privilege Flashcards
(14 cards)
1
Q
Legal professional privilege
A
- There are two forms of legal professional privilege:\
1. Legal advice privilege protects confidential communications between a client and their legal adviser for the purpose of seeking or receiving legal advice.
2. Litigation privilege extends to confidential communications with third parties, where the dominant purpose is preparation for pending or contemplated litigation. - Though rooted in common law, this privilege has attained constitutional status in Ireland.
- Miley v Flood – the court affirmed it as “a fundamental condition on which the administration of justice as a whole rests.”
- Its purpose is to promote the giving of accurate legal advice by encouraging full disclosure between clients and lawyers. However, as noted by Finlay CJ in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd, privilege limits disclosure in proceedings and should arise only where it serves a public interest sufficient to justify that restriction.
2
Q
Legal advice privilege
A
- For a communication to attract legal professional privilege, it must satisfy the following elements: 1) It must be a communication; 2) between a client and a legal adviser (solicitor, barrister, or their authorised agents); 3) made in confidence; 4) for the purpose of seeking or giving legal advice (not merely legal assistance).
- “Communication” includes oral exchanges, written documents, notes, and memos.
- R v Central Criminal Court, ex p. Francis – the term was interpreted broadly to include physical evidence such as a blood sample.
- Wheeler v le Marchant – the court held privilege may extend to communications made to a solicitor’s agent (e.g., secretary or trainee), provided they act under the solicitor’s direction.
- Bord na gCon v Murphy – the defendant’s solicitor, on the client’s instructions, sent a letter to the plaintiff outlining the defendant’s version of events before litigation. The defendant later claimed privilege over the letter, but the court held it was not confidential and thus not protected by legal advice privilege. It was nonetheless inadmissible as hearsay.
- Smurfit Paribas Bank Ltd. V AAB Export Finance Ltd – the SC Finlay CJ – affirmed that legal advice privilege protects communications between a client and their lawyer, made in the course of seeking or providing legal advice, and such communications are generally exempt from disclosure without the client’s consent.
o However, it drew a clear distinction between legal advice and broader legal assistance, holding that tasks carried out by a lawyer that do not involve advice or bear no connection to potential litigation, though within the legal sphere, do not attract privilege, as there is no overriding public interest justifying their protection.
3
Q
Litigation privilege
A
- Litigation privilege attaches to confidential information compiled for the dominant purpose of preparing for litigation. It applies to communications between a client and lawyer (or through an agent), or between a client or lawyer and a third party (e.g., expert), made for litigation purposes.
- Silver Hill Duckling Ltd. v Minister for Agriculture – O’Hanlon J. established the criteria for determining whether a document is covered by litigation privilege. The case involved the plaintiffs seeking compensation for the slaughter of their duck flock, and the defendants claiming privilege over documents they had prepared in anticipation of the plaintiffs’ claim.
o O’Hanlon J. ruled that litigation privilege applies when litigation is reasonably anticipated or threatened.
o He affirmed that privilege extends not only to communications between the client and their lawyer but also to documents prepared with the dominant purpose of preparing for litigation, including those involving third parties, such as experts.
o The court emphasized that a broader range of documents could be protected by privilege as long as they are made with the purpose of preparing for litigation.
4
Q
Dominant purpose
A
- Davis v St. Michael’s House – the court applied the test established in Silver Hill Duckling. The plaintiff, who was mentally handicapped, sued after an accident at the defendant’s school. The defendant claimed privilege over an accident report form and witness statements, arguing they were created in contemplation of possible litigation.
o Lynch J. found that the documents were prepared to ensure accurate records of the incident, to inform insurers, and to preserve witness testimony for future use, potentially years later, in case a claim arose. He ruled that the dominant purpose of the documents was preparing for litigation and upheld the claim for litigation privilege. - Waugh v British Railway Board – the plaintiff sought discovery of internal reports following her husband’s fatal railway accident. The defendant claimed privilege over these reports, which included a joint inquiry report sent to the board’s solicitor to enable legal advice.
o The court rejected the claim of litigation privilege, ruling that the dominant purpose of the reports was not to prepare for litigation but to improve employee safety and prevent future accidents.
o Lord Wilberforce emphasized that litigation privilege only applies when the dominant purpose of the document is to prepare for litigation, stating: “unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose to which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply.” - Mark v Flexibox Ltd. – an employee sought discovery of a medical report following a consultation arranged by his employer. The defendant claimed litigation privilege, citing a heading on the report that stated it was for use by legal advisers in anticipation of litigation.
- MacDermott L.J. held that such labels are not determinative of privilege, emphasizing that the dominant purpose of a document is a question of fact.
- He noted that routine employer vigilance against potential claims does not meet the dominance threshold. In cases involving employee health, the judge found that the primary purpose is typically medical, to diagnose, treat, and prevent recurrence, not litigation, making it difficult for defendants to satisfy the dominant purpose test in such contexts.
