Legal Privilege Update: Part 2 Of 3

This is the second article in our three part update series and deals with the maintenance and loss of a claim of litigation privilege in subsequent proceedings (See Parts 1 and Part 3).

Litigation Privilege in subsequent proceedings

In Ryanair Ltd v. The Revenue Commissioners & ors [2018] IECA 222, the issue before the Court of Appeal was whether a successful claim of litigation privilege in respect of certain classes of documents arising in an initial set of proceedings (between A and B) could continue to a separate subsequent set of proceedings (between B and C).

Background

The case concerned an appeal by Aer Lingus plc and Ryanair Limited against the High Court decision of Barrett J. who held that the State was entitled to claim litigation privilege in respect of documents deployed by it in the course of defending proceeding brought by the European Commission and that privilege endured for the purposes of defending separate proceedings subsequently brought by the two major airlines, who are the litigants in those proceedings.

Conclusion

The Court of Appeal held that the documents which were protected by litigation privilege in the initial set of legal proceedings were not protected by litigation privilege in separate subsequent proceedings in circumstances...