Irish law recognizes two primary types of ACP/ legal professional privilege.  They are:

• legal advice privilege ("LAP"), which protects confidential communications between a lawyer and their client made for the purpose of giving or obtaining legal advice, however, the provision of legal assistance (i.e. "communication of fact leading to the drafting of legal documents and requests for the preparation of such...") will not be deemed to be legal advice [1]; and
• litigation privilege, which protects communications which take place between a lawyer or a client and a third party for the dominant purpose of use in litigation which is in progress or reasonably anticipated.

There is no explicit recognition of ACP (LAP or litigation privilege) in either the Irish Constitution, or domestic legislation.  For instance, Fennelly J. in Fyffes plc v. DCC plc [2] approved the following dictum of Ebsworth J. in Kershaw v. Whelan: [3]

"… privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.

Not applicable as ACP is recognized in this jurisdiction

ACP applies in the same way to both criminal and civil litigation.  Whilst it does not rely on a public interest balancing test, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds.  For instance, ACP will not exist in situations where communications exist in furtherance of conduct which is considered by the courts to be criminal, fraudulent or contrary to the interests of justice.  This includes communications that are themselves criminal or are for a criminal purpose.

With regard to one’s claim for litigation privilege in the criminal context, the English case of Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation [7] (“ENRC”), which concerned allegations of corruption and financial wrongdoing made by a whistle-blower in December 2010, is instructive.  In that case, ENRC argued that litigation privilege applied from when the SFO initiated its investigation in April 2011, and at the very latest, when the SFO first wrote to ENRC in respect of their criminal investigation in August 2011.  The Court of Appeal in England and Wales confirmed that litigation privilege applies to communications created during the SFO’s criminal investigation in circumstances where criminal prosecution was in reasonable contemplation.

This question has not yet been directly considered in Ireland.  It has, however, been generally assumed that employees’ have authority to act on behalf of their employer in seeking and obtaining legal advice.

The UK approach in Three River [8] tells us that only those employees who are specifically authorized to seek and obtain legal advice from the company’s external lawyers will be considered a ‘client’ for the purposes of LAP.

In that case, the Court of Appeal determined that not every employee of a corporate client will be considered as a qualifying emanation of that client for the purposes of attracting LAP.  The ‘client’ must be an employee who was authorized to seek and/or receive legal advice on behalf of the corporation.

To take an extreme example, this could mean that communications between the CEO of a company and its lawyers, setting out legal advices, may not be privileged unless the CEO has been authorized to deal with the external lawyers.  Accordingly, this decision has been widely criticized.

The Court of Appeal in ENRC added its voice to the criticism, noting that the English position is entirely out of step with the rest of the common law world and that it is unsatisfactory given the cross-border nature of multinational operations.  However, the Court said that only the UK Supreme Court could overrule the decision.

As it stands, the Irish courts have traditionally taken a more generous view when considering who the ‘client’ is in this context, than the view which has been taken in the English courts. In practice, it is better to proceed with caution, and to have deliberated and anticipated all of the elements of the Three Rivers decision when considering the applicability of LAP for a client, in the event that Three Rivers were to receive more traction in this jurisdiction.

In-house lawyers

The Court in ENRC also held that in-house lawyers have the necessary authority, by virtue of their office, to seek and obtain legal advice.

Upjohn warnings

In-house counsel are not expected to meet a higher burden than outside counsel in order to establish that ACP applies, however, in-house lawyers may only avail of ACP where there is a relevant legal context to the impugned communication, i.e. the in-house lawyer is acting in their capacity as the company’s legal advisor.

This is particularly relevant when the in-house solicitor performs both legal and non-legal (i.e. company secretarial or risk) functions.  Privilege will not generally attach to documents created by in-house counsel in a business or commercial context. In the case of F&C REIT Property Asset Management PLC v. Friends First Managed Pension Funds Limited [9],  counsel for the plaintiff sought to claim ACP over an investment management agreement.  This was refused by the High Court who confirmed the right to claim privilege is ascertained by the evidence and capacity in which in-house counsel acts.  As the in-house counsel in this case had acted as principal and participated in negotiating the contents of the agreement, and as such acted in a commercial capacity, privilege could not attach.

For this reason, in-house counsel should be advised to keep all legal advice or requests for legal advice separate from other business or commercial communications.  If legal advice is not separated in this manner, in-house counsel run the risk of losing their ability to assert privilege over those communications.

Furthermore, internal reports may not be privileged if they are the result of a fact-finding exercise with no adversarial proceedings in contemplation.  However, every matter must be considered on its own facts.  

