Jurisdiction And Legal Advice Privilege

• Published date: 18 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: William Fry
• Author: Mr Derek Hegarty and Laura Murdock

Legal Professional Privilege recognises a client's right to be honest with their legal adviser, without fear of disclosure of sensitive information to other parties. The courts in this jurisdiction recognise two categories of Legal Professional Privilege:

1. Litigation Privilege attaching to communications made with the dominant purpose of preparing for litigation; and
2. Legal Advice Privilege.

In this article we focus on the category of Legal Advice Privilege and how jurisdiction can impact the assertion of it.

The Irish courts have established that Legal Advice Privilege will only apply to:

• confidential communications;
• between a lawyer;
• and a client;
• for the purpose of giving or receiving legal advice.

Where all of these conditions are not satisfied, an assertion of Legal Advice Privilege will usually fail, and disclosure will have to be made.

For many practitioners Legal Advice Privilege is not an issue that arises very often. However, when it does arise it can be of critical importance. Below we consider two questions which we are commonly asked in relation to jurisdiction and asserting Legal Advice Privilege.

Is legal advice given by a practising solicitor working in Ireland who holds a practising certificate issued by a body other than the Law Society of Ireland covered by Legal Advice Privilege?

In principle yes, provided the solicitor can demonstrate they are a qualified and practising and that the communications in question are made by them in that capacity and all the other conditions of Legal Advice Privilege identified above have been met.

However, in practice, the courts interpret this strictly. For Legal Advice Privilege to apply, the communication must be between parties who have a lawyer-client relationship. That means the lawyer must be a practising solicitor or barrister and must also be acting in their capacity as a lawyer when giving the advice.

In McMahon v Irish Aviation Authority [2016] IEHC 221 the court confirmed that the definition of "lawyer" for this purpose includes:

• solicitors
• barristers
• salaried in-house legal advisers and
• foreign lawyers.

The High Court in F&C Reit Property Asset Management Plc v Friends First Managed Pension Funds Ltd [2017] IEHC 383 upheld the defendants challenge to a claim for privilege relating to advice given by a UK qualified solicitor to an Irish incorporated company. While the jurisdiction was not challenged in this case, the Irish Court of Appeal overturned the High Court and sustained...