5
Q
Without prejudice privilege
A
- Communications made bona fide in furtherance of settling a legal dispute, and intended to be inadmissible if negotiations fail, attract without prejudice privilege. This doctrine, distinct from legal professional privilege, is rooted in public policy favouring dispute resolution. To invoke such protection, it must be demonstrated that the communication was genuinely directed toward compromise.
- Ryan v Connolly – documents marked “without prejudice” were held not to be privileged as they did not evidence an intent to settle. The court affirmed that the privilege may be displaced where justice so demands, and should not be applied with inflexible rigidity.
6
Q
Duration and extent of legal privilege
A
- University College Cork v ESB 2014 – the Court held that legal advice privilege is permanent and endures indefinitely unless waived.
o Litigation privilege, by contrast, is limited in both scope and duration, expiring when the litigation concludes, unless further proceedings are a continuation of the original dispute. Its purpose is to protect a ‘zone of privacy’ around active or anticipated litigation, which ceases once the dispute is meaningfully resolved. - Privilege is a right that vests in the client, not the lawyer, and only the client may assert or waive it, either expressly or by implication.
- For instance, public disclosure of a privileged document typically constitutes waiver. However, where privilege is waived inadvertently, such as accidental disclosure, courts may permit the mistake to be rectified if satisfied that the waiver was unintentional and that the opposing party recognised the error but failed to act.
- Byrne v Shannon Foynes Port Company – Clarke J set out a two-step test: (1) whether the solicitor realised the disclosure was mistaken, and (2) whether a reasonable solicitor, on the balance of probabilities, would have recognised it as such.
7
Q
Public interest privilege
A
- Public interest privilege, formerly known as Crown or executive privilege, is a state-held privilege invoked where disclosure of certain documents would harm the public interest or state affairs. Historically, this was considered absolute, courts would accept a ministerial affidavit asserting privilege without further inquiry. However, the modern position is that it falls to the courts to balance competing interests and determine whether the public interest justifies non-disclosure.
- Rogers v Secretary of State for the Home – Lord Salmon acknowledged that certain categories of documents, such as Cabinet minutes, have long been recognised as inherently immune from disclosure, sometimes rendering ministerial affidavits unnecessary.
- Conway v Rimmer 1968 – the HoL considered whether confidential police reports were immune from disclosure in an action for malicious prosecution. The Home Secretary claimed public interest privilege, asserting disclosure would be injurious.
o Lord Reid recognised that while some classes of documents, such as Cabinet minutes or internal policy deliberations, are inherently sensitive, routine reports require judicial scrutiny. He held that courts must assess whether withholding a document is genuinely necessary for the proper functioning of public service.
o If the judge finds the Minister’s reasons insufficiently clear or the documents’ relevance outweighs the risk of harm, the court may inspect the documents and order disclosure where no substantial prejudice arises.
8
Q
privilege over classes of documents
A
- Murphy v. Dublin Corporation – the SC addressed the issue of privilege over classes of documents. The plaintiff sought discovery of an inspector’s report related to a compulsory purchase order.
o HC – Kenny J, applying the principles from Conway v. Rimmer, held that a government minister does not have an absolute right to withhold documents. The court has discretion to decide whether documents should be disclosed, guided by two rules:
1) Certain documents, such as Cabinet minutes, should never be disclosed, and
2) A minister’s decision to withhold a document must be based on public interest. The court will respect the minister’s view unless shown to lack good faith, be unreasonable, or based on misunderstanding of the issues of the case.
o In this case, the minister’s claim that disclosure would harm public policy was accepted, and the court refused to order production of the report.
o SC Walsh J – took a different stance. It held that the Minister’s certification that the production of the report would harm public policy and the public interest should not be accepted without judicial examination.
o The Court emphasized that documents arising from the executive powers of the State may either harm the public interest by being disclosed or by being withheld. Therefore, the court must assess which course is least injurious to the public interest, balancing the need for justice against potential harm. The court may sometimes resolve this issue without inspecting the document, but in other cases, it may need to review the document to make an informed decision.
o Walsh J. disagreed with the notion that there are certain classes of documents that should never be inspected – each document must be evaluated individually, based on its relevance and content. The burden of proving that a document should not be disclosed lies with the party making the claim. Moreover, the court may require the document to be produced for inspection to resolve any conflicting claims.
9
Q
seminal case - test
A
document to be produced for inspection to resolve any conflicting claims.
- Ambiorix v. Minister for the Environment (No.1) 1992 – the SC reaffirmed the constitutional principles from Murphy v. Dublin Corporation.
o Finlay CJ emphasised that such claims must be assessed through the lens of Ireland’s constitutional structure, not foreign precedent. He summarised five core principles:
1) The administration of justice belongs solely to the judiciary;
2) Compelling evidence is inherent part of the judicial power;
3) In conflicts between executive confidentiality and justice, the courts decide which public interest prevails;
4) Judicial review does not inherently favour disclosure; and
5) The courts determine the evidentiary basis for such decisions. Practically, this means (a) the executive cannot prevent the court from reviewing relevant documents; (b) the court need not always inspect a document to uphold privilege; and (c) no class of documents is inherently exempt due to the status of its author or recipient.
