The High Court has clarified in a recent judgment the criteria which must be satisfied in order to sustain a claim of litigation privilege. The judgment makes clear that a party claiming privilege must provide all material necessary to enable the court to assess whether litigation was the dominant purpose of the document. The judgment also indicates that the court will take a nuanced approach to a privilege claim, and may order discovery of documents attached or annexed to a document which has been found to be privileged.
In Artisan Glass Studio Ltd v The Liffey Trust Ltd,1 the dispute related to a fire which broke out on the premises of Slovak Ltd (“Slovak”) and spread to the plaintiff’s premises, causing severe damage. Slovak had the benefit of a fire insurance policy with Aviva Ltd (“Aviva”). Aviva claimed privilege over a record of inspection and a report, each prepared by Burgoynes Consulting Scientists and Engineers (“Burgoynes”), who had been appointed to conduct forensic inquiries two days after the fire.
Issues: litigation reasonably apprehended?
McDonald J noted that the first issue in determining whether these documents were privileged was whether litigation was reasonably apprehended at the time of their creation. The record of inspection and the report were created on 15 November 2002 and 20 March 2003 respectively. The fire had occurred on 2 November 2002. Aviva first appointed loss adjusters on 4 November 2002 who in turn appointed Burgoynes on the same day to investigate the loss on Aviva’s behalf. Aviva appointed solicitors on 16 November 2002, the day after the record of inspection was created. McDonald J found that having regard to this chronology, and the fact that there had been considerable communication among the solicitors, loss adjusters and Aviva on the potential for third party claims prior to the creation of the record of inspection, litigation was contemplated at the point of its creation. He also concluded that there was no doubt that litigation was contemplated when the report was created on 20 March 2003, as the plaintiff’s solicitors had already written to Slovak intimating an intention to pursue a claim in February 2003.
Issues: dominant purpose?
McDonald J next considered whether litigation was the dominant purpose of the documents, it being accepted that the documents in question were brought into being for the purpose of litigation. He cited with approval the judgment of the House of Lords in Waugh v British Railways Board2 where Lord Wilberforce stated that litigation must be the sole or the dominant purpose of the document, and “to carry the protection further into cases where that purpose was secondary or equal with another purpose would seem to be excessive.” The dominant purpose of a document is, the judge held, a matter for objective determination by the court, which is not bound by a bald assertion in an affidavit. The judge pointed out that the affidavits filed by Aviva presented real difficulties as they asserted that litigation was the dominant purpose of the creation of the documents without making any attempt to explain the other purpose(s) of the documents. He said that a party claiming privilege should provide all sufficient explanations and materials to allow the court to assess whether litigation was the dominant purpose of the document. In the absence of such explanations, the court must make its own assessment based on the content of the documents and the evidence before it.
McDonald J noted that the first question an insurer will wish to address in a case such as this is whether the loss is covered by the policy. In this case in particular, Aviva would have wanted to satisfy itself that the fire was not caused by a deliberate act of the insured. Indeed, this assessment was borne out by the contents of the record of inspection. It made reference to the fact that Slovak’s unit was well-maintained and the rent was paid three months in advance. These comments appeared to be directed at the character of the insured and therefore relevant to Aviva’s consideration of its own exposure to the insured. The judge concluded that there was nothing that would indicate that the dominant purpose of the record of inspection was contemplated litigation with third parties and it was not covered by litigation privilege.
With regard to the report, the court found that by the time of its preparation, Aviva was not still considering the question of its own liability to the insured. The report constituted a careful examination of the cause of the fire and was therefore directed at enabling Aviva to defend any claims which might be made against Slovak. As such, the dominant purpose of this document was the apprehended litigation and the document was protected by litigation privilege.
McDonald J finally considered the plaintiff’s submission that extracts of the report which contained a factual description of the site could be made available, while any parts relating to liability could be appropriately redacted. The judge referred to the decision in Duncan v Governor of Portlaoise Prison,3 where it was held that “the proposition … that the court ought … to direct the production of the documents in respect of which legal professional privilege is claimed and then, in effect, edit them so as to make factual matter in them disclosable … would be to dilute in very considerable measure the whole notion and effect of legal professional privilege” which is “..much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests”.4 He also noted that in Quinlivan v Governor of Portlaoise Prison,5 the Supreme Court had held that there is “no authority … to provide justification for this concept of editing communications between professional legal advisors and their clients. It appears to me to be wrong in principle.” On this basis, the judge was satisfied that it would be inappropriate for him to embark on editing the text of the report so that extracts could be released to the plaintiff.
However, he took a different view in relation to photographs attached to the report (which were essentially separate documents attached by way of reference to the report). He noted that it was not clear when the photographs were taken. If they were taken when Aviva was still considering its own liability to Slovak, then they would not be privileged for the same reasons outlined in connection with the record of inspection. He therefore decided that it would be appropriate for Aviva to separately list the photographs and the dates of their creation in a supplemental affidavit. He reached a similar conclusion in relation to a fire brigade report annexed to the Burgoynes report. The fire brigade report was discoverable on the basis that it was requested on 13 November 2002, at a time when the dominant purpose of Aviva’s retainer of Burgoynes could not be said to be litigation.
This lucid judgment usefully summarises the key principles applicable to claims of litigation privilege and how they should be applied in practice. These include that for such a claim to succeed, litigation must be reasonably apprehended at the time of the document’s creation, and that litigation must be the objectively-determined dominant purpose for which the document was created. Appending non-privileged documents to a privileged document will not convert them into privileged documents, but once a document is litigation-privileged, that privilege extends to the document as a whole and it is neither necessary nor appropriate to require production of any parts of the document which taken separately would not be privileged.
1,  IEHC 278.
2,  AC 521.
3,  1 IR 558.
4, R v Derby Magistrates Court ex parte B  3 WLR 681, 695.
5, Unreported, Supreme Court, 5 March, 1997.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
Many thanks to Megan Hooper and Kevin Kennedy at McCann FitzGerald for permission to reproduce this article.