Ireland: Legal Privilege Update: Part 1 Of 3

The High Court has recently handed down a number of key decisions on legal privilege. These decisions, which are discussed in our three part update series (see Parts 2 and Part 3), confirm the criteria for sustaining a claim of litigation privilege, together with addressing the maintenance and loss of a claim of litigation privilege in subsequent proceedings. The High Court decision in Quinn & ors v. Irish Bank Resolution Corporation & ors [2018] IEHC 481 also deals with issues of privilege and waiver in the context of disclosure of privileged documents.

Criteria for sustaining a claim of litigation privilege

In Artisan Glass Studio Limited v. The Liffey Trust Limited and others [2018] IEHC 278, the plaintiff challenged the claim of privilege asserted by the second defendant in respect of a record of inspection and a report from its appointed engineers, Burgoynes, Consulting Scientists and Engineers ("Burgoynes").

This case concerned a fire at a premises owned by the first defendant. The plaintiff and second defendant were unit holders in the premises. The plaintiff alleged that the fire started in the second defendant's premises and escaped to the plaintiff's premises causing substantial damage to it. The second defendant was insured with Hibernian Insurance, now Aviva ("Aviva"). Aviva claimed privilege over the documents prepared by Burgoynes.

In deciding whether the documents prepared by Burgoynes were protected by litigation privilege, the court examined the following questions and considerations: i) whether litigation was reasonably apprehended as at that date of creation of the documents; ii) whether the documents in question were brought into being for the purpose of that litigation; iii) whether litigation was the dominant purpose of the documents (where there was more than one purpose); and iv) the party claiming privilege is required to prove that assertion.

Was litigation reasonably apprehended as at that date of creation of the documents?

In assessing whether litigation was reasonably apprehended as at that date of creation of the documents, the timing of the creation of the documents was closely considered in light of the background facts. The fire had broken out on the premises on 2 November 2002. The insurers for the second named defendant had appointed loss adjusters on 4 November 2002, who appointed Burgoynes on the same day. Solicitors were appointed on 16 November 2002. The record of inspection was created by Burgoynes on 15 November 2002 and their report was created on 20 March 2003.

As there had been communication between the solicitors, the loss adjusters and the insurers, on the issue of the potential for third party claims to be brought, it was held that litigation was reasonably apprehended by the time Burgoynes created their record of inspection. Further, there was no doubt that by the time the engineering report was created on 20 March 2003, litigation was contemplated. However, the fact that litigation was apprehended at the time of the creation of these documents did not mean that they were protected by litigation privilege.

Was litigation the dominant purpose?

The next question to be considered by the court was, on the basis of the materials before the court, whether the defendant had shown that the dominant purpose of the documents was apprehended litigation by third party claimants against the defendant in respect of the fire. In determining this, the court was not bound by a bald assertion on affidavit that the document's dominant purpose was for litigation. The question of dominant purpose is a matter for objective determination by the court.

The court commented that one of the difficulties facing it in dealing with the application arises from the approach adopted in the affidavits filed by Aviva in that while both affidavits asserted that the dominant purpose of the documents was the apprehended litigation, no attempt was made to explain what was (or were) the other purpose (or purposes). The court explained that it is essential that sufficient explanations or materials are placed before the court by a party claiming privilege to identify all of the purposes of the document (if the documents are created for more than one purpose), with a view to assisting the court in assessing whether or not it can properly be said that apprehended litigation was the dominant purpose of the creation of the document. Otherwise, the court will not be in a position to carry out an objective determination, and may, in those circumstances, be left with no alternative but to conclude that the party has failed to establish the dominant purpose of the creation of the document.

The court considered the materials placed before the court in determining the application before it and concluded that Burgoynes' record of inspection considered the insurer's own exposure to its insured, and so it could not be held to have been created for the dominant purpose of the litigation. The engineering report, however, examined the cause of the fire and this would have given the insurer defences to any third party claim made against the second defendant. This document was, therefore, protected by litigation privilege.

Extracts from Privileged Documents and Attachments

The court, in addressing the plaintiff's submission that extracts of the Burgoynes report that contained a factual description of what was found by Burgoynes on site could be made available, held that it would be clearly inappropriate for it to direct that any part of the text of the report (which was found to be subject to litigation privilege) should be released to the plaintiff. However, the same issue did not arise in relation to the photographs appended to the report, if they pre-dated the time when apprehended litigation became the dominant purpose. The court held that if the photographs pre-dated the report and had an independent existence they should not be regarded as part of the report itself.

A similar issue arose in relation to the fire brigade report which was attached to the Burgoynes report. The court found that the fire brigade report had a separate and independent existence from the engineer's report.

Comment

This judgment is of interest as it confirms the criteria for sustaining a claim of privilege. It also highlights that a bald assertion on affidavit that the document's dominant purpose was for litigation will not be sufficient to ensure a claim of litigation privilege can be sustained. It is essential if a claim of litigation privilege is being made over a discoverable document that a court is provided with sufficient explanations or materials to identify all of the purposes of the document (if the documents are created for more than one purpose).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions