If a witness adopts his witness statement while giving evidence in open court, then any litigation privilege attaching to that statement is lost. But does a witness statement lose privilege when it is served on the opposing party but never adopted in open court? What is the privileged status of a witness statement which is not adopted but is used in court?
These were some of the questions recently considered by the High Court in Defender Ltd v HSBC Institutional Trust Services (Ireland) Ltd.1 In that case, Defender brought proceedings against HSBC alleging negligence in relation to its alleged role as a custodian of funds on its behalf. HSBC had also been previously sued in separate ‘closely connected’ proceedings by an unrelated party. Those earlier proceedings settled, but some of the HSBC witnesses who had been due to give evidence in the earlier proceedings were also now due to give evidence in the Defender proceedings.
Issue for the court
Defender sought their previous witness statements as well as expert reports in order to see if there were inconsistencies between the statements of those HSBC witnesses in the current Defender proceedings when compared with the statements of the same witnesses in the earlier proceedings.
It was accepted that although litigation privilege will generally come to an end when a set of proceedings conclude, it can survive to apply in subsequent, ‘closely connected’ proceedings such as those here.
The issue for the court was whether HSBC witness statements from the earlier proceedings which were served on the other side in those proceedings but not adopted by the witnesses as their evidence in court (because the case settled), remained privileged, so as to be unavailable on discovery to Defender in the current ‘closely connected’ proceedings? Decision of the court
Pointing first to the fact that such witness statements lacked any evidential value, and noting that Order 63A was silent on the issue, Twomey J. concluded that there were a number of policy reasons why these witness statements should remain privileged.
He noted that often cases settled not only after witness statements had been served but after a hearing had commenced. It would be a disincentive to parties settling at this stage, if having revealed their hand completely and fairly to the other side in a witness statement (in the hope, perhaps, of settling), that litigants would lose a particular benefit of settling, namely avoiding a public airing of their dispute as set out in their witness statements. This benefit would be lost simply because they had not managed to settle their dispute before those statements had been served. There was a strong public interest in ensuring that every effort was made to settle cases so that court resources were not wasted, particularly in long running cases which would monopolise the court’s time to the detriment of other litigants.
Therefore, there were good reasons for attaching privilege to witness statements until the very last minute ie until they had been adopted by the witness in evidence or put into the public arena. If they were ultimately not used in this way, the litigation privilege could survive past the conclusion of those proceedings but only if subsequent proceedings were ‘closely connected’ with the proceedings in which the documents were originally provided.
The court then went on to consider the position where a witness statement had been served on the other side, not adopted by that witness in open court (as the case settled in advance of that witness giving evidence) but had been relied on in court when cross-examining another witness. Twomey J. held that the use of a verbatim extract and several summaries of various parts of a particular witness statement, without any caveat or restriction, in the cross examination of the plaintiff in the earlier proceedings amounted to a substantial reference to that witness statement. Thus, the ‘effective opening’ of that witness statement in court by HSBC (in the earlier proceedings), albeit that it was not adopted by the witness, meant that the witness statement was effectively ‘put into the public arena’ leading to a loss of privilege.
This is an interesting and helpful judgment insofar as it addresses a specific aspect of the law of privilege not previously considered by the courts. However, the wider impact of the judgment may be tempered by the judgment in UCC v ESB2 where, as recognised by the court in this case, it was held that litigation privilege will only continue beyond the final determination of a particular set of proceedings to apply in subsequent proceedings if those later proceedings are ‘closely connected’ to those going before. This means that it may be only in a relatively narrow set of circumstances that this new decision of the High Court will come into play.
1,  IEHC 587.
2,  2 IR 525.
Many thanks to Seán Barton and Megan Hooper at McCann FitzGerald for permisison to reproduce this article.
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