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Judgment
Title:
McMullen -v- Kennedy
Neutral Citation:
[2008] IESC 69
Supreme Court Record Number:
244 & 249/07
High Court Record Number:
2000 1628 p
Date of Delivery:
12/17/2008
Court:
Supreme Court
Composition of Court:
Fennelly J., Kearns J., Macken J.
Judgment by:
Macken J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Concurring
Macken J.
Kearns J.
Fennelly J.


THE SUPREME COURT
                                        244 & 249/07
Fennelly, J.
Kearns, J.
Macken, J.

Between:
Michael Colin Geoffrey McMullen

                            Plaintiff/Appellant
AND
Giles J. Kennedy Practising as
Giles J. Kennedy & Company Solicitors

                            Defendant/Respondent

Judgment delivered on the 17th day of December 2008 by Macken J.
___________________________________________________________
This is an appeal from a judgment of Murphy, J. delivered on the 17th July 2007 and the order made thereon on the 24th July 2007 which in turn arises out of an order made by the Master of the High Court on the 6th July 2006, requiring the defendant to make discovery on oath of certain documents. That discovery was made by affidavit sworn on the 11th October 2006, and includes, inter alia, documents listed in the second part of the first schedule to the affidavit (documents numbered 162 – 491), in respect of which the deponent claims legal professional privilege in the terms normally used in that regard.
The Notice of Motion herein sought inspection, or what the appellant called “full and unimpeded access” for the appellant and his witnesses to such documentation, or in the alternative “a direction that the entire of the files representing the list of documents mentioned above be inspected by the High Court”. At the hearing before Murphy, J. the appellant represented himself, as he has done in the proceedings on this appeal, and the defendant was represented by counsel. The appellant was granted disclosure of document numbered 174, a letter dated the 17th May 1989 written by the defendant to Admiral Underwriting Agencies (Ireland) Limited and comprising a report, to which I will return later in this judgment. In addition the learned High Court judge ordered that documents numbered 171, 172 and 173, be examined by the court to determine whether they too should be disclosed. By a supplemental judgment delivered on the 24th July 2007 the learned High Court judge found that these latter documents did not come within the scope of the exception to the principle of legal professional privilege, and so could not be inspected. The respondent cross-appealed the judgment in respect of document number 174. At the end of the hearing of the appeal before this court counsel on behalf of the respondent withdrew that cross appeal, so that this judgment is concerned only with the decision on documents other than 174.
In order to place this appeal in a proper context, it is necessary to refer to the events which led to the commencement of these proceedings, as well as to several sets of earlier proceedings. It is fair to say that the appellant has at this stage been engaged in a lengthy and unfortunate saga of litigation. Substantial details of this history are set out in the judgment of the learned High Court judge and for the purposes of this appeal it is sufficient to give a summary of them.
The Charleville Estate Company Proceedings:
About 20 years ago at this stage, the appellant was a lessee of certain lands and premises in County Offaly. He was in dispute with the lessor of the lands to him, concerning a grievance he had about the public having access to parts of the lands, and as a result commenced a legal action against the lessor, Charleville Estate Company. The appellant wished to employ a particular senior counsel, Mr. Noel Clancy, although it seems clear that his solicitor felt that Mr. Clancy (who has since died) did not have particular expertise in the area of law in question. Having settled the action against Charleville Estate Company through that nominated counsel, the settlement broke down. The action had been settled on terms which, contrary to the appellant’s claimed instructions, did not permit him to re-enter the action, but provided only that there should be “liberty to apply” in respect of the settlement itself, a quite different form of relief, having a much more limited ambit and not the outcome he intended and believed he had secured. In consequence, the appellant’s application to re-enter the action when the settlement broke down was rejected by the High Court.

