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1. I deliver this judgment on the authority of Mr. Justice Kinlen and of the President of the High Court.

2. By motion paper dated the 4th October, 1995 the Solicitor for the Plaintiff applied to the Court on the 6th November, 1995 for an Order challenging the second and third-named Defendants' privilege in relation to numbers 5(6), 59, 65, 81, 87, 88, 95 and 100. This application was based on a grounding affidavit of Dermot McKenna sworn the

3. CLASS A Communications of a confidential nature arising between the second and third-named Defendants, their insurers and their legal advisers for the purpose of obtaining and/or giving legal advice.

4. CLASS B Communications between the second and third-named Defendants, their insurers and their legal advisers for the purpose or primary purpose of preparing the second and third-named Defendants' case in these proceedings.

5. CLASS C Communications by the second and third-named Defendants and/or its insurers and/or its legal advisers with third parties for the purpose or primary purpose of preparing the second and third-named Defendants' case in these proceedings.

6. CLASS D Internal communications, memoranda, letters, papers, writings, documents, accounts, working papers or drafts of the same of the second and third-named Defendants or of their insurers or their legal advisers which came into existence for the purpose or primary purpose of preparing the second and third-named Defendants' case in these proceedings.

7. CLASS E Without prejudice communications in these proceedings.

8. From the pleadings it is clear that the Plaintiff's claim arises out of the alleged theft of a consignment of Hi-Fi equipment while in the course of transport and delivery from the United Kingdom to the Plaintiff in Ireland. It is alleged that the theft occurred whilst the consignment was in the custody of the second or third-named Defendants. Mr. Talbot avers that the second and third-named Defendants were notified on the 6th October, 1992 by Techno Marine Limited, acting on behalf of the Plaintiff, that the Plaintiff was holding the second and third-named Defendants fully liable for all losses in connection with the theft. Thereafter, the second and third-named Defendants were, he avers, of the firm belief that litigation would be instituted against them arising out of the theft. He says that all the documents for which privilege is claimed came into existence after the 6th October, 1992. The documents are listed in the affidavit as follows:-

9. The motion paper is mistaken in talking about document number 6. It is clearly privileged. It should read document no. 56 which is described as "manuscript note headed 'goods recovered' dated and unsigned". The error in the motion paper was noted at an early stage and John K. Lynch, Solicitor in the firm of Whitney, Moore and Keller has sworn an affidavit dated the 1st July, 1996 in which he avers that Document No. 56 was prepared by him in about February, 1994 in his capacity as Solicitor acting for the second and third-named Defendants in the defence of the proceedings. It was an internal memo prepared by him for the primary purpose of preparing a defence on behalf of his firm's clients. The matter came before this Court on the 3rd July, 1996.

10. It was very fully and ably argued by Counsel on both sides. The Court was referred firstly to a note in the Irish Law Times and Solicitors Journal, Volume 83 (1949) at p.103. This is not a law report. It is not regarded as having been cited, merely as being adopted as part of the arguments. On that basis it is received de bene esse. The relevant portion of the note reads as follows:-

11. The Court also considered Silver Hill Duckling Limited, Roland Stuart Steele and Elizabeth Patricia Steele, Plaintiffs -v- The Minister for Agriculture, Ireland and the Attorney General (1987) IR p.289 and Tromso Sparebank -v- James Francis Beirne, Thomas A. Forde, Joseph Grimson, Northern Bank Limited, Northern Bank (Ireland) Limited and (by Order of the Court) Midland Bank PLC (No. 2) 1989 IRLM p.257. The Court also had regard to Buttes Gas and Oil Company -v- Hammer (No.3) 1981 QB 223. The views of Master of the Rolls, Lord Denning were adopted by Costello J. (as he then was) [despite the decision of the R. - v - The Board of Inland Revenue Sp Goldberg 1988 3WLR 522 which expressly disapproved of the comments of the Master of the Rolls].

