Extent and Duration of Litigation Privilege
07 May 2014
In the recent decision in University College Cork - National University of Ireland v Electricity Supply Board, the Irish Commercial Court had occasion to consider the extent and duration of litigation privilege. The proceedings related to a claim for damages for negligence, breach of duty and nuisance brought by the plaintiff university against the defendant electricity supply company, arising from flooding on the River Lee in Cork in November 2009. The defendant electricity company operated hydro-electric power stations on the river in question, and it was alleged that there was a connection between the manner in which barrages had been opened and flooding which occurred downstream.
The claim of litigation privilege related to two categories of documents. The first related to documents created in the aftermath of and directly in response to the November 2009 floods - "statements of flood events"compiled by employees of the defendant, as well as witness statements from other employees. To complicate matters still further, the "statement of flood events" documents had been disclosed by the defendant to the plaintiff inadvertently, and the defendant was seeking to re-assert the alleged privilege. The second category of documents were historic reports (dating from 1990, 1997 and 2000) relating to other unrelated floods on the River Lee.
Finlay Geoghegan J. began by summarising the applicable principles for litigation privilege in this jurisdiction. These are:
(a) Litigation privilege constitutes a potential restriction and diminution of a full disclosure, both prior to and during the course of legal proceedings which is desirable for the purpose of ascertaining the truth and rendering justice. As such, it must be constrained. Smurfit Paribas v. AAB Export Finance  1 I.R. 469 per Finlay C.J. at p. 477.
(b) The purpose of litigation privilege is to aid the administration of justice, not to impede it. In general, justice will be best served where there is candour and where all relevant documentary evidence is available. Gallagher v. Stanley  2 I.R. 267 per O'Flaherty J. at p. 271.
(c) The document must have been created when litigation is apprehended or threatened.
(d) The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation. Gallagher v. Stanley  2 I.R. 267 at p. 274 approving the test propounded by the House of Lords in Waugh v. British Railways Board  A.C. 521.
(e) The dominant purpose of the document is a matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created. Gallagher v. Stanley and Woori Bank & Hanvit LSP Finance Ltd. v. KDB Bank Ireland Ltd.  IEHC 451.
(f) The onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or enable his solicitor to prosecute or defend an action. Woori Bank and Downey v. Murray  N.I. 600.
2009 "Statement of Flood Events" Documents and Witness Statements
Applying the principles to the 2009 Documents, and having regard to the Defendants evidence on affidavit, the Court was satisfied that litigation was apprehended at the time of creation of the documents.
However, based on the submissions of the plaintiff, the Court was also satisfied that there were at least two other potential purposes, independent of any apprehended litigation, for the creation of the documents over which litigation privilege was claimed. The first of these was the fact that the defendant was to make a presentation to a Joint Parliamentary Committee into the flooding events of November 2009. The second was the fact that the defendant had stated it was standard practice for it to prepare a Flood Report after such floods. The Court felt that on the facts before it, at a minimum, an equal purpose for the creation of the reports and witness statements was preparation for the Parliamentary presentation and Flood Report. The Court noted that no such Report could be prepared without such detailed witness statements and that Defendant had failed to discharge the onus on it to establish on the balance of probabilities that the dominant purpose was litigation.
Of particular interest is that that the witness statements in question were headed "Privileged and Confidential - this statement is prepared for the purpose of consideration by ESBs legal advisors in contemplation of proceedings against ESB". As the test of what the dominant purpose is objective, it was accepted by the defendant that these statements could not be determinative of privilege, and indeed the Court proceeded to disregard them.
Also of interest was the fact that the Court read all of the documents over which privilege was claimed, including those which had never been disclosed, on the basis that the nature of the documents must form part of the Court's objective determination. This approach is at odds with that of English courts, where the court will only view the disputed documents as an option of last resort.
In light of the Court's conclusion that no privilege had been established, the question of whether or not the documents had been mistakenly disclosed did not arise.
Pre 2009 Documents
The three reports in this category were reports prepared by or at the behest of the defendant in relation to previous floods on the River Lee. In the first instance, the plaintiff disputed whether, on the facts, the dominant purpose behind the creation of the reports was apprehended litigation, and claimed that the defendant had failed to discharge the onus in this regard.
Having read the reports and the surrounding documentation, the Court was satisfied that the onus had been discharged in respect of the 1990 report which was expressly stated to facilitate the preparation of a defence in an Irish Circuit Court case, and appeared to be in response to a request from the defendant's legal division. In respect of the two reports, the Court was not satisfied that the dominant purpose behind their creation was apprehended litigation, as neither were addressed to legal advisors and/or solicitors in respect of any specific litigation, and although there was evidence on affidavit of possible related litigation at the respective times, the Court was not satisfied that the onus was discharged.
Duration of Litigation Privilege
This left only one document to which the Court felt litigation privilege ever applied. The defendant urged the Court to uphold the maxim of "once privileged, always privileged" by reference to Irish authorities, which in turn applied the rule set down by the Court of Appeal in The Aegis Blaze in 1986. The plaintiff argued for a more nuanced approach and sought to argue that the scope of the maxim was limited to legal advice privilege, by reference to Smurfit Paribas, the seminal case on legal advice privilege in Ireland, as well as a Canadian Supreme Court decision, Blank v Canada, 2006 S.C.C. 39.
The Court found that it was entitled to depart from the High Court decisions relied upon by the defendant, by reference to their antiquity (both cases dated from the mid-1990s), and the fact that neither distinguished between legal advice privilege and litigation privilege.
The Court favoured the analysis of Fish J in the Canadian decision where it was found that there were different policy reasons for legal advice privilege and litigation privilege. The former, it was noted, had been entrenched for centuries, and was a cornerstone of the justice system, which was a necessary and essential condition of the effective administration of justice. The latter, on the other hand, was to ensure the efficacy of the adversarial process and not to promote the solicitor client relationship. The purpose of the latter is to create a zone of privacy in relation to the impending litigation, the need for which lapsed when the proceedings (or related proceedings) had concluded.
The Court also noted that the reasoning of the Court of Appeal in Aegis Blaze  1 Lloyds Rep. 203 (followed by the Irish High Court in Bord na Mona v Sisk  1 I.R. 85 and in Quinlivan v Tuohy (Unrep. High Court, Barron J., 29 July 1992) failed to distinguish between the different policy considerations behind legal advice privilege and litigation privilege. It was noted however, that in England, the position appears to remain as decided in Aegis Blaze and that the maxim of "once privileged always privileged" applied equally to litigation privilege there.
The Court concluded that as the purpose of litigation privilege was to create what was referred to as a "zone of privacy" to allow a party to prepare for litigation without fear of adversarial interference or premature disclosure. That being so, the Court could see no objective reason for the privilege to survive the termination of the proceedings in question, or of related proceedings. The Court was swift, however, to note that its decision in no way impacted on the scope or ambit of legal advice privilege.
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