The Proceedings against Kent Carty & Co:
Arising out of the foregoing, the plaintiff sued Messrs Kent Carty & Co., who had been his solicitors in the first set of proceedings. The appellant’s claim in those proceedings also failed, mainly because his former counsel, who settled the first action on his behalf, gave evidence for the defendants in the second proceedings in which he accepted responsibility for the terms of the settlement. The appellant appealed the decision of Carroll, J. in the High Court to this Court and that appeal was also unsuccessful.
The Proceedings Against the estate of N. Clancy S.C.:
When, as a result of the finding by the Supreme Court, it became clear that the appellant could not succeed against his former solicitors, he next commenced proceedings against the representative of the estate of the late Mr. Clancy, his former senior counsel. Those proceedings claimed a significant number of causes of action against the late Mr. Clancy, but although they mentioned “negligence” in the section of the pleadings claiming damages, they did not in reality include any proper claim for negligence arising out of the making or drafting of the settlement. The statement of claim pleaded rather that his late counsel, having accepted the blame for the mistake which had occurred, thereby broke “all notions and bounds of confidentiality without protest complaint or reservation” and in effect by “pulling rank as senior counsel” persuaded the court to accept his version (i.e. Mr. Clancy’s version), in preference to that of the appellant in these proceedings, in consequence whereof he had lost his action in negligence against Kent Carty & Co. Mr. Clancy had “defected to the aid of his instructing solicitors” and this constituted unprofessional behaviour and conduct unbecoming a member of the Bar of Ireland and had caused significant damage to the plaintiff”.
An amendment made to the statement of claim was in the following form:
        “In proffering testimony as he did against the plaintiff, his late client, the defendant Noel Clancy SC in violation and contrary to every ordinance and law both civil and criminal since the ten commandments, did volunteer false witness, untrue and perjured himself to such culpable extent that his former lay client suffered manifest loss, discredit and shame and in so doing the defendant abused his position in humanity and especially as senior counsel at the honourable Bar of Ireland and set into the record evidence which is diametrically opposed to his very own account of the facts as truly and spontaneously they occurred in and around the years 1985-1987 and this claim herein is for this indictment also.”
The pleadings make it clear that the appellant’s real grievance was in his belief that his counsel betrayed him by acting unprofessionally in siding with the solicitors, had infringed the confidentiality which exists between counsel and client, and had behaved unprofessionally, because he had wrongly accepted that he was responsible for the mistakes made, this evidence being false when considered against Mr. Clancy’s own evidence spontaneously given to the appellant at the relevant time.
These proceedings were determined in the High Court (McGuinness, J.) after a full hearing, during which the appellant himself gave evidence, and also called witnesses from the firm of solicitors Kent Carty & Co. In her judgment McGuinness, J. described the plaintiff’s claims as having the following three central components:
1 The late Mr. Clancy, by giving evidence on behalf of the solicitors in the plaintiff’s action against those solicitors was in breach of his duty of confidentiality to his client the plaintiff and in breach of his obligations as a barrister;
2 Mr. Clancy had given untrue evidence at the hearing of the negligence action against his solicitors Kent Carty & Co. and gave that evidence by prior arrangement with that firm of solicitors or with the solicitors then acting for those solicitors and by that means acted contrary to the plaintiff’s interests, and
3 Kent Carty & Co. had acted negligently in failing to advise him properly concerning the nature of the settlement originally made in the proceedings with the lessor and in relation to the question of re-entering the proceedings after settlement, in consequence of which he suffered loss and damage.
Insofar as the second of the above headings is concerned, being of relevance to the present proceedings, McGuinness, J. found that there was no evidence to support the allegation. The witnesses called by the plaintiff to prove the allegation had not supported this contention. These witnesses were partners in the firm Kent Carty & Co. The learned trial judge found that there had been absolutely no conspiracy “to tinker with the evidence by Kent Carty”. As a result, the appellant was unsuccessful against the estate of the late Mr. Clancy, and he again appealed that finding to this court.
