where a defendant fails to comply with an order for discovery, the court can strike out its defence or counterclaim. And a plaintiff’s claim (or its defence to a counterclaim) may also be struck out if the plaintiff fails to make proper discovery.
The Rules of the Superior Courts, Order 31, rule 21, provide:
“If any party fails to comply with any order … for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff be liable to have his action dismissed … and, if a defendant, to have his defence, if any, struck out …”
In Johnson v Church of Scientology,unreported, Supreme Court,ex tempore, 7 November 2001, Keane CJ said at p11:
“The court has a jurisdiction and there is no issue about this, to strike out proceedings or to strike out a defence filed by a defendant where it is satisfied that the extent of the non-compliance with the court’s order is such that it is not possible to have a fair trial as a result and of course that may also arise where it appears from the affidavit that some particular documents or some category of documents have been in factdestroyed by the party concerned, whether innocently or whether deliberately in order to interfere with the further conduct of the case”
In W vW, unreported, Supreme Court, 25 November 1999, Barron J said:
“When the failure to make proper discovery is deliberate, this is perjury. The courts have the remedy to strike out the pleading of the perjuring party. Unfortunately, this
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remedy is seldom granted because, in my view, too great a leniency is given to persons in default. It is one thing to indulge in a bona fide legal dispute as to whether or not any particular document is relevant and should therefore be discovered. It is a totally different thing to delay deliberately in furnishing discovery or in concealing deliberately documents which are known to be relevant. It is this latter behaviour for which there should be an adequate sanction”
The courts rarely strike out a defence, or a claim, on the grounds that a party has failed to properly disclose its documents. However, recently in Go2CapeVerde Ltd v Paradise Beach Aldemento Turistico Algodoeiro SA [2014] IEHC 531, 4 November 2014, the court did strike out the plaintiffs’ defence to the defendants’ counterclaim. Baker J said:
“43. The conclusion I draw as a matter of fact is that the failure by the plaintiffs … to make discovery was deliberate, and the documents which had come to light incidentally could not have been omitted other than by a deliberate intervention or intention on the part of the person disclosing documentation to conceal them. Accordingly, it seems to me that there was a failure to make discovery, and that the failure was deliberate and malicious. The failure was on the extreme end of the spectrum of culpability. …
46 I am mindful of the reluctance shown by the Superior Courts to strike out a claim for failure to make discovery, and in particular the emphasis found in recent case law on the importance of allowing litigation to be decided on oral evidence by a trial judge. Equally I am mindful of the importance of the preservation for all parties to the litigation of the interests of justice. With that in mind, and noting too that I must be satisfied that I can draw some inference as to the merits of the case from the omitted documents or class of documents, I am satisfied that the correct approach to the motion is to consider that the interests of justice cannot now be met by allowing the plaintiffs to continue to defend the counterclaim. …
Accordingly I am of the view that the correct approach, to what I find to be a serious breach by the plaintiffs … of their … obligations to make discovery, is to strike out the defence to the counterclaim by each of them, as it is in respect of the matters pleaded in counterclaim that the omitted documents may be relevant. …” [emphasis added]
Legal professional privilege
This has long been regarded by the common law as a major cornerstone of justice. In R v Derby Magistrates’ Court [1995] 3 WLR 681, Lord Taylor CJ said:
“The principle which runs through all these cases … is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests” [emphasis added]
Two categories of legal professional privilege
Legal advice privilege and litigation privilege
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These two categories were mentioned by Mellish LJ in Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 658, thus:
“To be privileged it must come within one of two classes of privilege, namely, that a man is not bound to disclose confidential communications made between him and his solicitor, directly, or through an agent who is to communicate them to the solicitor, or, secondly, that he is not bound to communicate evidence which he has obtained for the purpose of litigation.”
Legal advice privilege
This exemption from disclosure was clearly endorsed by the Supreme Court in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469 at 478, in which Finlay CJ said:
“… I accept that where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client” [emphasis added]
Discovery and Disclosure states:
“39-13 … The authorities reveal that, in order to attract legal advice privilege, the material in question must satisfy a number of criteria.
(a) First, the material must constitute or refer to a communication between lawyer and client.
(b) Secondly, that communication must arise in the course of the professional lawyer-client relationship.
(c) Thirdly, the communication must be confidential in nature.
(d) Fourthly, it must be for the purpose of giving or receiving legal advice. …
39-15 The communication must be between lawyer and client. Legal advice privilege does not cover communications with third parties. …”