The decision of the High Court in McMahon v Irish Aviation Authority [2016] IEHC 221 serves as a useful practical aid on claiming privilege. In this case, the Plaintiff challenged the Defendant’s assertion of legal privilege over certain documents. The Plaintiff claimed that the documents should be disclosed to determine if they formed part of a safety investigation concerning him.

Conditions for claiming legal professional privilege

The Defendant in its submission to the Court outlined the conditions for establishing legal professional privilege which were

  1. there must be a communication between the client and the lawyer
  2. the communication must be made in confidence
  3. the communication must be made either to or by a lawyer during the course of a professional legal relationship
  4. the communication must be made for the purposes of the giving or receiving of legal advice.

The definition of “lawyer” for this purpose includes solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General.

Defendant’s arguments

The Defendant submitted that the documents concerned communications exchanged between it and its legal advisers for the “dominant purpose of seeking and providing legal advice”. The documents largely consisted of emails passing between in-house counsel and senior staff of the Defendant in which legal advice from external solicitors was communicated internally, referred to or sought. The Defendant argued that in protracted dealings, there will be a continuum of communications between solicitor and client and “the continuum as a whole can attract legal professional privilege”.

Decision

It was held that there no great dispute between the parties regarding the legal principles attaching to privilege and the Court noted “the right of a party to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice is well established”.

Following a review of the disputed documents, the Court concluded (inter alia) that in addition to the exchanges concerning legal advice between external solicitors and the Defendant, the following were held to be privileged:

  • A continuum of emails containing legal advice;
  • Emails concerning advice sought and received from external solicitors;
  • An email seeking advice from internal counsel regarding draft correspondence;
  • An email enclosing a draft report for review by internal counsel and seeking advice of internal counsel;
  • The draft report attached to the email referred to above (as it contained legal advice).

The following were held not to be privileged:

  • An email enclosing the responses of a third party and the Plaintiff to the draft report, as they merely passed on information;
  • A series of internal emails regarding the finalisation of the report, as legal advice was not sought or given therein; and
  • An email concerning a meeting to discuss editing suggestions to a draft report (although the attached draft report was held to be privileged as it contained legal advice).

The conclusions in this Judgment serve as a helpful practical aid for in-house counsel for conducting a discovery review. If it is anticipated that the issues may result in litigation, then if possible written communications should state that their dominant purpose is to request legal advice as this will aid in claiming privilege.

In-house counsel should also note that following the ruling of the European Court of Justice in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities (Case C-550/07 P), communication between in –house counsel and employees is not legally privileged in the context of competition law investigations by the European Commission.