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 where the initial proceedings had concluded and the subsequent proceedings were not "closely related".

In deciding that the two sets of proceedings were not "closely related", the Court of Appeal considered two factors: (i) that the parties named in each of the proceedings were entirely different; and (ii) that there was no clear link between the two proceedings.

Comment

This judgment shows that parties in litigation should not assume, just because there is a connection between two separate sets of proceedings, that a court will automatically consider that the proceedings are "closely related" so as to preserve a claim for litigation privilege.

Litigation Privilege and witness statements

The question considered in Defender Limited v. HSBC Institutional Trust Services (Ireland) Limited [2018] IEHC 587 was whether a witness statement loses privilege when it is served on the opposing party or whether it remains privileged until it is adopted by a witness in open court.

Background

This case related to litigation arising from the Madoff fraud. The plaintiff, Defender Limited, requested discovery of witness statements and expert reports from two sets of earlier proceedings involving the...