The recent High Court decision in Artisan Glass Studio Ltd v The Liffey Trust Ltd & Others (2018) IEHC 278 clarifies which criteria must be satisfied in order to sustain a claim of litigation privilege. Litigation privilege operates to remove the obligation on a party in litigation to disclose certain relevant documents. If the privilege didn’t apply, the documents would have to be disclosed.
The dispute in this matter related to a fire which broke out on the premises of Slovak Ltd and which spread onto the Plaintiff’s premises causing severe damage. Slovak had a fire insurance policy with Aviva who claimed litigation privilege over a record of inspection and also a report which was prepared by Burgoynes Consulting Scientists and Engineers (“Burgoynes”). Burgoynes had been appointed to conduct forensic inquiries two days after the fire. Burgoynes produced a record of inspection on 15 November 2002 and a report on 20 March 2003.
The Court stated the first issue in determining the status of a document, over which litigation privilege is claimed, was whether litigation was reasonably apprehended at the time of its creation. When determining this, the Court considered the chronology of the March 2003 report and the November 2002 inspection. The Court concluded that there was no doubt that litigation was contemplated when the report was created on 20 March 2003 as the Plaintiff’s solicitors had already written to Slovak in February 2003 expecting an intention to pursue a claim.
The Court then considered whether litigation was the dominant purpose of the document. The Court stated that a party claiming privilege should provide all sufficient explanations and materials to allow the Court to assess whether litigation was the dominant purpose of the document. If the explanations were inadequate or lacking in content, the Court must make its own assessment based on the evidence before it.
Considering the record of inspection the Court concluded that there was nothing that would indicate that the dominant purpose of the record of November 2002 inspection was contemplated litigation and it was therefore not covered by litigation privilege. However, in relation to the March 2003 report, the Court found that the document was directed at enabling Aviva to defend any claims which might be made against Slovak. As such, the dominant purpose of this document was the apprehended litigation and the document was protected from disclosure by litigation privilege.
The Plaintiff argued that any parts of the report that referred to liability could be redacted and subsequently disclosed. The Court determined that it would be inappropriate to edit the text of the report in the manner suggested so that extracts could be released to the Plaintiff. The Court relied on previous case law where the issue had arisen in, concluding that it would be inappropriate to direct that any part of the privileged March 2003 report should be disclosed.
In order for a claim of litigation privilege to succeed, litigation must be reasonably apprehended at the time of the creation of the document and litigation must be the objectively-determined dominant purpose for which the document was created.