Privilege Waived, Legal Advice Unveiled: A Cautionary Tale

• Published date: 17 January 2024
• Law Firm: Arthur Cox
• Author: Mr Keith Smith, Michael Twomey, Deirdre O'Mahony, Amelia Walsh and Edel Curry

In a recent judgment, the High Court held that a party waived their right to privilege over legal advices received by it (Elsharkawy v The Minister for Transport [2023] IEHC 672). The Court reached its decision based on a finding that the party went further than merely referring to the fact that legal advice was obtained and chose to disclose, in part, the contents and effects of that legal advice for its litigious advantage.

Background

The applicant sought an order for inspection of a series of documents that contained legal advice received by the respondent, and which had been referred to, by the respondent, in a sworn replying affidavit in the High Court proceedings. The respondent made various references to the fact that their position in the proceedings was based on legal advice. These references were made in two press releases, correspondence between the parties and in an affidavit sworn by the respondent.

Submissions

It was not in dispute that it was permissible for the respondent to refer to the fact that legal advice was obtained. The applicant emphasised...