In the course of that appeal, he sought to rely on new evidence which emerged subsequent to the High Court hearing. This was based on document number 174 in the present application and described as “Report of Giles Kennedy”. It was addressed by the defendant in these proceedings to the underwriters of Kent Carty & Co. and the appellant in the Supreme Court appeal relied on the following paragraph:
        “On Friday 28th April 1989 our Mr. Kennedy took the opportunity to have an unofficial without prejudice word with Mr. Clancy. He advised Mr. Clancy as to what was happening to assess Mr. Clancy’s attitude. Mr. Clancy advised that as far as he was concerned the claimant did quite well and he would be in a position to give evidence that the claimant was advised of eth situation. We were aware, at the time of our discussions, that Mr. Clancy was acting for the claimant instructed by Mrs. O’Connor in respect of a rather serious motor accident. Accordingly it would appear as it Mr. Clancy may still have some influence over the claimant. As a tactic, we indicated to Mr. Clancy that our client, the insured herein, wished to join him in the proceedings and we were not keen to do so. This “little chat” might provide an opportunity and incentive to Mr. Clancy to dissuade the claimant.”
The appellant had previously sought, unsuccessfully, to have this report considered in the High Court, after delivery of the judgment, when the judge was already functus officio. That letter did not form part of the evidence in the High Court, and had not been read by the learned High Court judge at the time. The circumstances in which it was brought to the appellant’s attention do not need to be rehearsed at this stage, save to say that it appears to have been returned inadvertently to the appellant when papers in court were handed back to the parties.
A very clear exposé of the history of litigation originally against Charleville Estate Company, subsequently against his former solicitors and subsequently still against the estate of his former counsel, as well as an analysis of the judgments in the earlier proceedings is found in the judgment of Fennelly, J., delivered on the 15th March 2005, with which the other two members of this Court, Murray, C.J. and Hardiman, J. agreed fully. I gratefully adopt that exposé. This court affirmed the findings of the learned High Court judge, and rejected the appeal. In the Supreme Court, in analysing and considering this aspect of the matter Fennelly, J. considered the scope and ambit of the appeal, recognising that this was not an easy thing to do in the case of a lay litigant, as such a claimant does not enjoy the same advantage as a litigant represented by a solicitor or counsel. He drew attention to the propensity of the plaintiff to make accusations of impropriety against a number of persons, including judges. He identified the plaintiff’s reliance on the Kennedy letter as supporting his contention that it established a conspiracy existing between the defendant Kent Carty and the late Mr. Clancy under which the late Mr. Clancy gave false evidence accepting responsibility. Counsel on behalf of the late Mr. Clancy objected to the admission of what became known as the “Kennedy letter” based on well established principles of law but accepted that the court should rule on the matter after hearing the appeal under all other headings. The letter was therefore examined for the purposes of determining its admissibility as new evidence on the hearing of the appeal, having regard to the principles enunciated in Murphy v Minister for Defence [1991] IR 161.
The court examined whether or not it offered support for the appellant’s case against the solicitors pointing out, however that although the court had expressed certain concerns about the content of the letter, its author (the defendant in the present proceedings) was not a party to those proceedings and had not been heard. Fennelly J. stated, inter alia:
        “What support does the Kennedy letter offer for the conspiracy theory: that Mr. Kennedy, together with Mr. Clancy and the two solicitors mentioned arranged that Mr. Clancy would accept (falsely or otherwise) that he would take responsibility for the second? The only sentence referable to the evidence given by Mr. Clancy was: “Mr Clancy advised me that as far as he was concerned, the claimant did quite well and he was in a position to give evidence that the claimant was advised of the situation”. I cannot find any evidence whatsoever in this sentence to support Mr. McMullen’s conspiracy theory.” “Most importantly, the Kennedy letter does not offer any support at all for the proposition that Kent Carty & Co. were party or privy to any arrangement regarding Mr. Clancy’s evidence. The evidence of Ms. Madigan and of Mr. Carty, given in the High Court remains undisturbed and there is nothing in the Kennedy letter to displace it.”