However, in the course of an investigation by the EU Competition Commission, the rules are clearer.  The European Court of Justice ruled in Akzo Nobel Chemicals v. European Commission [10] that communications by in-house counsel are not privileged in relation to European Commission competition law cases, as in-house lawyers do not enjoy the same level of independence from the client as an external counsel.

Not applicable as Ireland is a common-law jurisdiction.

Not applicable as Ireland is a common-law jurisdiction.

Yes, however, common interest privilege (“CIP”) is not a separate category of privilege but operates to preserve LAP or litigation privilege where privileged documents are disclosed to a third party with a common interest in that legal advice or litigation.  It applies only to documents to which ACP already applies.  As a strictly legal matter, CIP is an exception to the rules on waiver.

CIP preserves privilege where a person voluntarily discloses a privileged document to a third party who has a common interest in the subject matter of the privileged document or in litigation in connection with the document.  The common interest must exist at the time of disclosure.

CIP will generally apply in the following types of relationship: insurer/ insured; receiver/ insolvent company; principal/ agent; joint venture partners; group companies; or, co-defendants.

The concept [11] of CIP was applied in this jurisdiction in Bula Limited v. Crowley [12] and articulated in Moorview Developments Ltd. v. First Active plc [13]:

"It is clear to me that common interest privilege arises in relation to documentation or materials which would be the subject of either legal professional privilege or litigation privilege in the hands of one person or body, but where the relevant materials are given to a third party who may be said to have a common interest in either the legal advice or the litigation concerned."

In Moorview, the Court set out the following test for determining whether or not CIP exists:

1. Whether the document would, in the hands of a single party, have had the benefit of privilege in the first place.
2. If not, then no question of common interest privilege could arise. 
3. If, however, the document passed the first test, but had then been released by one party to a second party then it was necessary to ask whether the release was on foot of a common interest in either the litigation or advice. 
4. If so, then the document would remain privileged, notwithstanding its release by virtue of the doctrine of common interest privilege. 
5. If not, then the release might be taken to be a waiver of any privilege, which would otherwise have attached to the document.

This test was recently applied in Sports Direct International plc v. Minor & Ors. [14]

No.  Though parties do not require a formal written agreement to recognize CIP, it is considered best practice to document the scope, duration, boundaries and parties to the CIP.  Such an agreement should also deal with how documents to which the CIP applies are exchanged and how privilege and confidentiality should be maintained.

Litigation funding is generally not permitted in Ireland.  This is due to common law rules which make it unlawful to provide financial support to litigation in which the supporter has no direct or legitimate interest (maintenance) or to provide support in return for a share in the proceeds of litigation (champerty).

Accordingly, no professional rules exist.

The issue of litigation funding is currently a particular focus for the Irish Law Reform Commission, which may ultimately result in litigation funding becoming permissible in the future. 

Further, the Irish Supreme Court has also indicated that, unless the legislature deals with litigation funding on a statutory basis, it seems minded to encourage litigation funding on the basis of future decisions.  For example, the Chief Justice, Frank Clarke in his concurring written judgment in SPV Osus Ltd v. HSBC & Ors [15], stated that:

“… there is a significant and, arguably, increasing problem with access to justice which arises in the context of the increasingly complex world in which we live, which in turn has increased the complexity of much litigation not least in the commercial field… I would wish to emphasise that I remain strongly of the view that it is necessary that some measures be taken to attempt to address this problem… That is a problem to which solutions require to be found. It does seem to me that this is an issue to which the legislature should give urgent consideration” [16].

Akin to litigation funding, shareholders’ and creditors’ interests in litigation have been considered by the Irish Court of Appeal as “genuine commercial interests”.  Other exceptions to the rules against litigation funding lack clear definition in the case law.

Therefore, the two types of third party litigation funding currently allowed in Ireland are, as follows:

1. Funding by a third party with a legitimate interest in the proceedings, such as a creditor or a shareholder of a company that is a party to the litigation in question, for example, see Thema International Fund v. HSBC International Trust Services (Ireland) Ltd [17].  These funders risk being made personally liable for the costs of the litigation if the party that they are funding ultimately loses the case in question.

2. Funding litigation on foot of an “after the event” insurance policy.  This was approved in the case of Greenclean Waste Management v. Leahy [18].  These policies are generally taken out by a plaintiff after a dispute has arisen and are designed to provide protection to that plaintiff if they are unsuccessful in the litigation in question.  Typically, the insurance premium is only paid if the plaintiff is successful.  In certain circumstances, these policies can also be used in defence of an application for security of costs.

