Written by: Clíona Kimber SC and Blánaid Ní Bhraonán (LL.B, BCL(Oxon))
Success in legal proceedings for your clients starts a long time before the day of hearing. There are many different roadways to trial and very many opportunities for your client to receive a successful outcome in a cost efficient manner and with the least amount of difficulties. It is important, therefore, to invest in litigation strategy from the outset.
Discovery is a part of litigation strategy. It is often dealt with in routine manner but bears a little more analysis. Your client may instruct you as to particular documentation held by their opponent which they believe can prove or disprove a case. The opponent will, however, be anxious to avoid scrutiny of documents, particularly those which might expose a smoking gun or show that they have prejudged an issue or made a decision in relation to your client’s interests which they subsequently deny. These sorts of documents are more likely to come into being when parties are squaring up their dispute. As a result, you may be met by claims from your opponent that the documents were prepared in contemplation of litigation and are therefore covered by litigation privilege.
However, litigation privilege is a lot narrower and more focused than parties might think and therefore it is well worth investing in your understanding of exactly what documents are covered and exactly what documents really should be provided to you.
This article will cover the most recent decisions on this topic and address the key questions judges ask when one side claims litigation privilege over certain documents.
Litigation privilege is one form of legal professional privilege. It’s important to remember that this is an exception to the general rule that all information relevant to the proceedings is subject to disclosure. Therefore, it only applies where it can be justified by the need to facilitate full and frank communication between a party and his or her advisors when preparing for trial. Litigation privilege should thus be applied carefully and balanced against the ordinary presumption in favour of disclosure.
The Four Key Questions
In Artisan Glass Studio Limited v The Liffey Trust Limited ( IEHC 278) McDonald J identified the four main questions the court should consider in determining whether litigation privilege applies to a given document.
The first question is: Was litigation reasonably apprehended at the time the documents in question were brought into being?
This is a trickier hurdle to overcome than it might first appear. In Colston v Dunnes Stores ( IECA 59) Irvine J stated that the court will not be satisfied with a “bald assertion” that the document was in fact prepared with future litigation in mind.
The second is: Were the documents in question were brought into being for the purpose of the litigation?
In Ladislav Kunzo v Kepak Longford Unlimited Company ( IEHC 180) Barr J considered whether a workplace accident report created a month after the incident occurred, but before the plaintiff’s letter of claim was sent to the defendant, was covered by litigation privilege. He held that there was no requirement that proceedings had actually been threatened or instituted at the time the document was created, as long as the court was satisfied that the dominant purpose in creating it was the desire to obtain legal advice regarding potential future proceedings that could be reasonably anticipated.
In this case, the head of the Health and Safety department in the defendant group of companies stated on affidavit that the company investigated all workplace accidents in light of the fact that it would probably give rise to a legal claim by the injured worker. Moreover, the investigation report was considerably more thorough than what was required of the defendant under health and safety legislation (it included witness statements, photographs, etc.) and Barr J was satisfied that it was indeed assembled in anticipation of litigation.
The third key question is: If the documents were created for more than one purpose, was the litigation the dominant purpose?
In Artisan Glass at  McDonald J noted that the court must be provided with sufficient material to enable it to assess whether the dominant purpose of the document is the apprehended litigation. Where a party claiming privilege fails to provide the necessary material to the court, the court may conclude that they have failed to establish the dominant purpose of the creation of the document.
In Kellard Homes Ltd v Ballytherm Ltd  IEHC 305 Quinn J found that the party claiming litigation privilege failed to discharge the onus of proof as to the dominant intention of the emails in question. He also stated that the proximity in time of the emails threatening litigation and the emails over which privilege was claimed was not enough to satisfy either the “reasonably apprehended” or “dominant purpose” requirements.
These decisions demonstrate that if you are claiming litigation privilege over documents, it’s not enough to argue that the documents were created in a vague anticipation of a variety of possible legal issues – the dominant purpose has to be specifically in anticipation of the relevant proceedings.
The fourth and final question is: Has the party claiming privilege discharged the burden of proving that the documents are protected by privilege?
In Colston Irvine J upheld the High Court’s finding that the store manager’s statement on affidavit that the accident report was created “in the course of, and for the purpose of” defending the proceedings was not enough to demonstrate that the apprehended litigation was the dominant purpose of creating the documents.
The court was unimpressed with this assertion, even though the statements taken from witnesses were headed “privileged and private for the use of Dunnes Stores and/or their legal advisors” and the investigation form was headed “Internal Investigation in respect of incident which it is contemplated may become the subject of legal proceedings/privileged and private for the use of the Company and their advisors and underwriters”. Irvine J noted that these documents were created on the day of the accident and there was no replying affidavit or sworn testimony from anyone in the defendant company elaborating upon whether there was a policy or approach of creating such documents specifically in apprehension of future claims.
These recent decisions show that to succeed in a claim of litigation privilege, a party needs to get specific, detailed evidence – on affidavit or, even better, on oath – before the court about why and how the documents were drawn up. Conversely, when countering a claim of privilege, the best approach is to highlight any vagueness or suggestion of multiple or competing purposes for the documents and emphasise the privilege’s status as an exception to general rule which must be adequately justified by the one claiming it.
Armed with the knowledge in this blog – you can hope your investment in litigation strategy pays off.