Elsharkawy v The Minister for Transport

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 31 October 2024
• Neutral Citation: [2024] IECA 258
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2024/29

Between/

Osama Elsharkawy

Respondent/Applicant

and

The Minister for Transport

Appellant/Respondent

2024 IECA 258

Costello P.

Faherty J.

Butler J.

Court of Appeal Record Number: 2024/29

High Court Record Number: 2021/1079JR

THE COURT OF APPEAL

CIVIL

Inspection of documents – Legal professional privilege – Duty of candour – Respondent seeking to inspect documents – Whether references to legal advice in the appellant’s statement of opposition and verifying affidavit constituted a waiver of the legal professional privilege which would otherwise attach to that advice

Facts: The applicant/respondent, Mr Elsharkawy, applied to the High Court pursuant to Order 31 Rule 18 of the Rules of the Superior Courts for the inspection of legal advice, as referred to at para. 26 of the affidavit sworn on behalf of the respondent/appellant, the Minister for Transport (the Minister), verifying the statement of opposition. The Minister objected to inspection on a number of grounds, but most particularly on the basis that in circumstances where the legal advice had initially been referred to in the applicant’s statement of grounds, a response to those pleadings which also referenced the legal advice did not constitute an implied waiver of the privilege which the Minister was entitled to claim in respect of it. The High Court (O’Donnell J) rejected those arguments and directed that the Minister allow the applicant to inspect the documents in question: [2023] IEHC 672. The Minister appealed to the Court of Appeal from that order. The core issue on the appeal was whether, in referring to legal advice in the way which was done on the Minister’s behalf, the Minister was deploying that advice for the purposes of the litigation. The applicant placed particular reliance on the language used in the Minister’s pleadings in circumstances where, because these were judicial review proceedings, the Minister was under the duty of candour that applies to all public authorities in this type of litigation.

Held by Butler J that she was not holding that legal advice given to a Minister on the adoption of legislation will lose the privilege that attaches to such advice if the interpretation of the legislation is subsequently put in issue in legal proceedings. She appreciated that legal advice will inevitably be given to the Attorney General and the Government in the course of the legislative process. Further, Butler J held that it is important that legal advice can be sought in relation to the operation of legislation by those responsible for its implementation. She held that where issues arise as to the correct interpretation of legislation or as to its correct application (which will usually be based on its interpretation), those issues will fall to be resolved by the courts on a purely legal basis relying on the principles of statutory interpretation. Butler J held that the legal advice which may have been given to the sponsoring Minister, or indeed to the opposing party in litigation, will simply not be relevant. However, she held that this case was not one where the parties advanced conflicting interpretations of the legislation; rather, the Minister adopted a particular interpretation of the legislation and, as a consequence, applied it in a particular way for seven years before changing his interpretation and, consequently, his application of it. When challenged as to his reasons for doing so he relied in his pleadings on the difference between the legal advice given to him at two different points in time; it was that particular and unusual set of circumstances which led Butler J to the conclusion that the privilege which normally attaches to such legal advice had been waived.

Butler J dismissed the appeal.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT ofMs. Justice Butlerdelivered on the 31 ^st day of October 2024

Introduction

1 . This appeal concerns the extent to which references to legal advice in the Minister's statement of opposition and verifying affidavit constitute a waiver of the legal professional privilege which would otherwise attach to that advice. The issue came before the High Court on the applicant's application pursuant to Order 31 Rule 18 of the Rules of the Superior Courts for the inspection of that legal advice, as referred to at para. 26 of the affidavit sworn on behalf of the Minister verifying the statement of opposition. The Minister objected to inspection on a number of grounds (considered in more detail below), but most particularly on the basis that in circumstances where the legal advice had initially been referred to in the applicant's statement of grounds, a response to those pleadings which also referenced the legal advice did not constitute an implied waiver of the privilege which the Minister was entitled to claim in respect of it.

