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GAZETTE •
- APRIL 1978
made for the purpose of pending or contemplated
litigation but this is, of course, one important kind of
c ommu n i c a t i on which is p r i v i l eged. Such
communications include notes, rccords and information
made or obtained with a view to litigation, whether
commenced or only contemplated, including therefore
instructions to counsel or solicitor, cases to advise,
reports, briefs etc. prepared on the client's behalf. As
there are not clear rules for establishing when litigation is
actually "contemplated" it is for the Court to decide on
this in each case when the matter is put in issue.
The other kind of communications which are protected
are confidential communications which have passed at
any time between a client and his legal adviser in his
professional capacity as such for the purpose of the
former obtaining legal advice for the protection of his
interests. These communications include notes and other
records of such communications made for the same
object. It is important that the communications are made
to enable the client to obtain, or the legal adviser to give,
advice on a professional matter. It will be appreciated,
therefore, that where, for example, a woman with
marriage problems consults her solicitor for the purpose
merely of discussing her problems vithin a confidential
relationship, as may happen in this country where legal
action is ruled out for one reason or another, and not for
the purpose of obtaining legal advice on the matter, such
communications, though certainly confidential, may not
be protected from disclosure in any subsequent
proceedings, as the communications were not made to the
solicitor in his capacity as such, but as, perhaps, marriage
counsellor; and in these c i r cums t ance s, the
communications would not have been made for the
purpose of obtaining legal advice on a professional
matter. This proposition may be supported by the
decision in the case of Thomas v. Eawlings (1859) 27
Bea. 140 where it was held that the communication must
have been made not merely during the relationship but
also on a professional matter. It may be, however, that in
most situations, the solicitor would also be called upon to
advise on legal matters and, of course, in these
circumstances the communications would be protected by
the privilege. On the same principle, when a plaintiffs
solicitor also acted as his patent agent, he was ordered to
answer interrogatories with reference to documents which
passed between them at the time when a specification was
prepared, such communications not having taken place in
the relationship of legal adviser and client or on a
professional matter: Mosely v. Victoria Rubber
Company 3 R.P.C. 351. Patent agents in Ireland are not
considered as professional advisers when performing their
ordinary work such as preparing specifications, and
communications with them are not privileged. In the
United Kingdom, however, communications with patent
agents are now protected by Section 15 of the Civil
Evidence Act, 1968, but no such statutory measures have
been introduced here.
There is a further situation in which the legal adviser
will not be protected by the privilege despite the fact that
he is acting on instructions in a professional capacity. In
McKeogh
v.
O'Brien
[19271 I,R, 348 a question arose as
to the privilege to be extended to a letter written by a
solicitor on behalf of a client. It was laid down in that case
that a solicitor, in correspondence with third parties, is in
no better position than his client. He is not free to write
anything his client may suggest or state in relation to third
parties. He is bound to exclude from his letter anything
62
defamatory that is not relevant to. the occasion. The letter
in question, which was written by a solicitor on behalf of
his client, contained a statement which was an
independent and extraneous matter, unconnected with,
and not reasonably relevant to, the purpose of the letter;
and it was held that the statement was not privileged, and
as it was a very damaging statement to make, and was .
untrue in fact, the solicitor was liable in damages. It will
be appreciated therefore that the legal adviser should
carefully consider what he is being asked to state or write
on behalf of his client.
Another matter that remains to be considered is the
question of the scope of the term "client" in relation to
enterprises and Corporations. The Irish Courts do not
appear to have been called upon to decide whether the
privilege is confined to communications between the legal
adviser and special officers of such corporations and
enterprises. The writer's personal view is that only
communications between the corporation's legal adviser
and such of its officers as are authorised to obtain advice
on its behalf are protected from disclosure, but it is
possible that our Courts would hold that communications
with any corporate employee are privileged provided the
other requirements of the rule are fulfilled.
There are only two exceptions to the rule. The first
relates to communications made in order to facilitate the
perpetration of a fraud or a crime. In the leading English
case on the subject,
R. v. Cox and Railton
(1884) 14
Q.B.D. 153, the Court for Crown Cases Reserved
decided that if a client applies to a lawyer for advice
intended to guide him in the commission of a crime or
fraud, the legal adviser being ignorant of the purpose for
which his advice has been sought, the communication
between them is not privileged. If, of course, the legal
adviser participates in the criminal purpose he ceases to
act as a lawyer, and no protection whatever is afforded to
communications in these circumstances. The principle has
been extended to civil cases in which fraud is alleged:
Williams r. Quebrada Railway, Land and Copper
Company
(1895) 2 Ch. 751. Since that case, it has been
stressed that there should be prima facie evidence that it •
was the client's intention, in taking the advice, to
perpetrate a criminal or fraudulent scheme before the
Court will consider whether the situation comes within the
exception to the rule:
O'Rourke
v.
Darbyshire
(1920)
A.C. 581. The other exception relates to facts discovered
in the course of the relationship of legal adviser and client.
This simply means that the privilege applies only to
communications. Hence, a legal adviser can be obliged to
disclose the identity of his client:
Bursill v. Farmer (1885)
16 Q.B.D. 1. Furthermore, the privilege does not prevent
the disclosure of facts observed by either party in the
course of their relationship as client and legal-adviser. In
Brown
r. Foster (1857) 1 HON 736. for example, it was
held that a barrister who saw a book produced at the trial
of his client could testify, without the client's consent, in
subsequent proceedings on the question whether it
contained a particular entry when he previously saw it at
the preliminary hearing.
It is important to emphasise that the privilege is that of
the client and furthermore it enures for the benefit of his
successors in title with regard, for example, to documents
handed over by him:
Minet v. Morgan
(1873) 8 Ch. Aff.
361. In another English decision.
Calcraft v. Guest
(1898) 1 Q.B. 759. it was held that the original of the
proofs and notes on evidence with which the case was
concerned were protected from production and
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