Litigation Privilege: When Is The Shield Lowered?

In the space of two years, the Cayman Islands Court of Appeal (CICA) and Irish High Court have reached opposite conclusions on an interesting legal issue in relation to the ability to assert litigation privilege over certain evidence.

The CICA decided that there is no privilege in a finalised witness statement that has been served on the other party. Subsequently, although it considered the CICA decision, the Irish High Court came to a different conclusion and held that witness statements do not lose their privileged status at the time of service. This article looks at the policy rationale behind both decisions and analyses the current state of the law in respect of this critically-important area of legal practice.