A Privileged Position?

The recent decision of Ms. Justice Reynolds in Director of Corporate Enforcement (Applicant) (ODCE) and Cumann Peile Na H-Eireann "Football Association of Ireland" (Respondent) and John Delaney (Notice Party) [2022] IEHC 593 provides a useful summary as to the current position on legal professional privilege.

Facts
The application arose out of the ODCE seeking a determination as to whether certain documents attracted legal professional privilege.  The documents in question were seized under warrant from the offices of the FAI pursuant to Section 787 of the Companies Act 2014 on 14^th February 2020 and constituted the contents of a digital work email folder of the notice party, Mr. Delaney, being the FAI’s former Corporate Executive Officer.

Mr Delaney sought to claim legal professional privilege over some of the documentation seized.  

Section 795 of the Companies Act 2014 requires the court to come to a determination as to whether a person is entitled to refuse to produce a document on the grounds of legal professional privilege.

The Court in doing so provided a useful synopsis on this current position of this area of law.

Analysis
The Court identified two categories of legal professional privilege:
 

1. Legal Advice Privilege
2. Litigation Privilege

Legal Advice Privilege
Ms. Justice Reynolds identified a number of essential criteria to be met:
 

1. The communication must be between solicitor and client although this can be extended to include an agent of the client where such agent is appointed for the purposes of obtaining legal advice from the lawyer on the client’s behalf.
2. The solicitor must be acting in a professional capacity.
3. The document over which legal advice privilege is claimed must be confidential.
4. The document in question must relate to the provision of legal advice as opposed to legal assistance.

The onus of the relying on such privilege lies with the party claiming it.

Litigation Privilege
Ms. Justice Reynolds identified the following criteria:
 

1. This privilege can only be claimed if the litigation has commenced or is closely anticipated and there is a connection between the communication and the litigation itself. 
2. The “dominant purpose” of the document is that it was prepared for the purpose of assisting the preparation of litigation.

The Judge identified some qualifications around these criteria.  Firstly, she confirmed that the onus rested with the party seeking to assert litigation privilege to demonstrate that "the dominant purpose” of the document was that it was created in contemplation of litigation or apprehended litigation.

Secondly, she confirmed that litigation privilege may be lost once the proceedings have been concluded.

Thirdly, litigation privilege can only be asserted in respect of the same or closely related legal proceedings.

Waiver of Privilege
The protection of privilege is predicated upon confidentiality.  Therefore, privilege may be waived in circumstances where a document or communication has been disclosed to a third party, unless that privilege is expressly reserved.

To retain privilege, a party u can argue that a document ought to be protected by common interest privilege.  The concept of common interest privilege is effectively an extension of legal professional privilege.  It preserves legal professional privilege where the third party, recipient, or creator of a communication, has a common interest in the subject of the privilege with the primary holder. 

For a party to rely on common interest privilege, the party relying on the privilege bears the burden of proof in demonstrating there was a common interest in disclosing to that third party.

Court's Findings
In this matter having considered the affidavit evidence of Mr Delaney and given the opportunities afforded to him to satisfy the Court that the documents were privileged, the Court concluded that he had failed to discharge the requisite burden of proof required to maintain his assertion that the documents at issue were privileged.

Conclusion
This case serves as a useful summary on legal professional privilege and a timely reminder that a party who asserts that position must discharge the burden to maintain their privileged position.

Written by: Neil Cahill