Assertion of legal privilege over discovered documents upheld in action concerning sale of commercial property

Challenge to an assertion of legal professional privilege over certain documents discovered in the course of the action - plaintiff, as vendor, seeks specific performance of an agreement for the sale of certain commercial or industrial premises in Glanmire, County Cork to the defendants, as purchasers, which agreement was made on or about the 4th November 2011 - defendants admit the agreement for sale and it is common case that a completion notice issued dated the 23rd November 2012, which was originally due to expire on the 2nd January 2013 but which was extended by agreement between the parties to the 4th January 2013 - defendants contend that the plaintiff failed to complete the sale within the period covered by the said completion notice, as extended, such that the defendants were entitled to elect to rescind the sale, which election was communicated to the plaintiff’s solicitors by letter dated the 9th January 2013 - defendants counterclaim for the return of their deposit - Gilligan J. made an Order for discovery on the 17th July 2014, in response to which Mr Gerard Gleeson swore an affidavit of discovery on behalf of the defendants on the 27th August 2014 - defendants claim privilege over a number of documents set forth in the Second Part of the First Schedule to that affidavit - plaintiff contends that it is not clear whether litigation privilege is being claimed, in addition to legal advice privilege - argues that the documents in the schedule can be divided into two categories, namely, those comprising requests for, or the provision of, legal advice, on the one hand, and those comprising requests for, or the provision of, instructions, on the other - plaintiff submits that only the former category attracts privilege - plaintiff contends that, in identifying the instructions actually given (“to proceed with the purchase”) as part of the description of certain of the communications over which privilege is asserted, the defendants have, effectively, waived that privilege by purporting to disclose the contents, rather than the nature, of those communications - Order 31, r. 20(2) of the Rules of the Superior Courts - court satisfied that documents in issue are capable of attracting both litigation privilege and legal advice privilege and that, accordingly, the defendants’ claim of legal professional privilege has been made out - that the conceptual distinction that the plaintiff seeks to draw, between legal advice, on the one hand, and a client’s instructions, on the other, is not a helpful one – limited disclosures did not amount to a waiver of privilege.