The High Court will rule tomorrow on the Irish Haemophilia Society's application for leave to challenge the Lindsay tribunal's refusal to order the Blood Transfusion Service Board (BTSB) to describe information contained in 611 documents over which the board claims privilege.
Mr Martin Giblin SC, for the society, said it was important to know what was in these documents, because the tribunal was beginning another phase today, on the Department of Health's response to the "difficult crisis in relation to blood supply leading to the infection of persons who are haemophiliacs". He stressed he was not applying for a stay on these hearings.
He said the BTSB had given a generic listing of documents but did not list individual documents, and had claimed "legal professional privilege".
As a result the IHS was unable to get any indication of what was in these documents and had asked the tribunal chairwoman to order the BSTB to make "further and better discovery", Mr Giblin said.
However, Judge Alison Lindsay had refused, stating the onus was on the society to prove the BSTB had no right to claim privilege over these documents.
Mr Giblin said the society was entitled to information, short of compromising the BSTB's right to claim legal professional privilege. The integrity of the discovery process was not maintained if a court accepted a simple assertion that documents were privileged, thus depriving the other party of a chance to challenge such an assertion.
Mr John Finlay SC, for the tribunal, described as "startling" Mr Giblin's claim that the BSTB's affidavit of discovery must outline the nature of the legal advice given to the BSTB. The documents in question related to communications between client and lawyers, and lawyers and experts.