10
Q
case that applied the test
A
- Breathnach v Ireland (No.3) – the plaintiff, claiming malicious prosecution, sought discovery of documents held by the DPP relating to his arrest and prosecution. The DPP resisted disclosure on the grounds of both legal professional privilege and public interest privilege.
o Applying the balancing test from Murphy, Keane J held that the court must weigh the public interest in the administration of justice against the interest in confidentiality – in this case, the prevention and prosecution of crime.
o Given that the documents could potentially support the plaintiff’s claim by evidencing a lack of reasonable cause, Keane J found that the interest in justice prevailed, and disclosure was warranted.
11
Q
Informer privilege
A
- Attorney General v. Briant – established that privilege may be claimed over the identity of informers and documents revealing such identity – affirmed in Ireland in Director of Consumer Affairs v. Sugar Distributors Ltd.
- People (DPP) v Fitzpatrick – O’Donnell J underscored that while the identity or methods of informants may seem irrelevant where such evidence is not adduced, even trivial disclosures can severely undermine intelligence-gathering, particularly against paramilitary activity. Thus, courts globally treat informer privilege with heightened sensitivity.
- DPP v Special Criminal Court – the Supreme Court confirmed that informer privilege, while vital to law enforcement, is not absolute and may yield where the accused’s innocence is at stake. The case arose from the Special Criminal Court’s conditional disclosure of statements relating to the Veronica Guerin murder trial. The DPP objected, citing serious risks to informants’ lives and the broader impact on Garda intelligence-gathering.
o Carney J in the High Court found the Court had improperly delegated its judicial function by not inspecting the documents itself.
o The Supreme Court upheld this, with O’Flaherty J affirming that although informer privilege is well established, the judiciary must retain discretion to override it if disclosure could establish innocence.
12
Q
Journalistic privilege
A
- Journalistic privilege, while recognised, is not absolute. Courts will only compel a journalist to disclose their sources where the necessity for such disclosure is “convincingly established.” In doing so, the court must balance the public interest in press freedom against competing interests justifying disclosure, such as the interests of justice or national security, with the weight of each interest depending on the specific context of the case.
- Goodwin v United Kingdom – ECTHR – established the principle that protection of journalistic sources is a core component of press freedom under Article 10 of the European Convention on Human Rights.
o ECtHR held that compelling disclosure of a source must be justified by an overriding requirement in the public interest. The Court emphasised the potentially chilling effect such orders may have on newsgathering and public-interest journalism, recognising that without source protection, whistleblowers and informants might be discouraged from coming forward, thereby undermining the press’s “public watchdog” role. - Mahon v Keena 2009 – the Supreme Court reversed a High Court order compelling two journalists to disclose their source for a leaked confidential letter from the Mahon Tribunal, which alleged payments to the then Taoiseach. The journalists refused to identify the source and had destroyed related documents.
o The High Court’s decision was influenced by this conduct, but the Supreme Court held that it had failed to properly apply the balancing test required by Goodwin v UK.
o Fennelly J emphasised that any restriction on journalistic source protection must be “convincingly established” and subject to “the most careful scrutiny,” reaffirming the central role of press freedom in a democratic society.
13
Q
Sacerdotal/counseling privilege
A
- Cook v Carroll – the court recognised a form of religious communications privilege, holding that a parish priest could refuse to give evidence about a confidential conversation with a parishioner regarding an allegation of seduction. Gavan Duffy J laid down four criteria for such privilege to arise:
1. The communication must be made in confidence;
2. Confidentiality must be essential to the relationship;
3. The relationship must be one that society seeks to protect;
4. The harm from disclosure must outweigh the benefit to the litigation.
o The court concluded that the priest was justified in refusing to testify, and that privilege covered both confessional and non-confessional communications with parishioners. - Johnston v Church of Scientology 1999 – the plaintiff alleged she had been “brainwashed” by the defendants and sought disclosure of certain “counselling notes” from the Church of Scientology, which were generated during “auditing” and “training”. The defendants claimed sacerdotal privilege, arguing that disclosure would violate the tenets of their religion.
o However, the court ruled that since the plaintiff had waived any privilege, the claim of sacerdotal privilege was not upheld.
o Geoghegan J distinguished Cook v Carroll, emphasizing that any privilege related to counselling, whether by a priest or secular counsellor, could always be waived by the person being counselled. He also questioned the distinction between religious and secular counselling, suggesting that secular counselling might also be subject to privilege, but always subject to waiver by the person being counselled.
14
Q
Marital privilege
A
- Article 41.3.1 of the Constitution protects the institution of marriage and seeks to guard it against attack, which could justify recognizing a privilege to protect marital communications. Previously, spouses had a statutory privilege preventing the disclosure of communications made by one spouse to the other during marriage in both civil and criminal cases.
- This privilege was abolished by Section 3 of the Criminal Evidence Act 1992, but Section 26 of the Act preserves marital privacy, stating that it does not affect a spouse’s right regarding marital privacy. Thus, a privilege may still be claimed when necessary to protect marital privacy.
