The Gazette 1990

GAZETTE

JULY/AUGUST 1990

solicitors then acting for the de- fendant in relation to the defend- ant's floating charge which was in issue in the proceedings. Finlay CJ agreed wi th Costello J's conclusion that the documents in respect of which privilege had been claimed did not request and did not contain any legal advice about the proposed transaction, that they contained references to the instructions which the de- fendant's solicitors received from the de f endant and f u r t her instructions and clarifications of instructions given by the defendant and the solicitors and that these instructions were given to enable the defendant's solicitors to draft the documentation necessary to complete the transaction or later to advise on draft documents which other parties to the transaction might prepare for their consider- ation. In his judgment, Finlay CJ said that in order to determine whether documents were privileged from disclosure it was necessary to as- certain what were the underlying principles of the doctrine of pri- vilege of communications between a client and his lawyers. The question as to whether a party to litigation would be privileged to refuse to p r oduce pa r t i cu l ar evidence was a matter within the sole competence of the Courts. It was for the Courts to decide which was the superior interest in the circumstances of the particular case and to determine the matter of privilege f r om d i sc l osu re accordingly. The existence of a privilege or exemption from dis- closure for communications made between the person and his lawyer clearly constituted a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which, in the interests of the common good, was desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should, therefore, only be granted by the courts in instances wh i ch had been identified as securing an objective which, in the public interest in the proper conduct of the administration of justice, could be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts. The Chief Justice stated that for

. ^ J l • r j j f LAWBR I EF Edited by/Eamonn G . Hall, Sol i c i tor.

Fair Trade Commi ss i on Report The Repo rt of S t u dy i nto Restrictive Practices in the Legal Profession was published by the Fair Trade Commission on July 5, 1990. The report will be studied by the Council of the Law Society and, after canvassing the views of members, a submission will be made in due course to the Minister for Industry and Commerce. In a statement on July 6, 1990, the Law Society stated that it reserved its views on the report but made the following comments: " The Law Society shares with the Commi s s i on and the Minister a concern that the public have access to a modern, efficient and effective legal ser- vice at reasonable cost. This has been reflected in the many changes implemented by the Law Society on behalf of its members in recent years. These changes include free- dom by solicitors to advertise t he ir se r v i ces as we ll as advances in the education and training of solicitors - there are now f our t imes as many solicitors as there were in the 1970s. The Law Society has also called for an increase in the jurisdiction of the District and Circuit Courts, subject to the provision of the required back-up services. The Law Society has, for many years, sought the establishment of a Small Claims Court.

The Law Society is on record as welcoming lay representation on its Disciplinary Committee. In addition to its Compensa- tion Fund to protect the public, the Society has been successful in ensuring that the vast majority of solicitors carry Professional Indemnity Insurance. Solicitors by their actions have shown that the interests of the public are their primary concern and therefore can be counted on to participate wholeheartedly in all positive changes in the law and the practice of the law". Certain communications bet- ween a lawyer and client are not privileged. The case of Smurfit Paribas Bank Limited -v- AAB Export Finance Limited, (The Irish Times Law Report, 11 June, 1990) raised important aspects of the law and practice relating to privilege and discovery. The Supreme Court (Finlay CJ, Walsh and McCarthy JJ) held that communications between a lawyer and his client for the purpose of seeking or obtaining legal assistance - as distinct from legal advice - were not privileged from disclosure. The Supreme Court so held in dismissing an appeal by the defendant against an order made by Costello J in the High Court on March 13, 1989 directing the further discovery of all correspond- ence or other instructions passing between the defendant and the

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