The President of the High Court, Mr Justice Peter Kelly, recently delivered judgment regarding information produced by the respondent, Mr Leslie Buckley, former Chairman of Independent News and Media plc ("INM"), to the Director of Corporate Enforcement (the "Director") over which the respondent had asserted legal privilege.
The Director had requested the production of documents by the respondent under section 780 of the Companies Act 2014 (the “Act”) which sets out the Director's power to require a third party to produce books or documents. The documents sought formed part of an investigation by the Director initiated in response to a protected disclosure made by former INM chief executive officer, Mr Robert Pitt, under whistle-blower legislation.
Mr Buckley produced the documents to the Director. However, he asserted legal privilege in respect of 11 documents on the basis that they were legally privileged "for the purposes of providing instructions and obtaining legal advice and also in contemplation/furtherance of litigation and an investigation" by the Director.
The claim of privilege asserted by the respondent
In determining that legal privilege applied to all but one of the documents, Mr Justice Kelly carried out an analysis of each document and ruled that 10 of the documents were privileged and were therefore not disclosable to the Director.
Notably, the Court accepted the respondent's argument that an email sent by his solicitor to an IT expert attaching a draft response to the Director's statutory request could attract a claim of privilege in circumstances where the email was issued "for the purposes of advancing the respondent's draft statement and was sent on a confidential basis and without a waiver of privilege by the respondent."
This judgment provides further clarity on the applicability of privilege in the context of statutory or regulatory investigations which was considered in the Commercial Court's 2015 judgment in Quinn v Irish Bank Resolution Corporation and Kieran Wallace. In that case, the Court established that privilege existed in relation to documents created for the dominant purpose of engaging with the regulatory and investigative processes in question.
For present purposes, Mr Justice Kelly's recent judgment affirms the position that lawyers can be consulted in confidence and that privilege can apply in the context of statutory or regulatory investigations where expert input is sought and provided.
This judgment is likely to provide reassurance for entities involved in any such investigatory or regulatory processes, particularly where expert input is required to prepare a response to the Director's exercise of his power to require the production of books or documents.