Litigation Privilege Flashcards
(12 cards)
What is litigation privilege?
It protects confidential communications made for the dominant purpose of preparing for contemplated or pending litigation, including with third parties.
What are the two main types of legal professional privilege?
Legal Advice Privilege and Litigation Privilege.
Does litigation privilege apply to third-party communications?
Yes, if the dominant purpose of the communication is to prepare for litigation.
What case established the dominant purpose test in Ireland?
Silver Hill Duckling Ltd v Minister for Agriculture [1987] IR 289.
What are the two key conditions for litigation privilege (from Silver Hill Duckling)?
Litigation must be reasonably apprehended and the documents must be created for the dominant purpose of litigation.
What was decided in Davis v St. Michael’s House (1993)?
Witness statements and accident reports made to inform insurers and lawyers were privileged as they were created in contemplation of litigation.
What happened in Waugh v British Railway Board [1980]?
Litigation privilege was denied; the internal report’s primary purpose was improving safety, not litigation.
Does simply labeling a document ‘for litigation’ ensure privilege?
No. In Mark v Flexibox Ltd [1988], the court held labels are not determinative; the actual purpose must be proven.
Is litigation privilege permanent?
No. It usually ends when the litigation ends (University College Cork v ESB [2014]), unless further proceedings are part of the same legal conflict.
Can litigation privilege be waived?
Yes, by the client—either expressly or impliedly. Inadvertent waivers may be rectified by the court (Byrne v Shannon Foynes Port Co [2007]).
Why is litigation privilege important?
It creates a ‘zone of privacy’ to allow lawyers and clients to prepare a case without fear of disclosure.
What did Finlay CJ say in Smurfit Paribas v AAB Export Finance about privilege?
Privilege restricts full disclosure and should only be granted when it secures a public interest in the administration of justice.