2 . The High Court (O'Donnell J. [2023] IEHC 672) rejected those arguments and directed that the Minister allow the applicant to inspect the documents in question. This is the Minister's appeal from that order. Because the Minister is the respondent to the original appeal but the appellant before this court, and the applicant in the High Court is the respondent to the appeal, for the sake of clarity I will refer to the parties as the Minister and the applicant respectively.

3 . The core issue on this appeal is whether, in referring to legal advice in the way which was done on the Minister's behalf, the Minister was deploying that advice for the purposes of the litigation. The authorities establish that this is a fact-sensitive exercise which depends very much on the context of the litigation and the manner in which the legal advice is put in issue. In this case, the applicant places particular reliance on the language used in the Minister's pleadings in circumstances where, because these are judicial review proceedings, the Minister is under the duty of candour that applies to all public authorities in this type of litigation. This is a matter to which I will return.

4 . In order to understand how this issue has arisen, it is appropriate, initially, to outline the circumstances of the underlying proceedings. In doing so I will refer to both the statutory provisions at issue in the main proceedings and the relevant Rules of Court under which the applicant's application has been brought. I will then look closely at both sides' pleadings since many of the arguments made by each party depend on the specific approach taken and language used by the other.

Background Facts and Circumstances

5 . The applicant applied for and received a provisional driving licence (also known as a learner permit) in November 2012. He was still the holder of that permit when he committed an offence, namely driving as a learner driver unaccompanied by a qualified driver, on 28 ^th September 2021. Crucially, for the purposes of this narrative, that offence attracted the mandatory imposition of a minimum of two penalty points on his licence. The applicant was served with a fixed charge notice which, if accepted by him, required payment of a fine and acceptance of the two penalty points. The applicant paid the stipulated penalty rather than, as he would have been entitled to, not complying with the notice and awaiting the service of a District Court summons. In accordance with s.44 of the Road Traffic Act 2010, such a summons would have afforded him a final chance to pay a fine (by then an increased fine) and incur the two penalty points up to seven days before the scheduled hearing in the District Court. The attraction of paying the fixed charge rather than going to court is that the number of penalty points imposed on conviction by the District Court is generally higher than those which apply if the fine is paid.

6 . As it happens, around the same time the applicant sat his driving test (for the third time) and was issued a full driving licence on 19 ^th October 2021. Thus, he became a fully licenced driver albeit categorised as a “novice driver” for the first two years of holding a full licence. However, on 1 ^st November 2021 he received correspondence from the Department of Transport, Tourism and Sport (“the Department”) following his payment of the fixed charge for the offence described in the preceding paragraph. This correspondence notified him that “The endorsement of these Penalty Points means you have reached or exceeded the maximum number of Penalty Points allowed” as a result of which he was disqualified from driving for a period of six months commencing in November 2021. The letter records the number of penalty points at the date of the notice as seven. Whilst the applicant does not dispute that he had reached seven penalty points, these proceedings concern the applicability or otherwise of a mandatory disqualification on reaching that number.

7 . In brief, until 2014 a unified penalty points system leading to mandatory disqualification applied to both learner permits and full driving licences. Under s.3(1) of the Road Traffic Act 2002 when the number of penalty points in respect of the driving licence held by any person reached or exceeded twelve, the driver was automatically disqualified for a period of six months. In making this calculation it should be noted that under s.4 of the 2002 Act penalty points are automatically removed from a licence at the end of a three-year period. The number of penalty points required for automatic disqualification was changed in 2014 when s.8(c) of the Road Traffic Act 2014 amended s.3 of the 2002 Act as follows:-

“(1) Where penalty points are endorsed on the entry of a person and, in

consequence, the total number of penalty points standing so endorsed—

(a) equals or exceeds 12, or

(b) in the case of a person who at the time such points are endorsed is a learner driver or a novice driver, equals or exceeds 7,

the person shall stand disqualified for a period of 6 months...