The Gazette 1978

GAZETTE •

- APRIL 1978

Legal Professional Privilege in Irish Law

John V. O'Dwyer, B.C.L., Solicitor

In our legal system there is a rule of Evidence which

provides that professional communications within the

ordinary scope of professional employment, whether such

communications are oral or documentary, between a legal

adviser and his client are wholly privileged. The client

has power to waive the privilege so that the rule is not for

the protection of the legal adviser as in some legal

systems. The principle is well settled by a number of

leading Irish and English cases and is said to have been

established for the better administration of justice and for

the protection of the confidence which exists between a

legal adviser and his client. The rule is justified on the

grounds that disclosure of such communications or the

production of such documents would be injurious to the

general public interest which is considered to be

paramount to the individual interest of the litigant. Until

recent times it was abundantly clear from the authorities

that the principle will not be set aside by the Courts on the

grounds that in so doing "a higher public interest" would

be served but there is now some doubt and this will be

discussed later. It is of course always open to the

legislature to cut down the operation of the principle and

this has happened in recent fiscal legislation as a result of

which a legal adviser may be obliged to disclose

information concerning his client's tax liability which he

may have obtained in the course of professional

communications. The principle is directly applicable in all

proceedings regardless of whether they are civil, criminal

or administrative in character.

The term "legal adviser" refers to solicitors and

barristers but the rule also protects communications by

the client or his agent to the clerk or other subordinates of

the legal adviser and vice versa. Furthermore, in

Geraghty v. Minister for Local Government (No. 1)

(1973 unreported), Kenny J. held that advice by a

qualified legal adviser in a Government department to

other members of the Department is in the same category

as advice by a barrister or solicitor to his client and is

consequently privileged. As regards other "employed

lawyers" or, as they are known "in-house lawyers" there

appears to be no Irish decision on the matter but it is

thought likely that the Courts would follow the English

decisions and hold that communications with

such legal advisers are privileged especially in view of the

High Court decisions in Gcraghty (No. 1) referred to

above. In other words, it is submitted that all qualified

legal advisers acting in a professional capacity would be

protected by the privilege and that the word "qualified" in

this context would be construed to mean "professionally

qualified" as barrister or solicitor as opposed to

"academically qualified" in the Universities. This is of

course a personal view on the matter and it will be

interesting to see how the law develops if the matter is

ever considered in detail in the Supreme Court. It seems

Clear, however, that communications with such legal

advisers will not be privileged unless they are made to or

by the legal adviser in his professional capacity as such.

Where, for example, as well as acting as legal adviser to a

company, a solicitor also acts as a Director,

communications made to or received by him in the course

of performing his duties as a Director will not be

privileged, such communications having been received in

an executive capacity. It is also probable that the Irish

Courts would follow the English decision in Re Duncan

Garfield v. Fry (1968) 2 AU E.R. 395 where it was held

(1) that the privilege extends to documents passing

between parties and their foreign legal advisers whether or

not they relate to proceedings contemplated in England or

elsewhere; and (2) that the privilege attaches to

documents prepared for the purpose of foreign litigation.

The privilege extends to communications, statements,

reports etc. made by other persons on behalf of the client

to the legal adviser if obtained by the latter for the

purpose of litigation or other business, but not otherwise.

However, when litigation is not contemplated,

communications between the adviser and third parties to

enable him to obtain information before giving his opinion

are not always privileged. This was decided in the leading

English decision of Wheeler v. Le Marchant (1881) 17

Ch.D. 675, where the defendant was obliged to produce

reports made to his solicitor by a surveyor with regard to

property that came to be the subject of litigation, the

litigation not having been comtemplated when the reports

were made. The ratio decidendi of this case was followed

in the Irish case of The County Council of Kerry v. The

Liverpool Salvage Association and Thomas Ensor and

Son (1905) 21.R.38. The Court also held in this case that

the privilege does not extend to communications,

documents or reports, etc., between employer and servant

or agents prepared in the ordinary course of business,

even though litigation be anticipated. In his judgement

Kenny J. said that if there was no reference to a state of

circumstance which involved the confidential relationship

of client and legal adviser, the claim would be reduccd to

the simple one of the defendants having given or procured

the information contained in these documents as ordinary

agents for a principal who has no present intention of

taking legal advise with regard to the matter with which

they dealt. "Of this class", he said, "are the documents

which railway and tramway companies are obliged to

produce in everyday practice, consisting of reports as to

the details of accidents forwarded to them by their

engineers, traffic managers, and other officials. There is

no privilege for such documents when they are ante litem

motam, and not covered by the professional privilege

arising from the relationship of legal adviser and client".

His Lordship referred to Worthington v. Dublin, Wicklow

and Wexford Railway Company 22

L.R.Ir

. 310.

However, reports made at the instance and for the use of

a company's solicitor are always protcctcd, so a report

would be privileged if there was a standing arrangement

' that certain information should always be obtained for

the use of the solicitor on the happening of an accident:

Ankin v. London and North Eastern Rail Company

(1930) I.K.B. 527.

It is not essential, however, that the communication is