Yes, ‘Legal Advice Privilege’ is recognized in Northern Ireland. Protection is afforded to confidential communications between a solicitor, barrister, trainee or paralegal and their client that came into existence for the purposes of giving or obtaining legal advice. 

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Legal Advice Privilege is asserted in the same way in both civil and criminal proceedings in Northern Ireland. 

Who is considered a ‘client’ within a corporation for the purposes of legal advice privilege is outlined in the Court of Appeal decision in Three Rivers District Council v Bank of England [2003] (Three Rivers No 5) as confirmed by the Court of Appeal in SFO v ENRC [2018]. 

The ‘client’ is limited to those individuals who are tasked with seeking and obtaining legal advice on behalf of the organization. 

Three Rivers has placed practical limitations on the scope and availability of legal advice privilege where the client instructing the lawyer is a corporate entity and the advice sought is non contentious. The client, for the purposes of engaging in such corporate communications, is not the corporate entity itself but a narrower group of individuals employed by that entity who are expressly charged with seeking and receiving legal advice on its behalf. 

This means it is only those who have been charged with seeking and receiving the legal advice who can engage in protected communications with the corporate entity’s lawyers, be they internal or external. Others within the same entity who make any sort of communication in relation to the legal advice sought, whether internally or to the lawyers themselves, run the risk of engaging in communications which may be disclosable in subsequent litigation. 

The Court of Appeal’s narrow definition of the ‘client’ remains good authority in Northern Ireland. 
 

The concept of in-house lawyer privilege is recognized in Northern Ireland, privilege is granted to an internal communication if it was (1) made by the lawyer when acting in a legal capacity (2) created for the purposes of obtaining or giving legal advice or made with a view to litigation. 

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Yes, common interest privilege may arise in respect of communications between parties sharing the same interest, even in circumstances where there is no joint privilege. 

It allows a party voluntarily to disclose privileged material to a third party. Common interest privilege operates to ensure that, where the client party has voluntarily disclosed an otherwise privileged document to the third party, provided a common interest exists between the client party and the third party at the time of the disclosure, privilege in respect of that document will not be waived or lost, and will be held by both parties. 

Where common interest privilege arises, the privileged document will also attract privilege in the hands of the third party. However it does not entitle the third party to obtain general disclosure from the client of otherwise privileged documents. 
 

The concept of common interest privilege was first recognized by the Court of Appeal in Buttes Gas per Lord Denning MR,

‘There is a privilege which may be called a "common interest" privilege. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant has other persons standing alongside him - who have the self-same interest as he - and who have consulted lawyers on the self-same points as he - but these others have not been made parties to the action. In all such cases I think the courts should, for the purposes of discovery, treat all the persons interested as if they were partners in a single firm or departments in a single company. Each can avail himself of the privilege in aid of litigation.’

Where in Buttes Gas Lord Denning described common interest privilege as a privilege ‘in aid of anticipated litigation’ it has since been established that common interest privilege is of equal application beyond the realm of litigation, to cases where it is only legal advice in question. 
 

Common Interest agreements have become more widely used as a measure to allow the sharing of material while protecting parties form losing privilege. 

While common interest privilege exists without these formal agreements and the agreements do not in themselves provide a guarantee, they are considered to help reduce the risk of privilege being waived or lost. 
 

The vast majority of large commercial disputes are privately funded by the parties themselves. These cases are likely to be outside the scope of the Northern Ireland legal aid scheme. 

In September 2017, the Lord Chief Justice of Northern Ireland’s office published its Civil Justice Report which reviewed the rules and procedures of civil litigation in Northern Ireland. In the report’s discussion on third party funding the report stated,

‘There appears to be no apparent restriction on third party funding in Northern Ireland…‘Funding represents a potential alternative to legal aid and…could facilitate access to justice for members of the public.’ 

The position has not however been codified, and the law of maintenance and champerty apply, and which in certain circumstances could lead to a challenge if funding becomes an issue between the parties to litigation. 
 

