Privilege and Discovery

Effect of Privilege

The effect of privilege is that a person may decline to answer certain questions as a witness or produce documents in discovery, even if they are relevant or would be otherwise admissible.  Most examples of privilege operate absolutely. They are not a matter of discretion on the part of the judge.

Privilege must be claimed.  Neither the opposing party nor the judge is obliged to claim privilege on behalf of a party or advise him accordingly.  This does not apply in respect of certain rights of the accused, including in particular the accused right to silence, where constitutional considerations may require that the judge assists the unrepresented accused.

Privileged evidence may be proved, otherwise than through a privileged medium.  For example, another witness may prove the same subject matter. Earlier approaches which allowed the admission of privileged evidence which had accidentally fallen into the opponent\’s hands have been abandoned.  The courts in modern times have determined that it would be undesirable to allow otherwise admissible evidence to be admitted, where it falls into the opponent\’s hands by chance or inappropriate means.

Privilege may be waived by the person entitled to claim it.  This must be done,   express or in some cases, impliedly.  Generally, the person who makes the relevant statement is the only person entitled to waive privilege.

Privilege and Discovery

Privilege upholds certain interests which the law recognises as justifying immunity from disclosure and testimony under compulsion.  In a small number of instances, the law allows for privilege from both pre-trial disclosure and from questions in the trial.  The categories, however, are very limited and are considerably narrower than commonly understood.

The general principle is that outside of the narrowly defined areas of privilege, discovery must be made and given and questions must be answered on trial.  This is notwithstanding that they t may constitute a breach of confidence, that the law might otherwise protect.

The most common forms of privilege are

• public interest privilege;
• informer privilege;
• legal advice privilege;
• parliamentary privilege;
• the privilege against self-incrimination;
• sacerdotal privilege (unique to Ireland); and
• without prejudice privilege.

A number of other statutory privileges exist.

Discovery and Production

Documents must be discovered, notwithstanding that they are privileged.  Privilege applies to the production of the document.  Accordingly, in an affidavit of discovery, it is necessary to identify relevant documents, but claim privilege for them against inspection.

The affidavit of discovery should set out the general nature of the privilege claimed.  A general claim for privilege is not sufficient.  The purpose of listing the documents is to enable the opponent to consider whether a challenge to the privilege claim might be made.  The issue of privilege may be contested.  An application may be made to the court to determine the issue.

The basis of privilege should be set out in the affidavit itself. The degree of information required in relation to the document should not be such that it would breach the privilege claimed.

The privilege may also be claimed in respect of replies to interrogatories.

Challenges

Where a claim of discovery is challenged, the party claiming it,  issues a notice to produce requesting production of the documents.  A motion is then issued for challenging the failure to produce and the issue of privilege is adjudicated on. The motion is made to the Master in the first instance.

Where a substantive challenge such as privilege has arisen; it is referred to the Judge.  The onus is on the party who seeks to assert the privilege.

The court may inspect the document in order to adjudicate on the merits of the claim. The circumstances in which the document is created may be examined..

If privilege is allowed, it will generally apply to the whole document.  The court will not redact a document, as this would involve it in determining matters in issue, prior to the trial.

The courts may be sensitive to protect legitimate claims of confidentiality, by editing and redacting in appropriate cases.

A party holding privilege may waive it. For example, the solicitor in a solicitor-client relationship, may not waive privilege without the authority of his client.

Public Interest I

Public interest disclosure is asserted by the State on the basis that disclosure or production of certain documents would be prejudicial to the public interest. Public interest privilege can, in principle, be waived.  This may be done expressly or in highly exceptional circumstances, impliedly.  Parties concerned will need to have the requisite authority to waive the same.

Formerly, once public interest was asserted, the Courts looked at the matter no further. However, famously, the courts have held that that constitutional fair procedure requires that the Courts examine the matter to assess the claim.  It will not take the State certificate as final.

The Court reasoned that the administration of justice is a matter for the Court.  Where a conflict arises between the judicial power and the executive, it is for the judicial power to determine which interests prevail.

Accordingly, the Courts are no longer willing to accept that certain categories of documents prepared in the course of governmental activities are automatically privileged.

The Courts will have regard to the security of the State, efficient discharge of functions and other governmental interest and won\’t balance it against the interest of the parties in disclosure.

The Court need not examine all documents.  It may decide that certain categories or types of documents enjoy the privilege without being examined.

Public Interest II

Public interest in the administration of justice generally requires disclosure.  However, Court will consider the benefit of the disclosure in the circumstances to the plaintiff in considering whether this justifies prevailing over the State\’s interest.  Accordingly, if it is peripheral, unless relevant the Court is more likely to reject disclosure.

The significance of the plaintiff\’s claim will be weighed.  If it involves the fundamental freedoms and constitutional rights, the courts will be more will give greater weight to this interest.

Documents may be claimed to be privileged in public interest because of their confidentiality and secrecy.  More generally, they may be claimed exempt from discovery on the basis that they are relevant to the efficiency of administration of the State.  It follows from the notion that the post ability of disclosure would inhibit free discussion and communication between public officials.

The Constitution expressly provides following amendment of the confidentiality of Cabinet discussions where it may be overridden where the High Court decides that it is in the interest of justice in the particulars case so to do.   Similarly, it may be overridden, where it considers it to be in the public interest in the application of a tribunal of inquiry.

The public interest in the criminal justice system may justify privilege.  Courts will be reluctant to allow an investigation into communications between the police, the Gardai, prosecuting authorities etc.

Security of the State is often relied on as a valid, as a ground for resisting discovery.  This may arise from issues of international relations, security and policing.

Confidentiality

Confidentiality is a broader concept than privilege. The courts will look at claims of confidentiality and consider whether it is outweighed by public interest based on fundamental fair procedures.

The Supreme Court has indicated that one must look firstly at the precise scope and nature of the claim to confidentiality and determine whether the material is confidential.  The determination of privilege is made by weighing of the public interest in fair procedures against the interest in confidentiality.

Although confidentiality as such, is not sufficient for privilege, the courts may make appropriate orders in the context of confidential information, which is not privileged,  so as to minimise the effects of the breach of confidentiality.

Protection of  Confidentiality

In some cases, the courts have allowed issues of confidentiality might be dealt with by production of the documents to the other party’s lawyers only.  They would give an undertaking to the court not to reveal the content except with special leave of the court and ensure that the commercial and financial interest of the party making disclosure is protected.

The Irish courts have rolled back on this position and have highlighted the practical difficulties where information is known to counsel and solicitors but not to clients. The position gets anomalous where the parties are unrepresented.