The High Court has determined that no privilege attached to documents allegedly containing legal advice given by a retired solicitor where such advice could not have been provided legitimately by him.
Delivering judgment for the High Court, Mr Justice Michael Twomey opined that “one could regard the benefit of privilege (attaching to communications between a lawyer and a client) as an incentive for lawyers providing legal advice to ensure that they have a practising certificate. The resulting benefit for the public is that the providers of legal advice will be properly regulated and insured. Similarly for those members of the public seeking legal advice, one could regard the benefit of privilege (attaching to their communications with the lawyer) as being an incentive for those people only to seek legal advice from a person with a practising certificate.”
Background
The third plaintiff, Mr Magnier, alleged that he agreed to purchase lands in Tipperary — Barne Estate — from them. In the course of discovery, the defendants sought documents relevant to Mr Magnier’s claim against them.
Mr Magnier resisted discovery of 10 documents on the basis that the documents contained legal advice given to him by his current legal advisor and a retired managing partner of Arthur Cox, Mr McCague.
The emails in question were allegedly sent from Mr McCague’s personal email address at a time when he was registered on the roll of solicitors but did not hold a practising certificate.
It is a criminal offence under s.55 of the Solicitors Acts 1954 to act as a solicitor without a practising certificate.
In support of his application, Mr Magnier instructed his counsel to make submissions to the effect that Mr Magnier believed that Mr McCague had a practising certificate; instructed his solicitor in Arthur Cox, Mr Twomey, to swear affidavits stating his belief that Mr Magnier believed that Mr McCague held a practising certificate; and instructed his accountant, Mr Irwin, to swear that he believed that Mr McCague held a practising certificate — but Mr Magnier himself did not swear an affidavit to this effect.
The High Court
Mr Justice Twomey recognised that Mr Magnier did not intend to allege the commission of a criminal offence by Mr McCague. Rather, it appeared to the court that his only purpose in making these allegations was for the purpose of claiming privilege so that the documents would not be disclosed to the defendants.
Presuming that the said documents would undermine Mr Magnier’s case, the court was required to consider whether it should make an order granting privilege based on Mr Magnier’s claims where Mr Magnier himself was unwilling to provide evidence to support or disprove them.
Noting that this was a situation where Mr Magnier wished to prevent the court from getting to the truth of the dispute by preventing the disclosure of evidence to the court, without Mr Magnier being prepared to swear evidence to support his beliefs, the court wondered if it should allow itself to be used in this manner.
Opining that Mr Magnier was walking “a very fine line”, Mr Justice Twomey emphasised that Mr Magnier could have asked the court to review the documents to see whether they contained legal advice but “conspicuously” declined to do so, asking the court instead to review other documents to support his application.
Mr Justice Twomey stated 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 held 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 judge continued that “he 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”.
The court then turned to the novel question of whether legal advice obtained from a retired solicitor, who did not have a practising certificate, might be privileged.
The court considered Calley v Richards (1854) 52 ER 406 which held the client of a practising solicitor, who unbeknownst to the client omitted to renew his practising certificate during the course of their relationship, was entitled to have the relevant communications treated as privileged.
Mr Justice Twomey determined that Calley did not assist Mr Magnier as it was not binding on the court, being a 175-year-old case from a different jurisdiction, and that the client therein engaged a practising solicitor before the expiry of his practising certificate. The judge also found that at no point had Mr Magnier alleged that Mr McCague was “his solicitor”, recognising that for privilege to arise there must be a professional legal relationship as per Lyons v O’Mahoney [2017] IEHC 649.
The High Court also relied upon Hussain v Commissioner of An Garda Síochána [2016] IEHC 612 as “vividly” illustrating how privilege may not be available where a lawyer does not comply with a code of conduct, finding that this case weighed even more heavily against Mr Magnier’s claim of privilege.
The court also cited public policy reasons as to why “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 or other unqualified persons, who decide to provide legal advice)”, highlighting that the “consequence for those persons who obtain advice from unqualified persons, who are not subject to regulation or insurance, is that the advice they receive is not privileged”.
The court also separately considered inter alia that the erroneous listing of two particular individuals as custodians of the defendants’ documents did not defeat the requirement for the defendants to discover those documents, and that it was not the court’s role to amend the time limits for the defendants’ discovery which had been agreed by the parties and subsequently ordered by the court.
Mr Justice Twomey further recommended that when search terms for digital data searches are being finalised by a party making discovery, it would be preferable if the proposed search terms were notified to the opposing party in advance so that representations could be made by that party. In circumstances where certain key phrases were omitted from the plaintiffs’ discovery search terms, the court agreed with the defendants that a search using three further terms should be completed.
Finding that it was not appealing to the court to decide, without evidence, whether legal advice was provided in a manner possibly constituting a criminal offence, Mr Justice Twomey determined that the application could be decided on grounds that the legal advice would not have been provided legitimately by Mr McCague and so the judge held that the documents were not privileged.
Conclusion
The High Court put the case in for mention at a future date to deal with final orders and costs.
Wachman & Ors v. Barne Estate Limited & Ors [2024] IEHC 627
