The Guidance and Ethics Committee and the In-House and Public Sector Committee of the Law Society of Ireland are pleased to present the following practice note on legal professional privilege (LPP).
This practice note is the first in a series of two on LPP. This practice note provides an overview on the status of LPP for solicitors. It includes an examination of legal advice privilege and litigation privilege, along with a summary of the principal duties with regard to the law of privilege. It also looks at recent areas of interest relating to LPP. A second, related practice note, focusing on solicitors working in-house in the private and public sectors, is published below this note.
These practice notes represent guidance for best practice for practitioners in the area of legal professional privilege and do not constitute legal advice.
1) Legal professional privilege (LPP) confers on a client a privilege of exemption from disclosure of communications that may otherwise be required to be revealed. The party asserting the existence of LPP bears the onus of justifying the claim. Unlike other forms of privilege, once LPP has been established on the facts of a case, it is inviolate and there is no judicial discretion to displace it. LPP encompasses two distinct forms of privilege: legal advice privilege (LAP) and litigation privilege (LP).
Status of LPP
2) LPP is a common law right, copper-fastened in many instances by statute. Further, LPP has a constitutional foundation that elevates it beyond a mere rule of evidence. LPP enjoys constitutional protection as a dimension of the protection of the administration of justice afforded by article 34 of the Constitution. It is unclear whether LPP is also recognised as an unenumerated constitutional right (see, for example, Miley v Flood  2 IR 50; Martin v Legal Aid Board  2 IR 759; and the comments of McGrath on ‘Evidence’ (2nd ed, 2014) at para 10-248).
3) LPP is recognised as a fundamental right in the jurisprudence of the ECHR, as an aspect of article 6 (the right to a fair trial; Niemietz v Germany (1992) 16 EHRR 97) and Article 8 (the right to privacy; Campbell v UK (1993) 15 EHRR 137). Equally, its existence as a fundamental right has been recognised in the case law of the CJEU (AM&S v Commission  ECR 1575 and Akzo Nobel Chemicals v Commission  5 CMLR 19).
Legal advice privilege
4) Legal advice privilege (LAP) arises in respect of a confidential communication or a continuum of communications, or a reference to such communications, which takes place between a professionally qualified lawyer and a client, in the course of a professional legal relationship, in which legal advice is sought and/ or received.
Communication containing legal advice
5) LAP only extends to protect communications that contain legal advice as to a person’s legal rights and liabilities and does not apply to the provision of legal assistance (Smurfit Paribas Bank Ltd v AAB Export Finance Ltd  1 IR 469). Legal assistance includes, for example, the drafting of contracts or documents in order to give effect to the intention of the client in an enforceable manner.
The corporate client
6) A client may be a natural or a legal person. Where the client is a legal person, such as a large corporation, difficulties have arisen in England and Wales regarding the identification of those employees who are ‘authorised’ to deal with the lawyer on behalf of the corporate client as a result of the decision of the Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No 5)  QB 1556, which has been the subject of criticism, but was most recently reaffirmed in SFO v ENRC  1 ALL ER 1026. In this jurisdiction, the High Court, in Ryanair v Channel 4  1 IR 734, confined Three Rivers to its facts, holding that, where there was no evidence that a special unit had been set up within Channel 4 to deal with the relevant litigation (as had occurred in Three Rivers), then there was no basis to confine the entitlement to claim privilege to a limited group of employees. As a result, the court considered that all staff were deemed to be authorised to communicate with the lawyers for the purpose of attracting LAP.
Professionally qualified lawyer
7) The definition of ‘lawyer’ encompasses a solicitor, a barrister, a salaried in-house legal adviser, a foreign lawyer and the attorney general (McMahon v Irish Aviation Authority  IEHC 221). The UK Supreme Court has held that other professionals who are not lawyers will not attract the protection of LAP, even where those persons are dispensing legal advice to their clients (R (on the application of Prudential Plc) v Special Commissioner of Income Tax  2 AC 185). While LAP will not apply in respect of persons who have ceased to act as lawyers, traditionally it has been thought to apply where the client was unaware of this fact (Calley v Richards (1854) 19 Beav 401).
