Legal Privilege Update: Part 1 Of 3

The High Court has recently handed down a number of key decisions on legal privilege. These decisions, which are discussed in our three part update series (see Parts 2 and Part 3), confirm the criteria for sustaining a claim of litigation privilege, together with addressing the maintenance and loss of a claim of litigation privilege in subsequent proceedings. The High Court decision in Quinn & ors v. Irish Bank Resolution Corporation & ors [2018] IEHC 481 also deals with issues of privilege and waiver in the context of disclosure of privileged documents.

Criteria for sustaining a claim of litigation privilege

In Artisan Glass Studio Limited v. The Liffey Trust Limited and others [2018] IEHC 278, the plaintiff challenged the claim of privilege asserted by the second defendant in respect of a record of inspection and a report from its appointed engineers, Burgoynes, Consulting Scientists and Engineers ("Burgoynes").

This case concerned a fire at a premises owned by the first defendant. The plaintiff and second defendant were unit holders in the premises. The plaintiff alleged that the fire started in the second defendant's premises and escaped to the plaintiff's premises causing substantial damage to it. The second defendant was insured with Hibernian Insurance, now Aviva ("Aviva"). Aviva claimed privilege over the documents prepared by Burgoynes.

In deciding whether the documents prepared by Burgoynes were protected by litigation privilege, the court examined the following questions and considerations: i) whether litigation was reasonably apprehended as at that date of creation of the documents; ii) whether the documents in question were brought into being for the purpose of that litigation; iii) whether litigation was the dominant purpose of the documents (where there was more than one purpose); and iv) the party claiming privilege is required to prove that assertion.

Was litigation reasonably apprehended as at that date of creation of the documents?

In assessing whether litigation was reasonably apprehended as at that date of creation of the documents, the timing of the creation of the documents was closely considered in light of the background facts. The fire had broken out on the premises on 2 November 2002. The insurers for the second named defendant had appointed loss adjusters on 4 November 2002, who appointed Burgoynes on the same day. Solicitors were appointed on 16 November 2002. The record of inspection was created by Burgoynes on...