As yet, the privilege position for third party funders is untested in the Irish courts (since there is currently no practice of litigation funding).

The question of privilege as regards communications with third-party litigation funders may be specifically addressed in any future legislation on this issue.   

In respect of the types of third-party litigation funding currently allowed in Ireland, it seems to us that the normal rules of ACP would most likely apply, however, the particular decisions on these matters do not specifically address this point.

Yes.  As stated above, the ‘Crime-Fraud Exception’ is recognized in Ireland.  It provides that any communication between a lawyer and their client in furtherance of criminal or fraudulent conduct loses any potential claim for ACP.

In Fyffes plc. v. DCC [18] plc Fennelly J stated as follows:

“The law, therefore, attaches significant value and accords a high degree of protection to the principle of legal professional privilege. It can, of course, be lost if it is clear that it is being used as a cloak to cover fraud. It may also be overridden by express statutory provision.”

In Murphy v. Kirwan [19], Finlay C.J. recognized the Crime-Fraud Exemption as an important exception to ACP:

“Professional privilege cannot and must not be applied so as to be injurious to the interest of justice and to those in the administration of justice where persons have been guilty of moral turpitude or of dishonest conduct…”

Murphy v. Kirwan also set out the standard of proof that a party had to meet in order to defeat a claim for ACP.  A party seeking to defeat a claim to ACP by asserting malicious prosecution or abuse of the processes of the Court was required to:

1. establish, though not necessarily as a proof in itself, that the claim as brought by the other party had failed in its entirety or that it was bound to do so;

2. establish, not necessarily as a proof but possibly as a necessary precondition, that the failure of the other party’s claim had not been due to the resolution by the Court trial of a conflict or evidence with regard to primary facts, or due to a special legal defense, such as might arise under the Statute of Frauds;

3. support the allegations to such an extent that they were, in the view of the court, viable and plausible, although not to prove the allegations as a matter of probability or in accordance with the onus of proof necessary for the total hearing of the action.

There is no rule in Ireland that refers explicitly to the work product doctrine, but there are certain analogous provisions relating to litigation privilege more generally.

As noted above, litigation privilege protects communications, which take place between a lawyer or a client and a third party for the dominant purpose of use in litigation which is in progress or reasonably anticipated.  In the sense that documents prepared for anticipated litigation are protected from discovery by privilege, this bears similarities to the US work product doctrine.

Litigation privilege in Ireland applies a ‘dominant purpose’ test to material prepared in contemplation of litigation.  This test requires that material over which privilege is being claimed is prepared with the dominant purpose of protection from reasonably contemplated litigation.

The case of Gallagher v. Stanley [21] tells us that this test is construed strictly; it is not enough that one of the purposes of preparing the work product was the apprehension of litigation, but that purpose must also constitute a primary motivating factor for the production of the work product.

However, this is not to say that contemplated litigation must be the only purpose for the production of work product.  It may be the case that a document is produced for more than one purpose.  For example, a report in the aftermath of an accident may be prepared for both insurance purposes and to prepare for the apprehended litigation.

Furthermore, in Ryanair v. Channel 4, the High Court, whilst applying the ‘dominant purpose’ test, accepted that a claim of litigation privilege arose over documentation and materials used in the making of a television program. [22] The Court noted that it was well established that in order to claim litigation privilege, litigation must be “apprehended or threatened” [23].  The Court decided that, because the program was many months in the making, and given the particular content of the program, it was reasonable that Channel 4 must, at least, have “apprehended” litigation arising.  The court also noted that Ryanair had brought defamation proceedings in the Netherlands regarding a program with similar content.  Therefore, the Court accepted that documentation which came into existence as part of the development of this program would be entitled to the protection of litigation privilege.  This test will depend on the particular facts of the case.

No.  Privileged communication must be between parties who have a lawyer-client relationship.  Legal advice imparted by solicitor or counsel will satisfy lawyer-client relationship, however, parties acting in an advisory capacity such as accountants will not satisfy these requirements.

The Court of Appeal in England and Wales confirmed this in R (on the application of Prudential PLC) v. Special Commissioner of Income Tax [24], where it unanimously confirmed that legal professional privilege only applies to qualified lawyers and so cannot be asserted by an accountant who provides advice of tax law.