Lawyer conducting legal business through intermediary:
8) The common law, recognising that lawyers “cannot transact all their business in person”, permits the seal of privilege to apply in circumstances where legal business is conducted through intermediaries or subordinates (Taylor v Forster (1825) 2 C&P 195). It is generally accepted that LAP will not be lost where lawyers communicate with their client through the agency of legal executives, paralegals, apprentice solicitors or pupil barristers.
9) LP arises in respect of confidential communications that take place between a lawyer or a client and a third party for the dominant purpose of preparing for litigation, whether existing or reasonably apprehended (Artisan Glass Studio v Liffey Trust  IEHC 278). Communications may be written or oral and may, for example, include photographs (Hansfield Developments v Irish Asphalt  IEHC 420).
Communication with third parties
10) It is generally accepted that potential witnesses, including experts, qualify as third parties. Hence, draft or rejected witness statements are covered. Final statements may become part of disclosure required under the rules of court. There is also some support for the view that LP covers the ‘work product’ of a lawyer preparing for litigation – including draft pleadings, draft written legal submissions, internal memoranda and notes – notwithstanding the absence of any communication with a third party (McGrath on ‘Evidence’ (2nd ed, 2014), §10.99).
Dominant purpose test
11) In applying the ‘dominant purpose’ test, the court takes an objective approach. In Colston v Dunnes Stores  IECA 59, the Court of Appeal held that the evidence required in order to discharge the evidential burden that rested on a party asserting LP should be of sufficient quality and character to allow the court to make definitive findings about the motivation and/or intention of the creator of the document over which privilege is maintained. A bald assertion as to the dominant purpose of a document or the subjective state of mind of the party asserting privilege was not sufficient without evidence to support them. To discharge the evidential burden, the evidence must be of such quality and character as to enable the court to make definitive findings about the motivation and/ or intention of the creator of any document in respect of which privilege is claimed. What was required was a detailed affidavit explaining “the nature, genesis and purpose of the documents in issue”.
Nature of litigation
12) Litigation need not be adversarial in nature for LP to apply (Ahern v Mahon  4 IR 704).
Regulatory or investigatory privilege
13) A form of LP, described as ‘regulatory’ or ‘investigatory’ privilege, may also be validly asserted in respect of communications that take place in response to a regulatory investigation undertaken by a law enforcement agency (Ciara Quinn v IBRC  IEHC 315, involving investigations by the Financial Regulator and the ODCE).
Avoidance of litigation
14) Communications may attract LP in circumstances where they take place as a means of avoiding contemplated litigation by compromise, in the same way that LP traditionally applies to communications that take place as a means of preparing for litigation (Horgan v Murray  1 ILRM 257). ‘Without prejudice’ privilege may also protect communications being sent in a bona fide attempt to settle with opponents where the intention is that, if negotiations fail, the communication will not be disclosed without the consent of the parties. Communications over which such privilege is claimed should be headed ‘without prejudice’.
Report prepared pursuant to a statutory obligation
15) The High Court recently rejected a claim of LP asserted in respect of reports prepared by the official assignee of a bankrupt, in circumstances where the examination of the witnesses – from which the reports were then formulated – had taken place pursuant to a statutory obligation under section 21 of the Bankruptcy Act 1988 (Lehane v Yeserb Holdings  IEHC 4). However, central to the court’s decision was the statutory requirement that the examinations take place in open court, thereby negating the requisite condition of confidentiality necessary to support any claim to privilege. Confidentiality will be a relevant consideration on the facts of each case.
Termination of litigation privilege
16) LP is temporal in scope and ends upon the termination of the litigation in respect of which it was asserted. It may only subsequently be asserted in respect of ‘the same or closely related proceedings’ (Ryanair v Revenue Commissioners  IECA 222). This may be contrasted with LAP, where a communication that is once privileged is always privileged.