12. In the Tromso Sparebank case Costello J. says at the bottom of page 261:-

13. In this case the Court is only concerned with the first of the two grounds mentioned by O'Hanlon J. This Court respectfully agrees that "legal professional privilege may be claimed in respect of a wider category of documents and the conventional communications passing between a client and his legal adviser in contemplation of litigation". The learned Judge adopts (with slight modifications) the passage from the Judgment of Lord Denning MR in the Court of Appeals decision in Alfred Crompton Amusement Machines Limited -v- Customs and Excise Commissioners (No.2) 1972 2QB 102 at p.131:-

14. The foregoing seem to lay out the relevant law. The Court will now apply these principles to the various documents contained in the Notice of Motion as amended. It is already clear that the motion paper mentions Item No. 6 which is clearly privileged and they are now seeking Item No. 56. The relevant date is the 6th October, 1992. The letter was written on behalf of the Plaintiff stating that the Plaintiff was holding the second and third named Defendants fully liable for all losses in connection with the theft. The Court has already recited a description of each of the other documents sought to be discovered. No. 56 is an internal memo which was clearly prepared by a Solicitor. Undoubtedly the dominant reason for the document coming into existence in the first place would have been for the purpose of preparing for litigation then apprehended or threatened.

15. Document No. 59 is a letter written by the Solicitors to the Superintendent of Store Street Garda Station and Document No. 65 is his reply. They undoubtedly came into existence after the contemplation of litigation. However, that in itself is not the only deciding factor. As Costello J. (as he then was) says in the passage earlier cited "the Rules of Court are destined to further the rules of justice and they should be construed by the Court so that they assist in the achievement of this end". They could possibly be discovered by a third party Discovery Order against the Superintendent or produced at the trial by subpoena duces tecum. The matter is very finely balanced. With some hesitation the Court will hold them privileged on the grounds not merely that the correspondence was subsequent to the threat of proceedings but on the basis that they would have had no reason for their existence save for the purpose of preparing a defence.

16. Document No. 81 is an undated manuscript note of a telephone conversation at Store Street Garda Station. Document No. 87 are notes prepared by the Solicitor for the Defendants from a conversation which he had with a third party. These are both notes prepared after the relevant date in pursuance of preparing a defence and are privileged. Document No. 88 is a facsimile message from the Solicitor, Mr. Robert Talbot, on behalf of the second and third-named Defendants to the insurers' representatives. This message is dated the 19th of October, 1992. This would seem to be covered by the note of the judgment of the late Mr. Justice Dixon. However, as I have already indicated, that is not a law report binding on this Court and can only be admissible as part of the argument if the Barrister urges it. Mr. Justice Dixon was undoubtedly one of the finest Judges this country has produced. I feel that the present document differs to the one mentioned in the note as it was directly involved with the question as to what response should be made to letters from the claimants. It is not binding on this Court because I do not have an admissible report. Maybe there would be other grounds distinguishing it. Anyway this Court is satisfied that No. 88 was clearly made for the purposes of and in contemplation of ascertaining the type of reply which should be sent to the letters emanating from the Plaintiff. Document No. 95 is a bundle of undated manuscript notes, memoranda and attendances, taken on behalf of the second and third-named Defendants. Many of them are indecipherable or incomprehensible or both. It is alleged that they were taken on behalf of the second and third-named Defendants following the alleged theft for the purpose of gathering information to be used to assist in the defence of the claim. The Court is not satisfied that these came into existence after the threat. The Defendants should look at them again and index them and the matter can, if necessary, be relisted. However, it may be that the parties can adjust the matter between themselves applying the principles laid down in this judgment. If this matter has to agitate the Court, it need not come before me but can be argued before Budd J. who is reading this judgment due to my incapacity to attend Court at this time.

17. Document No. 100 is a report prepared by International Investigations Ireland in contemplation of a claim providing information used in the defence of the said claim. It is clearly a confidential report prepared to deal with these proceedings and is clearly privileged. The Court doth reserve the question of costs to the trial Judge.