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Legal professional privilege ("LPP") is a fundamental common law right as well as a human right and its importance has long been well recognised in all common law jurisdictions. LPP plays a crucial role in ensuring the proper administration of our justice system as it enables clients, individuals or corporates to seek legal advice without concern for confidentiality or otherwise. However, Ireland in recent years has, perhaps unintentionally, diluted the strength of LPP and this dilution is having a profound impact on the legal profession and in turn, society as a whole.
Ireland, since the decision in Smurfit Paribas Bank Ltd v A.A.B. Export Finance Ltd ([1990] 1 I.R. 469.), has diverged from the position adopted in many other common law jurisdictions such as England and Wales, New Zealand, Canada, Hong Kong, Singapore and Australia in respect of what constitutes legal advice. Arguably this divergence is no longer appropriate in light of developments in litigation and discovery, as well as advancements in technology. This unintended far-reaching consequential weakening of LPP is ripe for reconsideration by the Supreme Court.
The decision in Smurfit sought to distinguish communications seeking legal assistance (as distinct from advice) as not falling within the scope of LPP. This case has resulted in a further burden being imposed on practitioners requiring them to critically assess documents to see whether or not a claim of LPP can be asserted on the basis of legal advice. Often it is very difficult to accurately identify whether the communications cover legal assistance or legal advice and there is no criterion or current test as such to assist practitioners in making this determination.
In discovery, this added assessment of analysing whether legal advice or legal assistance is being sought has resulted in increased costs in what is already an expensive discovery process. By its nature, such assessments must be carried out by senior and experienced practitioners and often leads to the need to redact part of documents rather than entitling a full claim of LPP to be asserted. These assessments and redactions hugely increase the cost of making discovery where LPP is being claimed, as well as giving rise to an increased risk of challenge.
Despite the decision in Smurfit being made almost 30 years ago and the subsequent case law, what amounts to legal assistance as opposed to legal advice is still quite unclear and open to interpretation and debate. This has led to inconsistent approaches being adopted by practitioners and instances where documents, that should enjoy LPP, are being released due to the uncertainty around whether LPP applies or not.
In our experience, it seems that practitioners have taken the approach to only assert LPP where it is a very clear and unequivocal case of legal advice. However, this has arguably set the bar too high and many documents which should enjoy LPP are being released in the fear that a motion challenging the claim of privilege may be brought. Practitioners are also cognisant of the fact that they may be required to swear an affidavit averring that in their qualified opinion LPP applies to the document and hence are reluctant to claim LPP unless absolutely clear that it applies. See IBRC v Quinn ([2015] IECA 84) and Ryanair v Channel 4 ([2018] 1 I.R. 734).
The issue of privilege has also become a big issue when clients are liaising with regulators and often clients feel obligated, in an effort to maintain good relations with their regulators, to waive privilege in favour of the regulator or to minimise the documents over which LPP is claimed. Regulators are also increasingly querying whether the assertion of privilege is appropriate and requiring detailed information setting out the basis of any such claim. Often the cost of providing such information and the uncertainty around certain claims of LPP is seen to outweigh the benefit of maintaining a claim of LPP and often such claims are dropped and the documents released.
The approach to LPP is resulting in the continued erosion of LPP and this erosion must be strongly resisted with the importance of LPP being properly recognised and protected.
In Miley v Flood ([2001] 1 I.L.R.M. 489 at 504), Kelly J. referred to the following passage from the speech of Lord Taylor of Gosforth in R. v Derby Magistrates Court, ex parte B:
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more that an ordinary rule of evidence, limited in its application to the facts of a particular case. It is the fundamental condition on which the administration of justice as a whole rests ([1996] 1 A.C. 487 at 507 (emphasis added)).
If LPP continues to be eroded and continues only to be available in very limited circumstances, this will undermine the administration of justice in Ireland and from a practical perspective may reduce Ireland's attractiveness as a country within which to do business and/or litigate.
Reasoning behind the distinction between Legal Advice and Legal Assistance
In Smurfit, the Supreme Court noted and tried to weigh up two competing issues: (i) the need for candour by a client to their solicitor; and (ii) the public interest in the true resolution of litigation.
