Discovery does not require a party to hand over everything. Order 9 of the National Court Rules 1983 assumes the existence of privilege and regulates how it is claimed.
Rule 6(4) — disclose, but do not produce
Where a party making a list of documents claims that any document in his possession, custody or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege.
Privilege excuses production. It does not excuse disclosure. The document is listed, described sufficiently to be identified under Rule 6(3), and placed in the part of the schedule reserved for privileged documents — with the grounds stated.
“Privileged” standing alone does not satisfy sub-rule (4). The word “sufficiently” requires enough for the other side to understand and, if so advised, challenge the claim.
The same requirement appears for inspection: under Rule 9(3)(b), a party served with a notice to produce may respond by claiming that the document is privileged and sufficiently stating the grounds.
What is privileged
| Ground | Typical documents |
|---|---|
| Legal professional privilege — legal advice | Confidential communications between a client and their lawyer for the purpose of giving or obtaining legal advice |
| Litigation privilege | Documents brought into existence for the dominant purpose of the litigation — the lawyer’s notes, experts’ reports obtained for the case, proofs of evidence |
| Without prejudice communications | Genuine attempts to settle. Compare Order 8 Rule 80, which keeps a payment into Court from the judge, and Rule 49, which does the same for an offer of contribution |
| Self-incrimination | Documents tending to expose the party to a criminal penalty. Note Order 9 Rule 2(4) — on a claim for a penalty recoverable under an Act or enforcement of a forfeiture, a party need not list documents relating only to that claim |
| Public interest | Documents whose disclosure would be injurious to the public interest — expressly preserved by Rule 16 |
This Division does not affect any rule of law which authorizes or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest.
It does not itself confer immunity. It confirms that Order 9 leaves the general law untouched. Public interest immunity is most often raised where the State or a State agency is a party — see proceedings against the State. The claim is not made by the party’s assertion alone; the Court decides.
Rule 13 — the Court may look
Where an application is made for an order under Rule 10 for production for inspection by another party, or under Rule 12 for production to the Court, and a claim is made that the document is privileged from production, or an objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.
A party cannot make a document privileged simply by asserting that it is. Rule 13 lets the judge read it — without the other side seeing it — and rule on the claim.
Note the breadth of the words “or an objection to production is made on any other ground”. Rule 13 is not confined to privilege; it reaches any objection to production.
Rule 10 itself is framed accordingly: the Court may order production “unless the document is privileged from production”. And Rule 12 allows the Court, at any stage, to order production to itself of any document relating to any matter in question, and then to deal with the document in such manner as it thinks fit.
How to attack a privilege claim
- Read what was stated. If the list says only “privileged”, the party has not complied with Rule 6(4), and that is the first point to make.
- Ask for the grounds properly stated, in correspondence, before applying. It is cheaper and often sufficient.
- Apply under Rule 10 for production, and ask the Court to inspect under Rule 13. Do not ask to see the document yourself — that would defeat the privilege before it is decided.
- Identify why the claim looks wrong. A document created in the ordinary course of business does not become privileged because it was later sent to a lawyer. Litigation privilege requires the litigation to have been the dominant purpose of its creation.
The Court shall not make an order under this Division for the filing or service of any list of documents or affidavit or other document, or for the production of any document, unless satisfied that the order is necessary at the time when the order is made.
So an application must show necessity, judged as at the date of the application. A request for documents that may become relevant later, or that are already available by other means, will fail this test whatever the position on privilege.
Rule 11 — a party to whom a document is produced for inspection may make copies of the document. Once privilege is not claimed, or is rejected, inspection carries with it the right to copy.
Privilege also constrains interrogatories: under Rule 22(4), privilege is one of only three permitted grounds of objection to answering. And in defamation, Order 8 Rule 91 bars interrogatories as to the sources of information or grounds of belief of the defendant on the issues of fair comment and good faith — see defamation pleadings.
Sources
- National Court Rules 1983 — O 8 rr 49, 80, 91; O 9 rr 2, 6, 9–16, 22
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.