Preservation of privilege where disclosure made to third party
17) Apart from cases in which a party to litigation expressly deploys a privileged document for their own use at trial, in which case the privilege is lost (Hannigan v DPP  1 IR 378), the courts are reluctant to infer any implied waiver of privilege in circumstances where documents are disclosed to third parties. The general rule is that privilege will not be lightly overborne as a result of disclosure, in the absence of an intention to abandon the privilege. While disclosure can defeat privilege, it is not bound to do so. Privilege may be found to be preserved in a number of ways.
Limited disclosure for particular purpose
18) Privilege may be preserved on the basis that there has been limited disclosure for a particular purpose (as in Fyffes v DCC  1 IR 59, where documents were disclosed to a regulator, and Woori Bank v KBD  IEHC 451, where documents were disclosed to the public prosecutor’s office).
Common interest privilege
19) Privilege may be preserved on the basis of common interest privilege, where the party to whom the documents were disclosed was deemed to have a common interest in the advice or progress of the litigation (as in Redfern v O’Mahony  3 IR 583, where the third parties were parties to the same commercial transaction; in Moorview Developments v First Active plc  2 IR 788, where the advice was shared among a group of connected companies; and in Hansfield Developments v Irish Asphalt Ltd  IEHC 420, where the advice was shared with a separate company that, nonetheless, shared an interest in the proceedings).
Stipulations of confidentiality:
20) Practitioners should be aware, however, that in all cases where privilege was upheld, confidentiality agreements were entered into between the parties and the documents were supplied without prejudice to the entitlement to continue to claim privilege. Privileged documents should only be disclosed to third parties on that basis.
Joint interest privilege
21) Joint interest privilege provides a further basis upon which the privilege in documents may be preserved. It has been held to be the basis upon which a shareholder is entitled to see legal advice received by the company of which they are a shareholder (Carlo Tassara Assets Management SA v Eire Composites Teoranta  IEHC 103). The shareholder remains entitled to see that advice, even where they subsequently enter into litigation with the company. However, the shareholder’s entitlement does not extend to seeing advice obtained by the company in relation to the litigation with the shareholder.
Voluntary waiver of privilege
22) Practitioners should be aware that a voluntary waiver of privilege in respect of a selection of documents, whether disclosed pre-trial or during the course of litigation, may result in a waiver being implied in respect of the remaining undisclosed privileged documents, where otherwise an unfairness or litigious disadvantage could accrue to the opposing party (Quinn v IBRC  IEHC 89).
Loss of legal professional privilege
23) LPP may be lost in a number of circumstances:
- Where there is an intention to abandon the privilege in a communication (Hannigan v DPP  1 IR 378),
- Where the privilege is overridden by the express language of statute (see, for example, section 45 of the Courts and Court Officers Act 1995),
- Where the communication is used to further a criminal or fraudulent purpose, even where the lawyer is not party to or even aware of the purpose to which his client intends to put the communication (Hussain v Garda Commissioner  IEHC 612),
- In some proceedings involving the welfare of children (TL v VL  IFLR 126),
- In disputes regarding testamentary dispositions (Russell v Jackson (1851) 9 Hare 387), and
- Though it has not been tested in this jurisdiction, there is authority in the common law world that supports the view that the privilege may be lifted in cases in which the innocence of an accused person is at stake.
Statutory powers of regulators to request legally privileged documents
24) A recent attempt by the Financial Reporting Council (FRC) to carve out a ‘no infringement exception’ or a ‘technical infringement exception’ to LPP, in circumstances where a regulator exercises a statutory power to request documents in the context of an investigation into a regulated body, was rejected by the UK Court of Appeal in Sports Direct International plc v The Financial Reporting Council  EWCA Civ 177.
