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Beware of Losing Privilege Over Legal Advice

The High Court has recently dealt with a case where inspection of documents containing legal advice was sought. The advice was referred to in a replying affidavit sworn on behalf of the respondent.[1] Although privileged communications are normally exempt from production, the court ultimately decided that inspection of the documentation involved should be ordered. This was based on how it was deployed in the replying affidavit and even though no specific document was actually referenced in the replying affidavit. The decision highlights the risks associated with referring to privileged communications, like legal advice, in affidavit evidence. It also makes clear that even if no specific document is referenced, if documentation is identifiable, inspection can still be ordered.

Background

Mr Elsharkawy brought judicial review proceedings against the Minister for Transport arising from a change in the law relating to the number of penalty points required before mandatory driving disqualification applied. The case related to the treatment of drivers who had already accumulated points prior to the introduction of the amended threshold and how the State understood and implemented the legislation. The respondent, the Minister for Transport, issued a press release in 2021 setting out that it was revising its approach to the interpretation of the legislation. This revised approach led to the disqualification of the applicant, Mr Elsharkawy, which prompted the judicial review. The decision in this case arose out of a motion brought by Mr Elsharkawy seeking inspection of a series of documents that contain legal advice received by the Minister referred to in a replying affidavit delivered as part of the judicial review proceedings. The conclusion of the advice received was set out in the relevant affidavit, although it was expressly stated that the advice was confidential and privileged.

Legal issues and decision

The court accepted that the documents on first impression attracted a valid claim of privilege. Therefore, the main question it had to determine was whether that privilege had been waived on the basis that the Minister had deployed the legal advice for the purpose of defending the proceedings. Another, purely procedural, question which had to be decided was whether Order 31 Rule 15 of the Rules of the Superior Courts (RSC) applied at all – that rule entitles a party to seek inspection of any document referred to in a pleading or affidavit by an opposing party.

In resisting the motion, the Minister relied on a number of arguments. The principal one was that Mr Elsharkawy had, in his statement of grounds, first referred to legal advice received by the Minister so that, when replying to it, the Minister had little option but to make reference to it. Second, insofar as it did note the change in approach to the interpretation of the legislation, it did so for the purpose of providing context. The Minister also disputed that the advice had been ‘deployed’ in the defence of the proceedings. Relatedly, the Minister maintained that reliance was not being placed on the legal advice in the defence of the proceedings.

Having considered various authorities, the court recognised that privilege was absolute in that there was no judicial discretion to displace it on the grounds of fairness. In addition, the court noted that privilege could be waived expressly or impliedly. However, waiver was not to be lightly inferred and did not arise merely because it was referenced. Instead, it may arise when the documents are deployed by partially disclosing them or summarising their effect. The test was whether the contents and effect of the document are being relied upon so as to gain an advantage. Overall, here the court was satisfied that the Minister had engaged in conduct that amounted to a waiver of privilege. It rejected the Minister’s arguments. In particular, it found that before the proceedings had commenced, the Minister had sought to justify its position by reference to the legal advice. More importantly, the reference to the legal advice in the affidavit went further than just repeating the information already available, including press releases published by the Minister. Given that the Minister had chosen to disclose in part the content and effects of the legal advice, it followed that there had been deployment for the Minister’s litigious advantage.

On the procedural question, the Minister maintained that no specific document was identified or sought and that inspection should therefore not be ordered. However, the court was “inclined to take a pragmatic view”. Without any assertion by the Minister that the advice was oral, the court said it was sensible to infer that the advice was reduced to writing so documents setting it out were available. Therefore, it was satisfied that the reference to legal advice could be treated as a reference to a document for the purpose of RSC Order 31, Rule 15.

Ultimately, the court was satisfied to make the order sought in accordance with the relevant rule and directed the Minister to allow Mr Elsharkawy to inspect all documents comprising legal advice received by the Minister.

Conclusion

The decision serves as a useful reminder of a number of principles and highlights that caution should be exercised when referring to legal advice in pleadings or affidavits, especially. Privilege can be waived even unintentionally or inadvertently. In the context of legal advice, privilege may be said to have been waived where the relevant statement goes beyond merely referencing the fact it was obtained. Although it will be a question of degree, a party should be careful to avoid disclosing the contents and effect of legal advice, even in summary form. It should also be remembered that an Order 31, Rule 15 RSC application for inspection may be allowed even without reference to specific documents where the documentation may be identifiable.

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The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Elsharkawy v Minister for Transport [2023] IEHC 672.



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