Check Your Privilege: Meaningful Narrative And An Irish Solicitor's Confirmatory Affidavit

In preparing for a trial, parties are required to seek out and disclose on affidavit certain categories of documents to one another. In that process, known as "discovery", parties are required to list - but are permitted to refuse to provide copies of - certain classes of documents. The relevant classes are based on long-established legal principles that justify a refusal, and each class is termed a "privilege".

In a significant judgment1, 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.

Background

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...