The High Court has recently addressed a case where privilege was claimed over documents involving communications from a retired solicitor. The key question was whether, in circumstances where the solicitor involved did not have a practising certificate, any legal advice he provided could have been privileged. Our Commercial Disputes team considers the decision.
The High Court recently looked into a claim of privilege over certain documents.[1] These documents were said to contain legal advice. As a result, it was argued that they were protected by privilege. However, the Court had to consider an unusual aspect in this case. Here, the communications in question involved a retired solicitor who, at the relevant time, did not have a practising certificate.
The party claiming privilege argued that they believed the retired solicitor had a practising certificate. However, Mr Justice Twomey was not satisfied the relevant case law confirmed that privilege applied on that basis. In stressing the significance of a practising certificate for the purpose of privilege, he ultimately concluded that legal advice could not legitimately have been provided by the retired solicitor. Therefore, privilege did not apply to the documentation involved.
Background
The case related to a dispute regarding the purchase of lands and the discovery made by one of the defendants, Mr Magnier. Mr Magnier objected to the discovery of 10 documents. He argued that they contained legal advice from his adviser, Mr McCague, a retired managing partner of Arthur Cox. However, Mr McCague was not described as his solicitor. The relevant communications had issued from Mr McCague’s personal e-mail account. At the relevant time, although Mr McCague was on the roll of solicitors, he did not hold a practising certificate. In support of the claim of privilege, it was submitted by counsel on Mr Magnier’s behalf that Mr Magnier believed Mr McCague held a practising certificate. Affidavits to the effect that Mr Magnier believed that Mr McCague had a practising certificate were also sworn by Mr Magnier’s solicitor and accountant. However, Mr Mangier did not provide an affidavit confirming his own belief. As a result, the Court had to consider whether to uphold privilege over the documentation in question.
Decision
The Court began by noting an important point. Claiming privilege over advice given to Mr Magnier by a retired solicitor had significant implications. It effectively involved making a serious claim against Mr McCague. Specifically, under Section 55 of the Solicitors Act 1954, it is a criminal offence for someone without a practising certificate to act as a solicitor. The Court observed that Mr Magnier “wanted the benefit of claiming that, in effect, a criminal offence may have been committed by Mr McCague, but without the burden or logical consequences for Mr McCague of having such an allegation made against him, based on evidence.” Ultimately, however, the Court recognised that Mr Magnier’s aim was to prevent the disclosure of the documents involved, rather than implicate his own adviser.
Despite the steps Mr Magnier took to justify the claim of privilege, the Court was not comfortable with his own failure to swear an affidavit regarding his own understanding. Mr Justice Twomey specifically observed that “Mr Magnier avoided providing evidence that Mr McCague gave legal advice”, noting that:
“the more attempts Mr Magnier made to keep the documents secret, by getting third parties to say that they believed that he believed, or that they believed, that Mr McCague had a practising certificate, the more glaring was Mr Magnier’s failure to simply swear an affidavit that he believed that Mr McCague held a practising certificate.”
The Court considered case law with regard to the argument as to whether ‘legal advice’ given by a retired solicitor without a practising certificate is privileged.
In particular, Mr Magnier relied on an old English case[2] to support his argument. He claimed this case showed that if the client believed the solicitor had a practising certificate, the communications were protected by privilege. However, the Court did not consider itself bound by that decision, which was from another jurisdiction and from 175 years ago. The key difference was that the solicitor in that case did have a practising certificate when the engagement began. However, the certificate expired and was not renewed while the work was ongoing. This was not the situation with Mr McCague. Since Mr McCague was a retired solicitor, the Court here concluded that the case relied on did not apply to Mr McCague’s situation.
The Court also referred to Lyons v. O’Mahoney[3]. In this decision, the High Court stated that for privilege to arise there must be a professional legal relationship. Here, Mr Justice Twomey noted that the privilege claimed by Mr Magnier did not arise during the course of a professional legal relationship. Reference was also made to Hussain v Commissioner of An Garda Siochana[4] which illustrated how privilege may not be available where a lawyer does not comply with a code of conduct. In that case, it was noted that it was difficult to see how a lawyer acting “outside the ethical parameters of the profession” “could legitimately claim to be representing clients in a professional capacity”. As a consequence, Mr Justice Twomey noted that “there is an even stronger case for the privilege not to exist in Mr Magnier’s case…”
The Court also referred to public policy reasons which supported its view, noting the “benefit of a regulated profession.” It noted that since privilege means that the courts are denied access to information, it represents a “very significant intrusion into the administration of justice”. Consequently, “those who have this powerful right of incursion into the power of a court to establish the truth, are subject to the tightest possible regulation.” Mr Justice Twomey observed:
“… there are good public policy reasons why this benefit is restricted to solicitors who hold practising certificates, and not retired solicitors or indeed solicitors who have been struck off the roll. Indeed, it is not just regulation which flows from holding a practising certificate, it is also compulsory insurance, which is also a further benefit for the public… it is only lawyers with practising certificates, and so lawyers who are regulated, who have the power to deprive a court of documents by alleging privilege (and not retired lawyers, struck-off lawyers, McKenzie Friends and other unqualified persons, who decide to provide legal advice).”
The Court therefore concluded that the documents were not privileged and must be disclosed. This was on the express basis that the legal advice, if given by Mr McCague, would not have been provided legitimately by him as he did not have a practising certificate.
Conclusion
This decision makes clear that privilege does not apply to legal advice given by a retired solicitor. It clearly demonstrates that, if one wishes to have confidence in the claim of privilege, the legal advice should be delivered by a practising solicitor in the context of a professional legal relationship. Whatever the level of trust and confidence in a retired solicitor as an adviser, their communications will not constitute legal advice which may be privileged. Indeed, the assertion that communications from such a person might be privileged could expose them to potential criminal liability so the assertion of privilege should be carefully considered.
For more information and expert advice on commercial disputes, contact a member of our Commercial Disputes team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] Wachman & Ors v Barne Estate Limited & Ors [2024] IEHC 627
[2] Calley v Richards (1854) 52 ER 406
[3] [2017] IEHC 649
[4] [2016] IEHC 612
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