Loss of Privilege Over Legal Advice Confirmed

The Court of Appeal has upheld a High Court decision in judicial review proceedings, reinforcing that referencing legal advice in court can lead to a waiver of privilege. In this case, the Court found that the advice was used for strategic advantage in litigation and had been specifically pleaded. As a result, it found that the advice should be made available for inspection. Our Commercial Disputes team explores the decision and sets out why it underscores the importance of careful handling of privileged material in disputes.

The Court of Appeal[1] recently upheld a High Court ruling which determined that the legal advice obtained by a Minister which later led to a shift in their approach to the application of the law must be made available for inspection. We explored the High Court’s ruling in a previous insight. The appeal court agreed with the High Court that, by referencing the legal advice in the statement of opposition, the Minister had used it for litigious advantage. As a result, Mr Elsharkawy was entitled to be provided with and review the advice in order to challenge the adequacy of the reasons behind the Minister’s change in position and the rationale of the resulting decision.

Background

The case involved judicial review proceedings brought by Mr Elsharkawy against the Minister for Transport. It centred on a changed approach to the number of penalty points required before mandatory driving disqualification was handed down. A 2021 press release outlined the Minister's decision to revise a previously established approach, which had been based on legal advice from 2014. The change was informed by updated legal advice received in 2021, reflecting a shift in the interpretation and application of the law. The Minister had specifically referred to the legal advice as a reason for his decision and to justify the rationality of the change in the application of the law in his statement of opposition in the judicial review proceedings.

Mr Elsharkawy applied to the Court to be allowed to inspect the legal advice. The Minister argued that referencing legal advice in the statement of opposition did not amount to an implied waiver of privilege. This was because the advice had already been cited in Mr Elsharkawy’s statement of grounds. Therefore, the Minister's response merely addressed those pleadings rather than voluntarily disclosing privileged information. Mr Justice O’Donnell, in the High Court, agreed with Mr Elsharkawy and found that reference to legal advice in the proceedings had been deployed for the Minister’s litigious advantage. Accordingly, the High Court directed the Minister to allow inspection of the documents in question. The Minister appealed.

Decision

The Court of Appeal identified the central issue as whether the Minister's references to legal advice in the proceedings constituted its deployment for the purposes of litigation. This required examining whether the references went beyond merely acknowledging Mr Elsharkawy’s pleaded case and actively used the advice to support the Minister's legal position. It also recognised that this was a fact-sensitive exercise which heavily depends on “the context of the litigation and the manner in which the legal advice is put in issue”. It therefore looked at the case through that prism, noting that because they entailed judicial review proceedings, the Minister was under a duty of candour that applies to all public authorities in that type of litigation.

The Court of Appeal noted that, rather than Mr Elsharkawy being the exception, the change in approach had the potential to affect a significant number of other people. It also observed that had Mr Elsharkawy been informed of the change in the application of the law, he might have made a different decision when dealing with the fixed penalty notice. This notice ultimately pushed him over the cumulative penalty points threshold for disqualification under the original legal approach. The Court determined that, by reference to the relevant court rules applicable to judicial review proceedings, it was not sufficient for the Minister to merely deny Mr Elsharkawy’s pleas. Rather, the specific pleading obligations on a respondent to judicial review proceedings under the rules required them to be ‘up front’ with the applicant and the court.

The Court understood the Minister’s pleaded case to include an assertion that the reasons for the change were to be found in the press release of 14 May 2021 and the legal advice it referenced. In addition, the Minister’s counsel had also conceded that if reasons were required then the legal advice would be relied on. The Court also looked at the rules regarding inspection of documents, noting that they established a prima facie right to inspect any document referred to in the other side’s pleadings.[2] Although it noted that a party will not generally refer to privileged material, where they do, the Court can consider that claim of privilege in deciding whether to not require inspection. Like this case, it also noted that the manner in which the privileged material is referred to can call into question whether the claim of privilege which might otherwise apply had been waived.

The Court then looked at relevant case law regarding the implied waiver of privilege through deployment for litigious advantage. As a consequence, the Court had to consider the context in which the legal advice had been referred to by the Minister in his pleadings. It concluded that the Minister had deployed the 2014 and 2021 legal advice for litigious advantage in that he was “relying on it to provide reasons and justify the rationality of his decision.” Since the Minister was relying on the legal advice - and specifically the difference between the advices obtained in 2014 and 2021 - regarding the change in the application of the law, the Court of Appeal held that Mr Elsharkawy should be able to inspect the advice in order to have a fair opportunity to challenge the Minister’s assertions.

Conclusion

Although the case centred on judicial review and the actions of a public authority, the decision underscores the broader principle that parties should exercise caution when referencing privileged material, especially in their pleadings. These references can lead to claims of privilege being waived, particularly if the material is used to bolster a party’s case. For those who may be bringing judicial review proceedings, the decision may be a helpful one when seeking to compel inspection of purportedly privileged material where it is relied on by the respondent public authority to justify its position. This is especially so where that position has changed over time.

For more information and expert advice, 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] Elsharkawy v Minister for Transport [2024] IECA 258

[2] Subject to the court being satisfied that there is sufficient cause or excuse not to require such inspection.