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...