Whilst the recent judgment of the Court of Appeal in Aer Lingus plc v The Minister for Finance and others ([2018] IECA 222) did not arise in an employment law context, the judgment is useful in its consideration of whether litigation privilege can be claimed over documents from an earlier set of proceedings, in a later set of proceedings.

Litigation privilege is designed to protect from disclosure of documents or records which were created with the dominant purpose of communications by a litigant with his or her professional lawyers or advisors. If such privilege applies, it prevents the opposite party from having sight of such documentation prior to the trial. Litigation privilege applies to all litigants, represented or self-represented, and creates a zone of privacy around preparations for litigation and prevents the premature disclosure of documents produced for the purpose of the litigation from disclosure prior to the trial.  Litigation privilege is designed to ensure the efficacy of the litigation process by promotion of the professional solicitor-client relationship and permits the preparation for trial in private, in the absence of adversarial interference in the absence of fear of premature disclosure.

Aer Lingus plc v The Minister for Finance & Others

In the Aer Lingus plc proceedings, the State defendants refused to provide discovery to the Plaintiff of documents relating to its dealings with the EU Commission in the course of litigation initiated by the Commission. It concerned whether an air travel tax established by the 2008 Budget amounted to state aid. The State defendants argued that litigation privilege applied to such documentation and once litigation privilege applied, it survived the conclusion of the litigation.

The Court of Appeal noted the purpose of litigation privilege was to prevent the premature disclosure of a litigant’s case to his or her opponent, such that such privilege was temporal in scope. In that respect, litigation privilege differs from legal professional privilege which is generally permanent and inviolable as compared to litigation privilege, which the Court of Appeal concluded, generally ended with the conclusion of the litigation.

In considering whether litigation privilege applied to the documents sought by the Plaintiff, Hogan J. concluded that no such privilege applied as the proceedings were not “closely related litigation” as the parties were entirely different and there was no direct linkage between the earlier Commission proceedings - which were concluded-and the later litigation. Therefore the zone of privacy which the State required to defend the earlier proceedings did not apply as those proceedings had ended. On that basis litigation privilege did not apply and the Plaintiff was entitled to the documents sought.

This is an important judgment considering when litigation privilege ends. It is only where the later proceedings are linked - such as involving the same parties or the proceedings could affect the outcome of the earlier proceedings - that litigation privilege can lawfully apply to documentation between clients and their professional advisors created in earlier proceedings.

Richard Carron v Fastcom Broadband Limited T/A Fastcom

It is also interesting to note that a significant EAT determination considering whether communications between an employer and its non-legal advisors attracted legal or litigation privilege was overturned recently by the Circuit Court. It is common case that employers will engage HR consultants to advise them on internal matters, such as disciplinary or grievance processes. In Richard Carron v Fastcom Broadband Limited (UD 1515/2013) the EAT was asked to determine, as a preliminary issue, whether communications between the Respondent and its non-lawyer advisors (in this case HR advisors) were privileged legal advices. This issue arose when, in response to a subject access request made by the employee pursuant to s.4 of the Data Protection Acts 1988 – 2003, the respondent refused to furnish copies of advices it had received regarding the claimant and his employment from a reputable HR consultancy service provider. The respondent claimed that the advice received from its HR advisors was privileged legal advice and therefore it was not obliged to provide same in response to the Data Request.

The EAT determined that advice provided by a non-lawyer prior to the date of the claimant's claim was filed with the Workplace Relations Commission were not captured by legal professional privilege as the advice was not furnished by a lawyer. In adopting this approach, the EAT determination is in conformity with the decision of the UKEAT  in New Victoria Hospital v Ryan [(1993) I.R.L.R. 202] where legal privilege was not found to attach to documents, including advice furnished by a HR consultant, created in the course of a disciplinary procedure.

On the other hand the tribunal considered whether the advice/documentation received was covered by litigation privilege. It found that litigation privilege attached to communications between the respondent and its advisors from the date it was notified of the complaint of unfair dismissal being made to the WRC.

The EAT determined that litigation privilege does not apply to HR Consultancy advice until after a tribunal claim has been lodged was much publicised. Recently the Circuit Court has overturned the EAT decision entirely, declaring that all advice given on the redundancy and grievance processes in question attracted litigation privilege from the outset, and not only from the date the claim is lodged.