Derek Hegarty and
Laura Murdock

Legal professional privilege recognises a client’s right to be honest with their legal adviser, without fear of disclosure of sensitive information to other parties.

The courts in this jurisdiction recognise two categories of legal professional privilege: litigation privilege attaching to communications made with the dominant purpose of preparing for litigation; and legal advice privilege.

In this article we focus on the category of legal advice privilege and how jurisdiction can impact the assertion of it.  

The Irish courts have established that legal advice privilege will only apply to confidential communications; between a lawyer; and a client; for the purpose of giving or receiving legal advice.

Where all of these conditions are not satisfied, an assertion of legal advice privilege will usually fail, and disclosure will have to be made. 

For many practitioners legal advice privilege is not an issue that arises very often. However, when it does arise it can be of critical importance. Below we consider two questions which we are commonly asked in relation to jurisdiction and asserting legal advice privilege.

Is legal advice given by a practising solicitor working in Ireland who holds a practising certificate issued by a body other than the Law Society of Ireland covered by legal advice privilege?

In principle yes, provided the solicitor can demonstrate they are a qualified and practising and that the communications in question are made by them in that capacity and all the other conditions of legal advice privilege identified above have been met. 

However, in practice, the courts interpret this strictly. For legal advice privilege to apply, the communication must be between parties who have a lawyer-client relationship. That means the lawyer must be a practising solicitor or barrister and must also be acting in their capacity as a lawyer when giving the advice. 

In McMahon v Irish Aviation Authority [2016] IEHC 221, the court confirmed that the definition of “lawyer” for this purpose includes: 

• solicitors;
• barristers;
• salaried in-house legal advisers; and
• foreign lawyers.

The High Court in F&C Reit Property Asset Management Plc v Friends First Managed Pension Funds Ltd [2017] IEHC 383 upheld the defendants’ challenge to a claim for privilege relating to advice given by a UK-qualified solicitor to an Irish incorporated company. While the jurisdiction was not challenged in this case, the Irish Court of Appeal overturned the High Court and sustained the plaintiff’s assertions of legal advice privilege and ruled the correspondence was amenable to legal advice privilege.

If there is a dispute over privilege in a different jurisdiction to Ireland – which law will apply?

The general rule is that where there is a conflict of laws, the procedure is governed by the domestic law of the forum.

For example, if the dispute over privilege occurs in proceedings in Ireland, then the court in determining that dispute will consider the rules that apply in Ireland, even if the communication that is the subject of the assertion was made in another jurisdiction or involves parties in another jurisdiction.

This issue was dealt with in the UK case RBS Rights Issue Litigation [2017] 1 WLR 1991 (RBS). The court considered whether interviews which took place in America were entitled to protection of the American rules on legal advice privilege or whether the narrower rules of the UK, where the case was brought, would apply. The court confirmed that the English rules applied as that was the forum in which the case was being heard.

While the issue of privilege and jurisdiction has not been specifically adjudicated upon before the Irish courts, it is likely that it will adopt a similar approach to that of RBS. The general principle in respect of conflict of laws in this jurisdiction was established in the Supreme Court decision of de Gortari v Smithwick [1999] IESC 51. The case concerned a dispute over which procedural law should apply to the taking of evidence in Ireland for the use in France. It was held that the court should use its own rules of procedure rather than any foreign rule which determines the procedure.

Where a challenge to privilege is brought in another jurisdiction, involving a communication made in Ireland or involving an Irish party, and the foreign court determines that its domestic law applies, it will be necessary to take local advice on compliance with the relevant rules on legal advice privilege. As noted above, the rules around legal advice privilege in Ireland are interpreted narrowly by the courts, and the threshold to sustain an assertion of legal advice privilege is high. If the communication attracts legal advice privilege under Irish law, it is reasonable to suggest that the threshold of the foreign rules would also be met, particularly where the foreign jurisdiction is a common law one.

Key takeaway

Legal advice privilege can be a complex issue for lawyers. This is especially so for in-house counsel who may be required to perform multiple roles in various jurisdictions. In-house counsel should be conscious of the general rule that the law of the forum will apply to conflicts, and only advice given in their professional capacity as a practising qualified lawyer can qualify for legal advice privilege.

• Derek Hegarty and Laura Murdock are partners at William Fry.