The Gazette 1978

GAZETTE •

- APRIL 1978

made for the purpose of pending or contemplated litigation but this is, of course, one important kind of c ommu n i c a t i on which is p r i v i l eged. Such communications include notes, rccords and information made or obtained with a view to litigation, whether commenced or only contemplated, including therefore instructions to counsel or solicitor, cases to advise, reports, briefs etc. prepared on the client's behalf. As there are not clear rules for establishing when litigation is actually "contemplated" it is for the Court to decide on this in each case when the matter is put in issue. The other kind of communications which are protected are confidential communications which have passed at any time between a client and his legal adviser in his professional capacity as such for the purpose of the former obtaining legal advice for the protection of his interests. These communications include notes and other records of such communications made for the same object. It is important that the communications are made to enable the client to obtain, or the legal adviser to give, advice on a professional matter. It will be appreciated, therefore, that where, for example, a woman with marriage problems consults her solicitor for the purpose merely of discussing her problems vithin a confidential relationship, as may happen in this country where legal action is ruled out for one reason or another, and not for the purpose of obtaining legal advice on the matter, such communications, though certainly confidential, may not be protected from disclosure in any subsequent proceedings, as the communications were not made to the solicitor in his capacity as such, but as, perhaps, marriage counsellor; and in these c i r cums t ance s, the communications would not have been made for the purpose of obtaining legal advice on a professional matter. This proposition may be supported by the decision in the case of Thomas v. Eawlings (1859) 27 Bea. 140 where it was held that the communication must have been made not merely during the relationship but also on a professional matter. It may be, however, that in most situations, the solicitor would also be called upon to advise on legal matters and, of course, in these circumstances the communications would be protected by the privilege. On the same principle, when a plaintiffs solicitor also acted as his patent agent, he was ordered to answer interrogatories with reference to documents which passed between them at the time when a specification was prepared, such communications not having taken place in the relationship of legal adviser and client or on a professional matter: Mosely v. Victoria Rubber Company 3 R.P.C. 351. Patent agents in Ireland are not considered as professional advisers when performing their ordinary work such as preparing specifications, and communications with them are not privileged. In the United Kingdom, however, communications with patent agents are now protected by Section 15 of the Civil Evidence Act, 1968, but no such statutory measures have been introduced here. There is a further situation in which the legal adviser will not be protected by the privilege despite the fact that he is acting on instructions in a professional capacity. In McKeogh v. O'Brien [19271 I,R, 348 a question arose as to the privilege to be extended to a letter written by a solicitor on behalf of a client. It was laid down in that case that a solicitor, in correspondence with third parties, is in no better position than his client. He is not free to write anything his client may suggest or state in relation to third parties. He is bound to exclude from his letter anything 62

defamatory that is not relevant to. the occasion. The letter in question, which was written by a solicitor on behalf of his client, contained a statement which was an independent and extraneous matter, unconnected with, and not reasonably relevant to, the purpose of the letter; and it was held that the statement was not privileged, and as it was a very damaging statement to make, and was . untrue in fact, the solicitor was liable in damages. It will be appreciated therefore that the legal adviser should carefully consider what he is being asked to state or write on behalf of his client. Another matter that remains to be considered is the question of the scope of the term "client" in relation to enterprises and Corporations. The Irish Courts do not appear to have been called upon to decide whether the privilege is confined to communications between the legal adviser and special officers of such corporations and enterprises. The writer's personal view is that only communications between the corporation's legal adviser and such of its officers as are authorised to obtain advice on its behalf are protected from disclosure, but it is possible that our Courts would hold that communications with any corporate employee are privileged provided the other requirements of the rule are fulfilled. There are only two exceptions to the rule. The first relates to communications made in order to facilitate the perpetration of a fraud or a crime. In the leading English case on the subject, R. v. Cox and Railton (1884) 14 Q.B.D. 153, the Court for Crown Cases Reserved decided that if a client applies to a lawyer for advice intended to guide him in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice has been sought, the communication between them is not privileged. If, of course, the legal adviser participates in the criminal purpose he ceases to act as a lawyer, and no protection whatever is afforded to communications in these circumstances. The principle has been extended to civil cases in which fraud is alleged: Williams r. Quebrada Railway, Land and Copper Company (1895) 2 Ch. 751. Since that case, it has been stressed that there should be prima facie evidence that it • was the client's intention, in taking the advice, to perpetrate a criminal or fraudulent scheme before the Court will consider whether the situation comes within the exception to the rule: O'Rourke v. Darbyshire (1920) A.C. 581. The other exception relates to facts discovered in the course of the relationship of legal adviser and client. This simply means that the privilege applies only to communications. Hence, a legal adviser can be obliged to disclose the identity of his client: Bursill v. Farmer (1885) 16 Q.B.D. 1. Furthermore, the privilege does not prevent the disclosure of facts observed by either party in the course of their relationship as client and legal-adviser. In Brown r. Foster (1857) 1 HON 736. for example, it was held that a barrister who saw a book produced at the trial of his client could testify, without the client's consent, in subsequent proceedings on the question whether it contained a particular entry when he previously saw it at the preliminary hearing. It is important to emphasise that the privilege is that of the client and furthermore it enures for the benefit of his successors in title with regard, for example, to documents handed over by him: Minet v. Morgan (1873) 8 Ch. Aff. 361. In another English decision. Calcraft v. Guest (1898) 1 Q.B. 759. it was held that the original of the proofs and notes on evidence with which the case was concerned were protected from production and (Continued on page 68)