Discovery Obligations and Privileged Material
You act for the plaintiff in a Supreme Court claim arising from a fall in a shopping centre. The defendant has delivered a list of documents. Item 14 is described as 'internal incident report, dated 3 June, created by centre management'. The defendant claims legal professional privilege over it. You have received an anonymous tip that the report was prepared by the centre manager the day after the fall, before any lawyer was involved, and that it was later sent to the defendant's insurer and to solicitors. The defendant's list also omits any documents relating to a 2019 complaint about the same wet-floor area, which you know exists because a former employee told you. The trial is listed in eight weeks. The defendant has not filed any affidavit explaining the privilege claim. You must decide what applications to bring and on what evidence.
1. Assess whether the claim of legal professional privilege over item 14 is likely to succeed and what you should do about it.
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The claim is unlikely to succeed on the facts as described. Legal professional privilege attaches to confidential communications made for the dominant purpose of obtaining or giving legal advice, or for use in existing or anticipated litigation. A report created by the centre manager the day after the fall, before any lawyer is involved, is a routine incident report. Its dominant purpose at creation was operational, not legal. The later sending of the report to the insurer and to solicitors does not retrospectively attract privilege; privilege depends on the purpose at the time of creation, and waiver issues aside, later dissemination does not convert an unprivileged document into a privileged one. You should challenge the claim. The proper course is to request a further and better list and, if the claim is maintained, to apply to the court for an order that the document be produced or for inspection. Because the defendant has filed no affidavit, it has not discharged the onus of establishing the claim. Press for an affidavit or evidence supporting the privilege assertion, and be prepared to have the court inspect the document.
2. Explain the consequences of the omission of the 2019 complaint documents and the steps you should take.
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A party has a continuing obligation to discover all documents in its possession, custody or power that are directly relevant to a matter in issue. Documents about a prior complaint concerning the same wet-floor area are directly relevant to notice, foreseeability and whether the defendant had a system for addressing the hazard. Their omission is a breach of the discovery obligation. You should first write to the defendant's solicitors identifying the documents and requiring a supplementary list. If they do not comply promptly, apply for an order for discovery and, if appropriate, for inspection. Given the trial is in eight weeks, you should also consider whether the omission is significant enough to justify an adjournment or costs consequences. Keep the tone professional: the aim is to obtain the documents, not to ambush. If the defendant maintains the documents do not exist, seek an affidavit from the appropriate officer. Document the former employee's information carefully, as you may need to rely on it in an affidavit, and consider whether the employee will provide a statement.
3. Consider whether the timing of the trial affects your strategy and what interlocutory relief you should seek.
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The eight-week listing is tight but workable if you move immediately. The risk is that the applications are heard close to trial and prejudice your preparation. You should file any application promptly and seek a return date well before trial. If the documents are produced late, you may need to seek an adjournment or an order permitting late evidence, and you should flag this risk to the court. You should also consider whether to seek an order for costs of the application, particularly if the defendant's conduct has been unreasonable. The court will be concerned about trial efficiency, so frame the application as necessary to ensure a fair trial rather than as a tactical manoeuvre. If the privilege claim is resolved in your favour, the incident report may contain admissions or descriptions of the hazard that strengthen your case. Prioritise the discovery application first, because the 2019 documents go to liability and notice, then pursue the privilege challenge.