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GAZETTE
JULY/AUGUST 1990
. ^ J l
•
r j j f
LAWBR I EF
Edited by/Eamonn
G . Hall, Sol i c i tor.
Fair Trade Commi ss i on Report
The
Repo rt of S t u dy i nto
Restrictive Practices in the Legal
Profession
was published by the
Fair Trade Commission on July 5,
1990. The report will be studied by
the Council of the Law Society and,
after canvassing the views of
members, a submission will be
made in due course to the Minister
for Industry and Commerce.
In a statement on July 6, 1990,
the Law Society stated that it
reserved its views on the report but
made the following comments:
" The Law Society shares with
the Commi s s i on and the
Minister a concern that the
public have access to a modern,
efficient and effective legal ser-
vice at reasonable cost. This has
been reflected in the many
changes implemented by the
Law Society on behalf of its
members in recent years.
These changes include free-
dom by solicitors to advertise
t he ir se r v i ces as we ll as
advances in the education and
training of solicitors - there are
now f our t imes as many
solicitors as there were in the
1970s.
The Law Society has also
called for an increase in the
jurisdiction of the District and
Circuit Courts, subject to the
provision of the required back-up
services. The Law Society has,
for many years, sought the
establishment of a Small Claims
Court.
The Law Society is on record
as welcoming lay representation
on its Disciplinary Committee.
In addition to its Compensa-
tion Fund to protect the public,
the Society has been successful
in ensuring that the vast majority
of solicitors carry Professional
Indemnity Insurance.
Solicitors by their actions have
shown that the interests of the
public are their primary concern
and therefore can be counted on
to participate wholeheartedly in
all positive changes in the law
and the practice of the law".
Certain communications bet-
ween a lawyer and client are not
privileged.
The case of
Smurfit Paribas Bank
Limited -v- AAB Export Finance
Limited, (The Irish Times Law
Report,
11 June, 1990) raised
important aspects of the law and
practice relating to privilege and
discovery. The Supreme Court
(Finlay CJ, Walsh and McCarthy JJ)
held that communications between
a lawyer and his client for the
purpose of seeking or obtaining
legal assistance - as distinct from
legal advice - were not privileged
from disclosure.
The Supreme Court so held in
dismissing an appeal by the
defendant against an order made
by Costello J in the High Court on
March 13, 1989 directing the
further discovery of all correspond-
ence or other instructions passing
between the defendant and the
solicitors then acting for the de-
fendant in relation to the defend-
ant's floating charge which was in
issue in the proceedings.
Finlay CJ agreed wi th Costello
J's conclusion that the documents
in respect of which privilege had
been claimed did not request and
did not contain any legal advice
about the proposed transaction,
that they contained references to
the instructions which the de-
fendant's solicitors received from
the
de f endant
and
f u r t her
instructions and clarifications of
instructions given by the defendant
and the solicitors and that these
instructions were given to enable
the defendant's solicitors to draft
the documentation necessary to
complete the transaction or later to
advise on draft documents which
other parties to the transaction
might prepare for their consider-
ation.
In his judgment, Finlay CJ said
that in order to determine whether
documents were privileged from
disclosure it was necessary to as-
certain what were the underlying
principles of the doctrine of pri-
vilege of communications between
a client and his lawyers. The
question as to whether a party to
litigation would be privileged to
refuse to p r oduce pa r t i cu l ar
evidence was a matter within the
sole competence of the Courts. It
was for the Courts to decide which
was the superior interest in the
circumstances of the particular
case and to determine the matter
of privilege f r om d i sc l osu re
accordingly. The existence of a
privilege or exemption from dis-
closure for communications made
between the person and his lawyer
clearly constituted a potential
restriction and diminution of the full
disclosure both prior to and during
the course of legal proceedings
which, in the interests of the
common good, was desirable for
the purpose of ascertaining the
truth and rendering justice. Such
privilege should, therefore, only be
granted by the courts in instances
wh i ch had been identified as
securing an objective which, in the
public interest in the proper
conduct of the administration of
justice, could be said to outweigh
the disadvantage arising from the
restriction of disclosure of all the
facts.
The Chief Justice stated that for
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