Check your Privilege: Meaningful Narrative and an Irish Solicitor's Confirmatory Affidavit
13 Mar 2018
In a significant judgment 1, the Irish High Court has confirmed that, when listing on affidavit the documents over which a party maintains a privilege, the party is required to provide a meaningful description of the documents.
Further, the High Court required the solicitor overseeing the discovery process to swear an affidavit confirming that he had reviewed the documents and that, in his opinion, the legal advice and litigation privilege claims were well-founded.
The judgment will be of interest to practitioners and in-house counsel with experience of large-scale discovery projects. Though the decision essentially confirms existing principles, those principles have not always been observed in practice. As a result, the judgment will likely result in an increase in the time and cost of making discovery, particularly where a privilege (or a number of privileges) is asserted over a large number of documents. Equally, however, in light of the descriptions to be provided, the judgment should also result in a reduction in the number and duration (and, so, the cost) of Court applications challenging such privilege claims.
In August 2013, the UK television station Channel 4 broadcast, as part of its Dispatches series, a programme entitled "Secrets from the Cockpit". The programme asserted a number of safety concerns regarding the operations of the airline Ryanair, based on, amongst other things, anonymised interviews with Ryanair pilots. Ryanair initiated proceedings against Channel 4 and the producer of the programme claiming that the programme contained false and malicious statements, and sought damages for defamation. Channel 4 denied Ryanair's claim and relied on the defences of truth, honest opinion, and fair and reasonable publication.
As part of the pre-trial process, Channel 4 was required to swear a discovery affidavit listing documents that it held relating to the pre-broadcast research, investigations and inquiries for the programme, as well as documents recording the editorial decisions taken. Channel 4 (in a joint discovery affidavit with the producer) listed 2,400 documents but claimed particular legal exemptions from inspection – legal advice privilege, litigation privilege and journalistic privilege – over some of these documents. Ryanair sought to inspect these allegedly privileged documents and, when Channel 4 refused to permit such an inspection, Ryanair sought an order from the Court.
Ryanair argued that Channel 4 had not adequately described the documents listed in the affidavit: in some instances, the bare subject line of the email had been provided as a description. Channel 4 submitted that in describing the documents, it had to be careful not to disclose the content of the document and so lose the benefit of the privilege claimed.
The Court expressed its sympathy for Channel 4's predicament in that there was a fine line to be drawn between giving a detailed description of the document and undermining the privilege that one is seeking to assert. However, it applied Supreme Court and Court of Appeal case law to the effect that a "meaningful narrative" must be provided in the discovery affidavit so as to permit the reader to make an informed decision as to whether the privilege claim was justified.
The Court found this tightrope was even more difficult to walk when journalistic privilege was claimed (and so the protection of the identity of sources was engaged).
On the facts, the Court was satisfied with the description provided of the documents over which journalistic privilege had been claimed, but it required Channel 4 to provide a fuller description of the documents over which legal advice or litigation privilege had been asserted.
Solicitor's Confirmatory Affidavit
As a further protection to the integrity of the claim to privilege, and following a Court of Appeal decision, the Court ordered that, where legal advice or litigation privilege had been claimed by Channel 4, the solicitor responsible for advising on the discovery process would swear an affidavit stating that:
(i) he or she had inspected each of the documents over which the privilege was being claimed; and
(ii) in his or her professional opinion, each such document had been properly categorised.
The confirmation that parties to a discovery process are required to provide a meaningful narrative describing a document over which privilege is asserted is welcome. Depending on the number of documents asserted to be privileged, this principle may lead to greater costs and make discovery more time-consuming: for each document over which privilege is claimed, a solicitor will have to consider how to provide a sufficient description that does not, at the same time, denude the privilege. However, the principle ought to result in fewer and shorter court applications challenging privilege claims as parties, armed with the descriptions, should be in a position to make an informed decision as to whether the claim is justified or not.
In practice, parties should agree in advance to limited (if any) narratives for documents that are clearly covered by privilege: for example, communications between counsel and instructing solicitor. It is not uncommon to see solicitors agree in advance, that they will not list the contents of their respective client correspondence files in the privilege schedule, as those files are obviously subject to legal professional privilege.
While the clarification that greater latitude is provided to claims of journalistic privilege is a pragmatic response in the circumstances, the lack of detail to be provided will continue the sense of mistrust felt towards such claims by receiving parties, and therefore have no effect on the frequency and duration of court challenges to assertions of that class of privilege.
The requirement that a solicitor swear an affidavit confirming that they have inspected each document over which privilege is maintained, and that in their opinion the claim is properly made, is not stated to be required in every case and instead appears to be required only on foot of a further court order. If sufficient descriptions of the documents are already provided in the discovery affidavit then it ought to follow that a solicitor has reviewed the document and believes the privilege claim is justified.
However it remains possible for an affidavit to be sought after the event and the decision will therefore result in practitioners paying particular time and attention to claims to privilege when preparing a discovery affidavit.
If you require any further advice or assistance, please speak to your usual Maples and Calder contact or those listed above.
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