Having examined the letter by reference to the appropriate test, for admissibility, Fennelly, J. held:
        “For these reasons, I do not believe that this letter should be admitted in evidence on the appeal. It clearly fails to satisfy the second heading of the test laid down in Murphy v Minister for Defence, namely that “(t)he evidence must be such that, if given, it would probably have an important influence on the result of the case”. In my view it could not have made any difference.”
The court also rejected the admission of that evidence as failing another test set down in the case of Murphy v Minister for Defence, supra., that is to say, that the evidence sought to be admitted was not “such that it could not have been obtained with reasonable diligence for use at the trial”. In consequence the letter was not admitted as part of the appeal at all, and the appellant was unsuccessful in the Supreme Court, his appeal failing under all headings.
The Present Proceedings:
It is against that very lengthy and almost continuous series of litigation that the application for inspection of documents contained in the second part of the first schedule to the affidavit of the defendant in the current proceedings must be considered.
Mr. McMullen is a lay litigant, and has been a lay litigant for a considerable period of time. While he was originally represented in the early proceedings, his pleadings in the action against the estate of the late Mr. Clancy are not easily understood, and the same can be said of the statement of claim filed in the present proceedings. In the proceedings against Kent Carty & Co., a negligence action, the central allegation against those defendants was that they had failed to ensure that the terms of the settlement permitted the plaintiff to re-enter his nuisance action against his lessor. In the subsequent proceedings, it was, inter alia, that there was some type of a conspiracy between the solicitors, the late Mr. Clancy, and the present defendant who was not even a party of those proceedings.
In the present proceedings, on my reading of the pleadings, the allegation made against the defendant is that firstly, he used and employed “undue influence, improper incentives and coercion” to induce the late Mr. Clancy to collaborate and undertake to give false evidence, and secondly, that he “arranged” a conspiracy which was successful in defeating the plaintiff’s claim and which led to the procurement of a judgment by those unlawful means, namely the judgment of Carroll, J. The defendant in his defence, denies that he improperly or otherwise secured the collaboration of the late Mr. Clancy, or entered into any arrangement or understanding of any nature with him. The defendant admits that on the 17th May 1989, he wrote the letter to his principals Admiral Underwriting Agency (Ireland), but does not admit its contents. He alleges that the plaintiff, without authority took possession from the court registrar of a confidential file belonging to the defendant (the estate of the late Mr. Clancy) which included the letter numbered 174 above, but does not plead what legal consequences flow from that allegation. For the purposes of deciding this application, I do not consider it relevant. The defendant does not plead any form of estoppel in his defence.
Essentially, apart from “arranging a conspiracy”, the appellant in these proceedings seeks a declaration that the defendant acted improperly in putting to his counsel “incentives” to ensure by underhand, deceitful and coercive means that the late Mr. Clancy would comply in giving evidence against the appellant in the Kent Carty & Co proceedings. This could be classified as seeking to suborn the witness, Mr. Clancy, for the purposes of ensuring that he gave particular evidence, which was false, and highly disadvantageous to the appellant.
In such circumstances it seems to me that, all other things being equal, some of the documents listed in the second part of the schedule, as well as 174 which has now been conceded by the defendant to be available for inspection by the plaintiff, may be relevant to the issues arising in the proceedings. As was stated by the learned High Court judge in the course of his judgment, the documents are, prima facie, relevant to the proceedings. That finding was not challenged by the defendant in the appeal. I am satisfied however that in relation to the vast number of documents listed, only some might or could be relevant to this particular issue.
