The Gazette 1978

GAZETTE •

- APRIL 1978

Legal Professional Privilege in Irish Law

John V. O'Dwyer, B.C.L., Solicitor

In our legal system there is a rule of Evidence which provides that professional communications within the ordinary scope of professional employment, whether such communications are oral or documentary, between a legal adviser and his client are wholly privileged. The client has power to waive the privilege so that the rule is not for the protection of the legal adviser as in some legal systems. The principle is well settled by a number of leading Irish and English cases and is said to have been established for the better administration of justice and for the protection of the confidence which exists between a legal adviser and his client. The rule is justified on the grounds that disclosure of such communications or the production of such documents would be injurious to the general public interest which is considered to be paramount to the individual interest of the litigant. Until recent times it was abundantly clear from the authorities that the principle will not be set aside by the Courts on the grounds that in so doing "a higher public interest" would be served but there is now some doubt and this will be discussed later. It is of course always open to the legislature to cut down the operation of the principle and this has happened in recent fiscal legislation as a result of which a legal adviser may be obliged to disclose information concerning his client's tax liability which he may have obtained in the course of professional communications. The principle is directly applicable in all proceedings regardless of whether they are civil, criminal or administrative in character. The term "legal adviser" refers to solicitors and barristers but the rule also protects communications by the client or his agent to the clerk or other subordinates of the legal adviser and vice versa. Furthermore, in Geraghty v. Minister for Local Government (No. 1) (1973 unreported), Kenny J. held that advice by a qualified legal adviser in a Government department to other members of the Department is in the same category as advice by a barrister or solicitor to his client and is consequently privileged. As regards other "employed lawyers" or, as they are known "in-house lawyers" there appears to be no Irish decision on the matter but it is thought likely that the Courts would follow the English decisions and hold that communications with such legal advisers are privileged especially in view of the High Court decisions in Gcraghty (No. 1) referred to above. In other words, it is submitted that all qualified legal advisers acting in a professional capacity would be protected by the privilege and that the word "qualified" in this context would be construed to mean "professionally qualified" as barrister or solicitor as opposed to "academically qualified" in the Universities. This is of course a personal view on the matter and it will be interesting to see how the law develops if the matter is s ever considered in detail in the Supreme Court. It seems Clear, however, that communications with such legal advisers will not be privileged unless they are made to or by the legal adviser in his professional capacity as such. Where, for example, as well as acting as legal adviser to a

company, a solicitor also acts as a Director, communications made to or received by him in the course of performing his duties as a Director will not be privileged, such communications having been received in an executive capacity. It is also probable that the Irish Courts would follow the English decision in Re Duncan Garfield v. Fry (1968) 2 AU E.R. 395 where it was held (1) that the privilege extends to documents passing between parties and their foreign legal advisers whether or not they relate to proceedings contemplated in England or elsewhere; and (2) that the privilege attaches to documents prepared for the purpose of foreign litigation. The privilege extends to communications, statements, reports etc. made by other persons on behalf of the client to the legal adviser if obtained by the latter for the purpose of litigation or other business, but not otherwise. However, when litigation is not contemplated, communications between the adviser and third parties to enable him to obtain information before giving his opinion are not always privileged. This was decided in the leading English decision of Wheeler v. Le Marchant (1881) 17 Ch.D. 675, where the defendant was obliged to produce reports made to his solicitor by a surveyor with regard to property that came to be the subject of litigation, the litigation not having been comtemplated when the reports were made. The ratio decidendi of this case was followed in the Irish case of The County Council of Kerry v. The Liverpool Salvage Association and Thomas Ensor and Son (1905) 21.R.38. The Court also held in this case that the privilege does not extend to communications, documents or reports, etc., between employer and servant or agents prepared in the ordinary course of business, even though litigation be anticipated. In his judgement Kenny J. said that if there was no reference to a state of circumstance which involved the confidential relationship of client and legal adviser, the claim would be reduccd to the simple one of the defendants having given or procured the information contained in these documents as ordinary agents for a principal who has no present intention of taking legal advise with regard to the matter with which they dealt. "Of this class", he said, "are the documents which railway and tramway companies are obliged to produce in everyday practice, consisting of reports as to the details of accidents forwarded to them by their engineers, traffic managers, and other officials. There is no privilege for such documents when they are ante litem motam, and not covered by the professional privilege arising from the relationship of legal adviser and client". His Lordship referred to Worthington v. Dublin, Wicklow and Wexford Railway Company 22 L.R.Ir. 310. However, reports made at the instance and for the use of a company's solicitor are always protcctcd, so a report would be privileged if there was a standing arrangement ' that certain information should always be obtained for the use of the solicitor on the happening of an accident: Ankin v. London and North Eastern Rail Company (1930) I.K.B. 527. It is not essential, however, that the communication is 61