When considering litigation funders, the parties must decide whether to disclose privileged information and if so, how to avoid waiver. This is the client’s decision. Voluntary disclosure of privileged information to third parties generally results in waiver of the privilege, potentially making the information discoverable. This issue has not as yet been substantively addressed by the Courts in Northern Ireland. There is however English authority on the matter which may be persuasive to the Courts in Northern Ireland.  

Yes, the principal situation where communications may not be protected by privilege is the crime-fraud exception, which provides that there is no privilege in documents or communications that are themselves part of a crime or fraud, or that seek or give legal advice about how to facilitate the commission of a crime or a fraud. This exception applies to legal advice and litigation privilege and is recognized in Northern Ireland.  

R v Cox and Railton [1884] 14 QBD 153 established the crime-fraud exception. 

The crime-fraud exception applies equally to legal advice privilege and litigation privilege (Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCA Civ 286). 
 

Yes, Litigation Privilege applies in Northern Ireland. Litigation privilege is wider than legal advice privilege on the basis that from the time when litigation is in ‘prospect’ or ‘pending’ all communications between a solicitor, or his or her agent, and a third party will be protected. These communications will only be protected if they came into existence for the sole or dominant purposes of giving or obtaining advice relating to the litigation or collecting evidence for use in the litigation. 

‘Litigation’ means adversarial proceedings and the chance of litigation need not be greater than 50% but must be more than a mere possibility. Litigation can be subject to contingencies so long as there is sufficient prospect of those contingencies occurring. Conducting litigation does however include avoiding or settling litigation that is in reasonable prospect.
 

The protection that Litigation Privilege offers is that documents that have come into existence for the purposes of litigation will be privileged from disclosure, provided that they are for the purpose of obtaining evidence or receiving legal advice in connection with the litigation. 

Litigation Privilege is a very important means to protect the preparation of work for litigation, particularly in cases where expert reports have been prepared and such reports are often vital evidence for the case. 
 

No, privilege in Northern Ireland is only extended to Lawyer-Client communications. In a Supreme Court decision, Lord Neuberger said,

‘Privilege should not be extended to communications in connection with advice given by professional people other than lawyers….even where that advice is legal advice which the professional person is qualified to give’. 
The President of the Law Society of Northern Ireland at the time, Michael Robinson, welcomed the ruling stating, 

‘Legal Professional Privilege protects discussions and conversations between a solicitor and his or her clients from being disclosed without the permission of the client…. The ruling of the Supreme Court is simple. If you want advice on legal, business or personal matters and you want to ensure that under the rule of law your conversations remains confidential and protected then you should speak to a solicitor of your choice. You will not be legally protected elsewhere.’ 
 

Yes, since mediations and other types of alternative dispute resolutions involve communications genuinely aimed at settling disputes, then they are generally protected under common law by without prejudice privilege. 

In Farm Assist v Secretary of State for the Environment [2009] Ramsey J outlined the position of confidentiality and privilege in mediations; 

‘The position as to confidentiality, privilege and without prejudice in relation to mediation is generally as follows:

(1) Confidentiality: The proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.

(2) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege. 

(3) Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.’

However, there are a number of exceptions to the without prejudice rule relevant to mediation (Unilever v Proctor and Gamble [2001]). 

While the parties can rely on without prejudice privilege to protect themselves against future disclosure, most parties prefer to try to give certainty to the status of their discussions and correspondence by specifically agreeing that the process is confidential. As such confidentiality clauses are usually included in the mediation agreement.
 

Yes, this is known as Without Prejudice Privilege. This applies to communications made between parties, or their solicitor or agent, in a genuine attempt to resolve the dispute. 

Communications made between co-defendants for the purposes of exploring a compromise, or negotiating a settlement are also protected.
 
For a document to be covered by without prejudice, it must form part of a genuine attempt to resolve a dispute. There needs to be a genuine dispute to be resolved and a genuine attempt to resolve it.