Extent And Duration Of Litigation Privilege

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 [1990] 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 [1998] 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 [1998] 2 I.R. 267...