Smurfit Paribas Bank Ltd v. AAB Export Finance Ltd [1990]

• The court emphasized that privilege should be granted only if it serves a public interest objective that outweighs the disadvantage caused from restricting disclosure.

1. Types of Privilege

A- Legal Professional Privilege

=> Legal Advice Privilege: Protects confidential communications between a lawyer and client, intended for the purpose of obtaining legal advice to ensure open and honest communication between clients and their legal advisors (! communications predating the legal advice, are not privileged simply by being shared with a lawyer).

+ Michaud v. France: Under the ECHR, lawyer-client privilege is strongly protected as it is crucial for a fair trial (Article 6) and privacy (Article 8).

=> Litigation Privilege: Covers communications made in preparation for an actual or a "reasonably apprehended" litigation which includes interactions between clients, lawyers, and sometimes third parties like experts or consultants involved in litigation preparation

B- Other Types of Privilege

• Without Prejudice Privilege: Protects communications made in genuine settlement efforts to encourage dispute resolution.

• Public Interest Privilege: Protects information deemed sensitive to public interests (e.g., state security).

+ Smurfit Paribas Bank Ltd v. AAB Export Finance Ltd [1990]

+ Murphy v Dublin Corporation [1972]: Courts must balance competing interests by carefully assessing whether the public interest in keeping the information confidential outweighs the importance of disclosure to ensure a fair trial.

=> Public interest privilege is not absolute and doesn't automatically apply simply because a governmental entity claims it, which is why the court has the discretion to determine whether the privilege is being claimed genuinely in the public interest and not merely to prevent disclosure of potentially embarrassing or incriminating information.

• Parliamentary Privilege: Provides members of the Oireachtas (Irish Parliament) immunity regarding legal proceeding concerning statements made, actions taken or votes cast within the scope of their parliamentary duties in order to support the democratic process by allowing members of the parliament to speak freely without fear of defamation or other legal claims (Art. 15.13 of the Irish Constitution).

+ Attorney General v. Hamilton (No. 2) [1993]: Parliamentary privilege doesn't cover activities beyond official parliamentary work to ensure it's strictly applied to actions that are essential to the good functioning of the democracy (speech within parliamentary debates, committees and votes).

+ Attorney General v. Hamilton (No. 1) [1993]: Prohibition on judicial interference with parliamentary proceedings to ensure the independence of legislative functions and prevent the judiciary to interfere in parliamentary debates or decisions.

• Informer Privilege: Protects the identity of individuals who provide information to law enforcement confidentially in order to encourage individuals to come forward with info on criminal activities for instance (this privilege can only be lifted exceptionally when justice requires it, particularly if an accused's right to a fair trial is in question).

• Journalistic Privileges: Protects journalists (broadly media informants) from being compelled to reveal confidential sources in order to ensure press freedom and ensure that a sources can provide info without fearing exposure.

+ Burke v. Central Independent Television Plc.[1994]: Journalistic privilege is not absolute and can be overridden by public interest and fair trial considerations, especially in cases where the info is central to resolving serious claims such as defamation.

• Sacerdotal Privilege: Protects confidential spiritual counsel, especially between an individual and a member of the clergy in the context of religious confession or spiritual guidance.

+ Cook v Carrol [1945]: Recognition of sacerdotal privilege in Irish Law - A Roman-Catholic priest couldn't be compelled to disclose info obtained in a confession to ensure religious freedom and not undermine the essential trust in the sacrament of a confession.

2. Confidentiality vs. Privilege

Confidentiality is broader and can be overridden by public interest, whereas privilege is an absolute right intended specifically to protect the client-lawyer relationship.

O'Callaghan v. Mahon [2005]  

• Confidentiality might be outweighed by public interest, particularly when constitutional concerns for fair procedure to the applicant arise.

Traynor v. Her Honour Judge Katherine Delahunt and Others, [2009]

• The case regarded an alleged assault by a member of the Garda on the applicant - the Garda Siochana Complaints Board investigated the complaint and sent a report to the Director of Public Prosecutions (DPP) who decided to not prosecute the Gardai.
• The same Garda then requested that the applicant be summoned and charged with violent disorder and assault, therefore, the applicant requested disclose of documents, a request to which the board argued was impossible due to the fact that statements gathered during the course of an investigation must remain confidential.
• Order to disclose was made by the court because while confidentiality is protected, it may be overridden if withholding information risks an unfair trial or injustice based on the "interests of justice".

Independent Newspapers v. Murphy [2006]

• In 1998, Independent Newspapers published an article implying that the defendant, Murphy, had been involved in questionable financial activities, therefore, Murphy sued the newspaper for defamation, and the case settled with the newspaper publishing an apology and paying compensation.
• However, in the current case, Independent Newspapers alleged that Murphy had made false declarations during the defamation proceedings aiming to mislead the tribunal about his involvement in the payment and, by extension, influencing the defamation suit and sought to have the prior settlement nullified by claiming an abuse of process.
• Defendant claimed he gave full discovery to plaintiff

3. Legal Advice Privilege in Practice

A- Communication

• Exclusively between lawyer and client (not 3^rd parties), doesn't need to be direct (can be through intermediaries/agent of client) and doesn’t extend to matters of fact the lawyer knows by other means than by confidential communication with client.

+ Pearse v. Pearse (1846): Importance of complete sincerity/directness in relationship between client/lawyer.