Giving the leading judgment, Lloyd LJ said that the Court was bound to hold that “legal professional privilege does not apply, at common law, in relation to any professional other than a qualified lawyer: a solicitor or barrister, or an appropriately qualified foreign lawyer”.  He also considered that even if the Court were not so bound:

“I would conclude that it is not open to the court to hold that LPP applies outside the legal profession, except as a result of relevant statutory provisions.  It is of the essence of the rule that it should be clear and certain in its application, since it is not the subject of any ad hoc balancing exercise but is, to all intents and purposes, absolute.  As applied to members of the legal professions, acting as such, it is sufficiently clear and certain.  If it were to apply to members of other professions who give advice on points of law in the course of their professional activity, serious questions would arise as to its scope and application. To which accountants should it apply, given that "accountant" does not by itself denote membership of any particular professional body, or the obligation to comply with any, or any particular, professional obligations? To which other professional advisers would it apply? To what areas of the law would it apply as regards the advice of any adviser who is not a lawyer as such? These questions are serious and important, and would require a clear answer in order that the scope and application of the extended LPP should be known and understood."

In 2013, this decision was upheld by majority (5:2) on appeal by the UK Supreme Court.[25]  They held that ACP should not be extended to communications given in connection with advice given by individuals other than lawyers, even where that advice is legal advice.

The right to confidentiality in mediation comes under “without prejudice” privilege, which ensures that communications between opponents made in a bona fide attempt to settle or resolve a dispute or part thereof are protected from disclosure.  The rule is derived from public policy (encouraging settlement of disputes) and private law (there is an express or implied agreement between the parties that the negotiations are confidential).

The phrase “without prejudice” when used in correspondence, means that the correspondence is without prejudice to the writer’s position if the terms set out are not accepted by the party to whom the correspondence is addressed.  It precludes the production of that correspondence as evidence of any information thus imparted.

The device only attaches where the words are applied in the course of bona-fide negotiations for the settlement of disputes.  If agreement is reached at the conclusion of negotiations, the privilege ceases to attach to the correspondence and the correspondence or any oral statements arising therefrom may be adduced in proof of the agreement.

The without prejudice rule was established in English cases such as Aird v. Prime Meridian Ltd.[26], Reed Executive plc v. Reed Business Information Ltd. [27] and Brown v. Rice & Patel [28].

No distinction is made between party-to-party negotiations and negotiations conducted within a mediation.  While the issue of privilege in the context of mediation has not yet come before the courts in this jurisdiction, the Irish courts have followed the English courts in recognising the concept of “without prejudice” privilege.

For a claim of without prejudice privilege to succeed the party claiming it must establish that the communication in question was made:

1. 1. 1. in a bona fide attempt to settle a dispute between the parties, and
      2. with the intention that if the negotiations failed, the communication could not be disclosed without the consent of the parties.

The use of the words “without prejudice” are not sufficient in themselves to invoke privilege.  The court will analyse the nature of the document to see whether it is in fact a privileged document prepared for the mediation.

In Aird v. Prime Meridian [29], May LJ stated that privilege “would not apply to documents obviously produced for other purposes which were needed for and produced at the mediation”.

The court will also look at whether an exception to the without prejudice rule applies in the circumstances in which the document is sought to be used. There are a number of established exceptions to without prejudice privilege, for example:

1. where there is a dispute as to the existence of agreement;

2. where it is claimed that the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence;

3. where there is a claim of estoppel, based on representations made in the mediation and relied upon by the other party;

4. where the exclusion of the evidence of what was said in the negotiations would act as a cloak for perjury, blackmail or other “unambiguous impropriety” (Unilever Plc v. Procter & Gamble Co [30]);

5. where there is a Calderbank [31] letter i.e. “without prejudice save as to costs”.

Settlement negotiation privilege is recognized in the form of “without prejudice” privilege (see above in respect of mediation privilege).  In the circumstances, a concession or statement made in the course of settlement negotiations or even the fact that an offer of compromise was made, cannot be disclosed, if made on a “without prejudice” basis.

If communications are labeled “without prejudice” but do not relate to a bona fide attempt to settle a dispute between the parties, such communications will not necessarily be treated by the courts as privileged and may be admitted as evidence in court.

Non-prosecution agreements and deferred prosecution agreements do not exist in Ireland, however, settlements are often the customary route for many regulatory bodies. 

The Central Bank of Ireland, for example, commonly uses settlements to resolve investigations and enforcement actions brought by them, under the Administrative Sanctions Procedure under the Central Bank Act 1942, as amended.  The Central Bank Act provides that if the Central Bank suspects on reasonable grounds that a regulated entity/individual is committing or has committed a prescribed contravention, it may enter into a settlement agreement with the regulated entity/individual to resolve the matter.  The settlement agreement must be in writing and is binding on the Central Bank and the regulated entity/individual.  

A regulated entity/individual may receive a Settlement Letter from the Central Bank.  The settlement letter is issued on a “without prejudice” basis.