The Irish High Court has held that the concept of "once privilege always privileged" only applies to claims to privilege based on legal advice privilege, and not to litigation privilege. 

Whilst it is well-established that legal advice privilege is permanent in duration and, unless waived, lasts forever, there has been uncertainty over the duration of litigation privilege.  The decision also demonstrates the narrow scope of litigation privilege, and the difficulties of proving that anticipated litigation was the dominant purpose of a document. 

The Court ordered disclosure of witness statements which had been prepared after litigation had been threatened or apprehended, on the grounds that while one of the purposes for the preparation of the statements was the apprehended litigation, an equal purpose was for the preparation of a flood report.  The Court also ordered disclosure of three flood reports, including one which had been prepared for the purpose of earlier legal proceedings.  The Court found that as the objective purpose of litigation privilege is to give a party the opportunity to prepare its case without interference from the opposing party and without fear of premature disclosure, there is no reason for litigation privilege to extend beyond the final determination of either that litigation, or closely related litigation.

The Facts

The case of University College Cork - National University of Ireland v The Electricity Supply Board [2014] IEHC 135, concerned a claim for damages for negligence, breach of duty, nuisance and pursuant to the rule in Rylands v Fletcher arising out of a flood which burst the banks of the River Lee in 2009.  In these proceedings, the plaintiff sought inspection of certain documents and the defendant sought to assert litigation privilege over the same documents.  Two categories of documents were at issue, firstly, witness statements from staff of the defendant that had an active role in the flood management which had been created since the 2009 flood, and secondly, prior flood reports created in 1990, 1997, and 2000.

There was no real dispute about the principles applicable to the defendant's claim to litigation privilege.  These were summarised as follows:

  1. Litigation privilege constitutes a potential restriction and diminution of a full disclosure, both prior to and during the course of legal proceedings which is desirable for the purpose of ascertaining the truth and rendering justice.  As such, it must be constrained. Smurfit Paribas v AAB Export Finance [1990] 1 I.R. 469 per Finlay C.J. at p. 477.
  2. The purpose of litigation privilege is to aid the administration of justice, not to impede it.  In general, justice will be best served where there is candour and where all relevant documentary evidence is available.  Gallagher v Stanley [1998] 2 I.R. 267 per O'Flaherty J. at p. 271.
  3. The document must have been created when litigation is apprehended or threatened.
  4. The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation. Gallagher v Stanley [1998] 2 I.R. 267 at p. 274 approving the test propounded by the House of Lords in Waugh v British Railways Board [1980] A.C. 521. 
  5. The dominant purpose of the document is a matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created.  Gallagher v Stanley and Woori Bank & Hanvit LSP Finance Ltd v KDB Bank Ireland Ltd [2005] IEHC 451.
  6. The onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or enable his solicitor prosecute or defend an action. Woori Bank and Downey v Murray [1988] N.I. 600."

The Decision

The High Court ordered disclosure of all the documents sought on the basis that the defendant had failed to establish litigation privilege.

Witness Statements created post-2009

The Court was satisfied that the defendant had established that a purpose of the preparation and transmission of the witness statements was apprehended or threatened litigation. 

However, it found that there were also two other potential purposes for which the statements may have been prepared and transmitted.  Firstly, an investigation of the events leading to the 2009 flood was required for the purposes of a presentation by representatives of the defendant to the Joint Oireachtas Committee on Environment, Heritage and Local Government.  Secondly, it was "usual practice" for the defendant to engage ESB International (ESBI) to prepare a report following an event such as the 2009 flood, and thus an equal purpose of the witness statements was the preparation of the ESBI report.

Accordingly, the Court held that the defendant had not established, as a matter of probability, that the apprehended or threatened litigation was the dominant purpose for which the witness statements were prepared and transmitted. 

The Court also noted that the fact that the witness statement were headed 'Privileged and Confidential' and followed by a statement "this statement is prepared for the purpose of consideration by ESB's legal advisers in contemplation of proceedings against ESB", was not determinative of the purpose of the preparation of the statements.

Prior Flood Reports

Finlay Geoghegan J. noted that neither the 1997 report nor the 2000 report were addressed to legal advisers for use in litigation, nor did they contain any reference to any specific claim against the defendant.  She concluded from the nature of the reports, (which had been prepared by the Station Manager of the defendant and detailed the precise facts leading to the flood events at the relevant periods), and the evidence in relation to the "usual practice" of the defendant to engage ESBI to prepare a report following a major flood event, that as a matter of probability, the dominant purpose of the preparation of the 1997 or 2000 reports was not apprehended or threatened litigation.

The Court found that the 1990 report had been prepared for the dominant purpose of earlier Circuit Court proceedings brought against the defendant, but went on to consider whether the privilege subsisted in these proceedings.

Duration of litigation

The Court held that just because the 1990 report had been privileged in previous legal proceedings, did not mean that the defendant was automatically entitled to assert privilege over it in these proceedings, and that there was no close connection between the two sets of proceedings.

Finlay Geoghegan J. declined to follow the judgments in Bord na Mona v Sisk [1990] 1 I.R. 85 and Quinlivan v Tuohy (Unreported, High Court Barron J., 29 July, 1992) which followed the judgment of the English Court of Appeal in The Aegis Blaze [1986] 1 Lloyds Rep. 203, and are authority for the view that litigation privilege lasts forever in this jurisdiction (which remains the position in England and Wales).  She noted that as these decisions were given more than 20 years ago, as they failed to consider earlier authorities (including Kerry County Council v Liverpool Salvage Association [1904] 38 I.L.T.R 7 and Porter v Scott [1979] N.I. 6) and the purpose of litigation privilege as distinct from legal advice privilege, that the duration of litigation privilege should be reconsidered in the context of the general principles in relation to discovery set out in the Supreme Court decision in Bank v AAB Export Finance Limited [1990] 1 I.R. 469 at p. 477. 

Finlay Geoghegan J. found the judgment of the Supreme Court of Canada in Blank v Canada 2006 S.C.C. 39, [2006] 2 S.C.R. 319 to be very persuasive authority, and to be consistent with the judgment of the Supreme Court in Smurfit Paribas. In Blank, Fish J. stated: "the litigation privilege and the solicitor-client privilege [i.e. legal advice privilege] are driven by different policy considerations and generate different legal consequences…The purpose of the litigation privilege…is to create a 'zone of privacy' in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose – and therefore its justification…Thus, the principle 'once privileged, always privileged', so vital to the solicitor-client privilege, is foreign to the litigation privilege."

Accordingly, the Court held that the maxim "once privileged, always privileged" applies only to legal advice privilege and not to litigation privilege. 

Comment

This is an important decision, which clarifies that the protection afforded to documents by litigation privilege will not extend beyond the particular legal proceedings for which they were prepared, or closely related actions. It also serves as a warning to legal practitioners and clients of the restrictive approach taken by the Irish courts to claims of litigation privilege and the difficulties of proving that anticipated litigation was the dominant purpose of a document.

It is a further reminder of the importance of involving lawyers as early as possible in relation to potentially contentious matters, in order to ensure that any reports or other documents produced are protected by privilege. By appointing lawyers to lead any investigations, clients may be able to rely on legal advice privilege.