The appellant alleges that on the face of document number 174, it constitutes evidence of an approach by the defendant to persuade the appellant’s late counsel to adopt a particular approach in relation to the appellant’s claim against Kent Carty & Co. It is of course essential to say that no comment of any kind can or should be made on the merits of such a contention. The approach made, the appellant suggests, appears to be one under which the defendant, was to, in effect, persuade the appellant to “back off”, but is couched in terms of a type of threat to the late Mr. Clancy that if that came about, that is to say, if Mr. Clancy was able to persuade the appellant to do so, he, Mr. Clancy would not be pursued by the underwriters of the solicitors for his own apparent negligence. Quite clearly, in the events which occurred, Mr. Clancy did not broach the matter with the appellant at all. However, in my view that does not really conclude matters. The possibility remains that in light of the letter and the appellant’s interpretation of it, Mr. Clancy himself decided, properly or otherwise, to accept exclusive or sole responsibility for what had occurred. That may have been because Mr. Clancy took the view, as any upstanding counsel ought, that he should, if the fault was clearly his, accept the entire blame for what had occurred. Certainly on the evidence to date of what had occurred, it seems likely the fault lay with Mr. Clancy. An alternative reason may be that, having been, in effect, threatened with being sued, that threat persuaded him to act improperly and accept sole responsibility for what occurred, rather than face the spectre of being joined as a party to the Kent Carty & Co., proceedings. Again, without coming to any view on the actual merits of the appellant’s contention as to the its meaning, it should be recalled that, according to the “Kennedy letter” it quoted Mr. Clancy as stating “Mr. Clancy advised that as far as he was concerned the claimant did quite well and he would be in a position to give evidence that the claimant was advised of the situation, …” from which it might be inferred that Mr. Clancy did not consider, at least at that time, that there was any fault ascribable to him, and that all had been fully explained to the appellant. He did, however, it has been claimed, later give evidence which could reasonably be considered to be in conflict with that statement. The gravamen of the appellant’s complaint is, that, because of the content of the report to the insurers there are good grounds for believing that Mr. Clancy gave false evidence, in light of the threat made to him of otherwise being sued.
In the present case the appellant wishes to discover whether or not there are other documents in the list in respect of which privilege is claimed, which would support his contention that the latter position is the more likely true position, and given the existence of the letter which has now been disclosed, he wishes to have sight of documents which he believes, on the basis of the report which came to light, may forward his case or give him a “litigious advantage” as is sometimes stated in the case law, against the defendant. The hurdle which interferes with that ability is the principle of legal professional privilege.
It is in relation to this second claim in the statement of claim that I think the appellant may be entitled to appropriate relief. I do not consider that it is a claim identical to the conspiracy claim which was considered in the proceedings against the estate of the late Mr. Clancy. Apart from anything else, of course, the present defendant was not a party to those proceedings, although in an appropriate case that would not be determinative of whether an issue had been decided and was res judicata, so that issue estoppel might arise. I am also influenced by the fact that, if there were a question of estoppel arising, the defence of the defendant in this case would have included this plea, estoppel being primarily a matter of defence. The defendant has been intimately involved in some of the proceedings, and I am satisfied would have maintained a close eye on all the proceedings commenced by the appellant, their eventual outcome and the judgments delivered. Being well represented by counsel, but not pleading any form of estoppel in his defence, it seems to me that the defendant did not himself intend at any time to raise such a defence. Having regard to these matters, I conclude that the present application can be distinguished from the finding made in the admissibility of the Kennedy letter in the course of the appeal to this court, in the proceedings against the estate of the late Mr. Clancy, at least at this stage of the proceedings.
It is not necessary to rehearse again the several cases concerning the entitlement to disclosure of documents where legal professional privilege has been claimed, as these been referred to fully in the High Court judgment. One case however in my view is of assistance, and concerns the final ground for the exception against legal professional privilege mentioned in the High Court judgment where the communication is “injurious to the interests of justice where the balance of public interest and disclosure clearly outweighs that of the maintenance of privilege”. This was considered by Finlay, C.J. in Murphy v Kirwan [1993] 3 IR 501 where he stated:
        “The essence of the matter is that professional privilege cannot and must not be applied so as to be injurious to the interests of justice and to those in the administration of justice where persons have been guilty of conduct or moral turpitude or of dishonest conduct even though it may not be fraud.”