The FRC had argued that, in spite of the clear language of the statutory scheme pursuant to which it was conducting an investigation into a firm of auditors – which exempted a person to whom a request for documents was made from disclosing those documents to the regulator where they were protected by LPP – an exception should be made where (i) the request for information comes from a regulator, (ii) the regulator is bound by duties of confidentiality in its use of the information, and (iii) the holder of the privilege is other than the person who is at risk of some adverse finding as a result of the use of the information by the regulator.
The Court of Appeal, in rejecting the FRC’s formulation of these exceptions to LPP, reiterated that any incursions into the law of privilege must be principled and clear so as not to undermine the confidence of the client in non-disclosure. In addition, it reaffirmed that there are no exceptions to LPP other than the well-established iniquity exception and the circumstance of the clear abrogation of privilege by statute, either by the use of express language or necessary implication. The court concluded that the language of the statute was clear and entitled the auditor or the auditor’s clients to withhold legally privileged material from the regulator.
25) The Data Protection Act 2018 copper-fastens the right to assert LPP in the face of requests for data made by both the Data Protection Commission (see sections 132, 138 and 151) and data subjects (see section 162). Provided that the data would be exempt from production in court proceedings on the ground of LPP, the exemption will provide a valid basis upon which to refuse to disclose the documents under the act.
Areas of recent interest
Criticism of blanket claims to privilege
26) Recent cases have highlighted the importance of properly articulating claims to LPP in the affidavit of discovery (Gallagher v RTÉ  IEHC 237; Quinn v IBRC  IECA 84 and Ryanair v Channel 4  1 IR 734). Practitioners should individually list and date each item in respect of which the claim is made and provide a meaningful narrative, containing as detailed a description as possible, in respect of the document and the nature of the privilege asserted, consistent with the non-infringement of the privilege. In the absence of same, opposing parties are unable to assess whether privilege has been correctly asserted and whether it may be susceptible to challenge.
Onus on solicitors to swear verifying affidavits
27) In more than one case in which privilege has been asserted in respect of large amounts of documents, the courts have directed the solicitor advising the party making discovery to swear an affidavit verifying that they have reviewed each item over which privilege has been claimed and that, in the solicitor’s professional judgement, the claims are correctly made (Quinn v IBRC  IECA 84 and Ryanair v Channel 4  1 IR 734). Commentators have noted that “this is a novel approach to privilege and appears to place a significant onus on the solicitor advising a party making discovery” (Abrahamson, Dwyer and Fitzpatrick, Disclosure, 3rd edition, 2019).
International aspects of the law of privilege
28) Though the question has not been directly decided in an Irish case, the courts in England and Wales have held that, where proceedings are instituted before the English courts, the status of a privileged communication that contains legal advice in respect of foreign law will be determined by reference to the lex fori (In Re Duncan  P 306) – that is, the law of the country in which the action is taken.
Summary of solicitors’ duties
Solicitors’ principal duties
29) with regard to the law of privilege may be summarised as follows:
- A solicitor is under a duty to advise the client that they have a right to assert a claim to LPP and to make an assessment, based on the current state of the law, as to whether a valid claim to LPP has arisen on the facts before them,
- A solicitor is under a duty to assert a claim to LPP on the client’s behalf,
- Insofar as it is the privilege of the client and not the solicitor, a solicitor is under a duty to maintain the confidentiality of privileged communications that take place between themselves and their client, and must not disclose the communications without the express consent of the client,
- In circumstances where it is evident that privileged documents were disclosed in error, the solicitor should make all reasonable attempts to return the documents and should not make use of them (a court will determine that matter based on what a hypothetical reasonable solicitor would do, even if it were not evident to the individual solicitor),
- A solicitor must ensure that claims to LPP, made in the second part of the first schedule of the affidavit of discovery, are sufficiently articulated, and
- A solicitor should take steps to rectify the affidavit of discovery if it comes to their attention that LPP has been incorrectly claimed in respect of a document or should have been claimed in respect of a document.