Accident Investigations: Privileged Or Not?

Author:Mr David O'Donohoe, David Strahan and Sinead Reilly
Profession:Arthur Cox
 
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Two reports are prepared in the aftermath of a fire: one is privileged and does not have to be disclosed to the other side in the ensuing litigation, the other is not. Why?

Scenarios like this often arise, and the usual reason why one report might not be privileged is that it was not prepared for the dominant purpose of apprehended litigation. The recent decision of the High Court in Artisan Glass Studio Ltd v The Liffey Trust Ltd shows how this can happen.

WHAT IS LITIGATION PRIVILEGE?

If a document is protected by litigation privilege, it does not have to be disclosed to the other side in legal proceedings or to the court.

Litigation privilege applies to:

confidential communications between a lawyer and a client, or between either of them and a third party; where the communication was for the dominant purpose of litigation; and at the time the communication was made, the litigation was in being or was reasonably apprehended. ARTISAN GLASS STUDIOS: WHAT HAPPENED?

2 November 2002 - fire at bakery in warehouse building. 4 November 2002 - insurer appoints loss adjusters to investigate the loss and also appoints engineers to conduct forensic enquiries. 15 November 2002 - engineers produce Report 1. 24 February 2003 - solicitors for the occupier of an adjoining premises write to insured indicating an intention to sue. 20 March 2003 - engineers produce Report 2. 29 July 2008 - High Court proceedings issue. WAS REPORT 1 PRIVILEGED?

No.

Report 1 was a 2-page record of a meeting between the engineers and the landlord of the building. It set out information gleaned from the landlord about the reliability and character of the insured.

It appeared to the Court that the engineers were retained for two purposes: (i) to assist with the defence of potential third party claims; and (ii) to consider the insurer's exposure and liability to its own insured.

As there was nothing in Report 1 to show the Court that the dominant purpose of its creation was apprehended litigation by occupiers of other units, the insurer could not claim privilege over the document and it had to be disclosed.

WAS REPORT 2 PRIVILEGED?

Yes.

Report 2 contained a forensic examination of the available evidence in order to determine the cause of the fire and the place where the fire originated.

The Court was satisfied that at the time Report 2 was created, the insurer's concern was to establish the cause of the fire so that it would be in a position to meet any claims that...

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