Litigation Privilege: When Is the Shield Lowered?

In the space of two years, the Cayman Islands Court of Appeal (CICA) and Irish High Court have reached opposite conclusions on an interesting legal issue in relation to the ability to assert litigation privilege over certain evidence.

The CICA decided that there is no privilege in a finalised witness statement that has been served on the other party. Subsequently, although it considered the CICA decision, the Irish High Court came to a different conclusion and held that witness statements do not lose their privileged status at the time of service.  This article looks at the policy rationale behind both decisions and analyses the current state of the law in respect of this critically-important area of legal practice.

What is the scope of litigation privilege?

Litigation privilege is an important concept which allows parties to prepare for litigation while being open with their legal counsel.  The parameters of the protections afforded by litigation privilege are sometimes difficult to determine, as competing policy considerations are often at play.

On one hand, as Lord Rodger of Earlsferry emphasised in Three Rivers DC v Bank of England (No 6), it is crucial that each party is free to prepare its case as fully as possible without the risk that an opponent will be able to recover the material generated by is preparations. However, on the other, the general public has an interest in access to justice with the benefit of full disclosure and transparency.

 

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Litigation Privilege: When Is the Shield Lowered?

 

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