B- Lawyer / Client Relationship

+ Greenough v Gaskell (1833): Communication between L/C made for the purpose of obtaining legal advice whether written or oral are privileged and protected from disclosure in order to promote honest exchanges.

• Legal privilege becomes void when communication was made before the attorney was employed as such, after his employment has ceased or when the thing disclosed had no reference to the professional employment.

C- Imparted in confidence

• Parties must have intended communication to be confidential.

+ Bord na gCon v. Murphy [1970]: If a client has instructed a solicitor to write a particular letter to another party, it is quite clear that the content of that letter or the fact that the writing of it was directed by the client is not, and was not intended to be, a confidential communication.

+ Murphy v. Kirwan [1993]: No privilege for communications for purpose of being repeated to other party.

D- Legal Advice v. Legal Assistance

+ Smurfit Paribas Bank Ltd v. AAB Export Finance Ltd [1990]: Differentiated between “legal advice” (protected) and “legal assistance” (not necessarily protected), illustrating that privilege may not extend to tasks that don't contain any real relationship with the area of potential litigation and don't appear to be any sufficient public interest or feature of the common good to be secured or protected.

+ Healy, Irish Laws of Evidence, Thomson Roundhall (2004): Extending privilege to "legal assistance" might overextend the scope of legal professional privilege therefore inviting more frequent challenge to documentation claimed to be privileged as legal advice.

4. Litigation Privilege in Practice

Silver Hill Duckling Ltd v Minister for Agriculture [1987]

• Once a litigation is apprehended, a party to such litigation have the right to prepare his case by communicating with his legal advisers or with third parties, and to do so under the cloak of privilege.

Waugh v. British Railway Board [1980]

• Public interest in preparation for litigation must be the "sole purpose" or at least the "dominant purpose" of a communication, with the court rejecting privilege if another purpose is equally significant.

Gallagher v. Stanley [1998]

• The Irish Supreme Court endorsed the “dominant purpose” by establishing that for a document to be applied litigation privilege, it must have been created in reasonable anticipation or in imminent response to litigation and, more importantly, its creation must have as its primary purpose that litigation, which eliminates privilege if the document has several equally important objectives, only one of which would be the dispute.

Colton v. Dunnes Stores [2019]

• An employee of D.Stores brought a personal injury claim against the company, therefore, D.S insurance company conducted an investigation preparing reports and documents related to the injury that they argued were prepared for the dominant purpose of a possible litigation and were therefore protected by litigation privilege.
• Dominant purpose test: Document must be created with the "dominant purpose" of preparing for or conducting litigation that must be "reasonably anticipated" at the time of the document creation.
• Court noted that companies or insurers often conduct routine investigations flowing workplace incidents and that in this case, the investigation conducted by the insurer was a standard procedure and not primarily for litigation purposes and that at the time, litigation was not yet sufficiently likely to justify the application of litigation privilege.
• Parties claiming privilege must provide clear evidence of the dominant purpose at the risk of their request failing.

5. Exceptions to Legal Professional Privilege

A- Crime or Fraud Exception

+ Murphy v. Kirwan [1993]: No privilege for communications made for the purpose of committing or furthering criminal or fraudulent conduct as they do not serve the legitimate purpose of obtaining legal advice but rather serve to further unlawful objectives.

=> There must be sufficient evidence to suggest that the communication was made with the intention of committing or furthering a crime or fraud for the crime/fraud exception to apply.

B- Testamentary Dispositions

+ In re Estate of Fuld [1965]: Legal professional privilege does not apply to communications between a testator (the person making the will) and their solicitor if those communications are needed to clarify the testator's intentions regarding the disposition of their estate (! Only the relevant communications).

=> There was a dispute about the validity of the will, so the court had to interpret Mr. Fuld's intentions and to do so, she needed to examine privileged communications between Mr. Fuld and his solicitor that related to the preparation and content of the will.

=> Legal professional privilege typically survives a client’s death but the decision is based on the principle that understanding a deceased person’s intentions in disposing of their property is in the public interest.

C- Welfare of Children

+ L(T) v L(V) [1996]: Privilege can be overridden for the child’s best interest in family court proceedings in accordance with the constitutional duty, governed s.3 Guardianship of Infants Act, 1964, to ensure the welfare of children.

D- Expert Witness Report

• Order 39 Rule 46 RSC governs the disclosure of expert witness reports in civil litigation by allowing parties to know in advance the expert evidence that will be presented, preventing surprises at trial and enabling each party to adequately prepare a response.

=> After each party has provided a list of expert reports, they are required to exchange copies of these reports.

=> The rule specifically requires only reports of expert witnesses who will actually testify in court to be exchanged - if a party initially lists an expert but later decides not to call them, privilege may reattach to that report, as in Kincaid v. Aer Lingus Teoranta [2003].

6. Duration of Privilege

+ Porter v. Scott [1979]: Only applies to legal advice privilege.

+ University College Cork-National University of Ireland v. Electricity Supply Board [2014]: Privilege doesn't automatically continue beyond final determination of the litigation / closely related litigation.

7. Discovery and Privilege

+ O’Brien v. Minister for Defence [1998]: General privilege must be claimed explicitly in affidavits for each document in legal discovery, detailing why each document is must be privileged : general privilege claims over groups of documents are insufficient.