Finlay, C.J. held in a subsequent case, Bula Ltd v Crowley (NO.2) [1994] 2 IR 54 that the exemption in Murphy v Kirwan did not extend to allegations of simple tortious conduct, not the situation here. The exemption was restricted to conduct which contained an element of fraud, dishonesty or moral turpitude. Here the allegation on its face is clearly a very serious one indeed, made against an officer of the court and allegedly constituting an attempt to persuade a counsel to give evidence, in order to “buy off” a possible or likely claim against that very counsel, falling into the category of moral turpitude, if it were true. It would in my view be injurious to the interest of justice to permit legal professional privilege to be applied in such circumstances, so as to prevent proper disclosure. That said, however, it is only in such unusual circumstances that I am prepared to make an exceptional order, which in ordinary course could not be made, having regard to the importance attaching to the principle of legal professional privilege.
Further, I do not consider it appropriate in this case that the entire of the schedule, or even those main documents of which the appellant seeks disclosure, should be disclosed to him at this time. Having regard to the case law on the matter, including Murphy v Corporation of Dublin [1972] IR 215, Logue v Redmond [1999] 2 ILRM 498, and McDonald v R.T.E. [2001] IR 355, and to several decisions in the course of the lengthy proceedings between Bula Limited v Tara Mines Limited and another, I am of the view that the correct approach is for the court, having inspected the documents in question, to review their contents and to come to a decision as to whether or not they include any relevant material which should be disclosed. If any of them fall into that category, of course, it will be necessary then to consider the appropriate steps to be taken at that stage so as to permit Kent Carty & Co., in whom the privilege may vest, to be heard. Having regard to the approach I adopt, it is in my view premature to consider that firm’s position until the court has reviewed the documents in question.
I am influenced in adopting the above approach by reason also of the pressing requirement that the final disposal of the application be thereby facilitated, because, as a matter of public policy, a series of events which had their commencement over 20 years ago, resulting in proceedings and an unsuitable settlement, and which have led to two further sets of proceedings in respect of both of which the appellant has been unsuccessful, should not be permitted to be continued into yet another set of proceedings against yet another defendant, without very strong support in the form of documents which truly assist in advancing the appellant’s case. This is particularly so, having regard to the fact that the appellant insisted on having document 174 admitted in the last set of proceedings. That insistence came, understandably, at the appeal stage before the Supreme Court and in the form of an application to admit fresh evidence. That fresh evidence was being sought to be admitted however – unsuccessfully as it happened – in circumstances where the defendant in these proceedings was not a party to the earlier proceedings, but was nevertheless alleged to have been involved in a dishonest arrangement leading to a conspiracy. I have, with some reluctance, found that the appellant is not estopped in these proceedings, at least in relation to one of his claims, having regard to the factors which I have mentioned above.
Bearing in mind the foregoing, I propose that this court should be furnished by the defendant with the documents which I mention below, for the purposes of reviewing the same, in order to decide whether any of those documents are ones which ought to be disclosed to the appellant. The documents are confined strictly to these apparently relevant ones, which fall into the categories set out below. No other documents from the lengthy list in question appear to me to be capable of being relevant at this stage.
(a) documents generated at a date approximating the making of document 174 and/or the date of the creation of the related memorandum of attendance on the late Mr. Clancy (175, 176, 323, 324, 325, 327, 330, 331, 334, 335, 336);
(b) documents generated immediately before or during the hearing in the High Court before Carroll, J on the 5th, 6th and 7th May 1992 (197, 198, 397, 398, 399, 402, 404, 414, 415, 416);
(c) documents reviewed by the learned High Court judge (171, 172, 173)










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