In a recent judgment, the Commercial Court has confirmed that litigation privilege can extend to documents created for the dominant purpose of a regulatory or criminal investigation.
Under Irish court procedures discovery must be made on oath by way of a sworn affidavit of discovery, which lists each relevant document, including those over which legal professional privilege is asserted. Privileged documents are immune from inspection but a party receiving an affidavit of discovery is entitled to challenge privilege calls.
Litigation privilege attaches to documents created for the dominant purpose of actual or reasonably apprehended litigation. Where litigation privilege does attach, the entire document is privileged and can be withheld.
In recent years, the courts have confirmed that litigation privilege is not confined to litigation in the traditional sense but has broader application. In Ahern v Mahon1 , litigation privilege was held to apply to communications with a banking expert created in anticipation of appearances as a witness before a Tribunal of Inquiry, where the witness’s conduct was under examination. As a person whose conduct was impugned Mr Ahern was entitled to a range of fundamental constitutional briefing rights, including fair procedures and the entitlement to invoke litigation privilege in respect of the documents in question. In so finding the court approved the approach taken by the then House of Lords in Three Rivers District Council v Governor and Company of the Bank of England (No. 6). 2
Now, in a significant move, the Commercial Court has confirmed that litigation privilege can apply where a document has been created for the dominant purpose of a regulatory or criminal investigation.3 Where an individual or organisation generates a document for the purpose of defending an investigation by a regulatory authority, therefore, a claim to litigation privilege will be valid and the document can be withheld from inspection, provided that the document meets the dominant purpose test.
This is a welcome clarification of this area of the law for clients and practitioners alike. It provides greater certainty for investigating authorities and those under investigation when challenging or defending assertions of litigation privilege.