knowledge | 11 December 2018 |
Privilege – The Widening Gap Between Ireland and its Nearest Neighbour
Recent years have seen a divergence between Ireland and England as regards the law of legal professional privilege. A recent decision of the English High Court highlights again the difference in approach between the two jurisdictions.
In Ireland, legal advice privilege (also sometimes described as solicitor/client privilege) arises whether or not proceedings are contemplated or in being and it is focused upon communications between a “client” and its legal advisers, or between legal advisers with a view to advising the client, such as where a barrister provides a legal opinion to a solicitor, or where an in-house lawyer gives advice or receives advice from an external legal advisor.
In order to attract legal advice privilege, the material in question must satisfy a number of criteria
- It must constitute or refer to a communication between a lawyer and a client
- The communication must arise in the course of the professional lawyer-client relationship
- The communication must be confidential in nature
- It must be for the purpose of seeking, giving or receiving legal advice.
The decision of the English Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No 5)1 marked a significant parting of the ways between Ireland and its nearest neighbour. That decision gave a narrow interpretation to the definition of “client” in a corporate setting for the purposes of legal advice privilege by restricting it to employees tasked with securing the pertinent legal advice. To date, Ireland has not followed this route.
The recent case of Glaxo Wellcome UK Ltd v Sandoz Ltd2 brings home again the difference in approach between the two jurisdictions. In that case, the plaintiff brought proceedings against the defendants (the “Sandoz group”) for passing off and sought disclosure from them. When making that disclosure, the defendants claimed legal advice privilege in respect of certain emails of the following type:
“Email from Susanne Groeschel-Jofer internal to the Sandoz group seeking information to provide to Bristows for the purposes of them giving legal advice, along with internal Sandoz group email providing the information requested.”
Bristows LLP were providing external legal advice to the second defendant. Ms Gröschel-Jofer was the in-house lawyer of the fourth defendant. The emails were between her and a drugs regulatory affairs manager of that fourth defendant who was authorised to request and receive legal advice where relevant to the performance of his job function as well as to provide information for the purposes of obtaining legal advice.
The claim to privilege was challenged by the plaintiff. In response, the defendants set out the facts outlined above and asserted that:
“A request by a legal adviser for information for the purposes of providing legal advice to the client necessarily discloses the substance of the matters on which legal advice is being sought, as does a response by the client providing information sought for that purpose…there is no need for a person to be authorised to receive legal advice in order to be able to respond to a request for information which assists a lawyer in providing legal advice.”
The court rejected the privilege claim. The decision turned on the determination of the “client”.
First, there was no evidence that the manager in question was authorised to seek legal advice from external lawyers. The court thought it more likely that Ms Gröschel-Jofer might have been given the task of obtaining legal advice and she was obtaining information for that purpose. In that event, her exercise in gathering information from the manager would not be subject to legal advice privilege. The provision of information by him would not make the communication privileged unless he was the “client” for the purposes of his obtaining legal advice. Secondly, Bristows provided legal advice to the second and not the fourth defendant. The relevant emails originated from the latter.
This case illustrates the care that must be taken in and around the issue of privilege, in particular where there are multiple defendants. While the Irish courts do not currently take a narrow view of who is the “client” and similar privilege claims as between in-house counsel and their internal client have not been rejected, the fact that an external legal adviser was retained to advise a different defendant would be an additional factor for consideration. It is possible that a waiver argument might be raised which would then bring issues of common interest privilege into play.
-  EWCA Civ 474.
-  EWHC 2747 (Ch).
This document has been prepared by McCann FitzGerald LLP 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.