However, in contrast to other jurisdictions, Finlay C.J. in the Supreme Court found that the expansion of LPP to legal advice could only be justified if there was a close and proximate link to the conduct of litigation and the function of administering justice in the courts:
"There are many tasks carried out by a lawyer for his client, and properly within the legal sphere, other than the giving of advice, which could not be said to contain any real relation with the area of potential litigation. For such communications there does not appear to me to be any sufficient public interest or feature of the common good to be secured or protected which could justify an exemption from disclosure ([1990] 1 I.R. 469 at 478)."
Finlay C.J. emphasised that:
"[s]uch privilege should ... only be granted by the courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts ([1990] 1 I.R. 469 at 477)."
This reasoning, we respectfully submit, places too narrow a scope on legal advice privilege ("LAP") to the detriment of clients operating in the Irish legal system and fails sufficiently to recognise the importance of LAP as a fundamental right and thereby an integral part of the administration of justice.
What is Legal Advice and what is Legal Assistance?
Guidance around what can be viewed as legal advice and legal assistance is severely lacking and it is very difficult for legal practitioners to advise on whether LPP applies or not. Lavan J. acknowledged this when he observed: "the ostensible simplicity of the distinction between 'legal advice' privilege and 'legal assistance' privilege belies the difficulty of this distinction" (Ochre Ridge Ltd v Cork Bonded Warehouses Ltd [2004] IEHC 160).
In Smurfit, the drafting of documentation was deemed not to attract privilege as it did not contain any legal advice. Smurfit concerned a floating charge that the defendant company had secured over the assets of a third party. During the course of discovery, the defendant claimed privilege over correspondence and instructions that it had exchanged with its solicitors in relation to the charge. It was determined that the defendant neither sought nor received any legal advice in the correspondence although the defendant's instructions enabled the solicitors to draft the necessary documentation in relation to the charge. Costello J. in the High Court held that the correspondence was not privileged because it did not contain any legal advice but rather dealt exclusively with the drafting of the documentation. We understand that there is little doubt that this correspondence would have been regarded as covered by LAP before an English court.
Even so, Costello J. placed reliance on the decision in Smith-Bird v Blower ([1939] 2 All E.R. 406) which concerned a letter written to the solicitors by a defendant, not for the purposes of obtaining legal advice, but in answer to an inquiry as to whether he had agreed to sell the property in question and this was found not to be privileged. It is noteworthy that the decision in Smith-Bird is not without its critics in England (See Passmore, Privilege, 4th edn (London: Sweet & Maxwell, 2019), p.279, para.2-229.). In Smith-Bird, one letter was extracted from multiple letters exchanged between the client and solicitor as part of a property sale and was deemed not to be privileged due to its matter-of-fact nature. This approach is criticised as it failed to view this letter as one of a collection of letters that fell under the umbrella of legal advice and instructions in connection with the purported sale. Passmore suggests that:
"it is not altogether easy to see why the letter was not characterised as a confirmation of the solicitors' instructions from his client to act for him as the vendor in the proposed sale and to proceed with the preparation of the relevant documentation, and so form part of the necessary exchange or continuum of information between them (Passmore, Privilege, 4th edn (London: Sweet & Maxwell, 2019), p.279.)."
This concept of the continuum of communication and meetings between the solicitor and client as falling within LAP was first applied by the English Court of Appeal in Balabel v Air India ([1988] Ch. 31) and has been proven as a workable and accepted test.
In Smurfit, Finlay C.J. stated that the expansion of LAP from cases of actual or contemplated litigation to cases of communications seeking legal advice could be justified only on the basis of a close and proximate link to the conduct of litigation and the function of administering justice in the courts, and therefore, we say, narrowing the scope of LPP. He explained that nexus in the following way:
"The necessity to obtain legal advice would in broad terms appear to envisage the possibility of a legal challenge or query as to the correctness or effectiveness of some step which a person is contemplating. Whether such query or challenge develops or not, it is clear that a person is then entering the area of possible litigation ([1990] 1 I.R. 469 at 478)."
McCarthy J. held that, in his view:
"communication of fact leading to the drafting of legal documents and requests for the preparation of such, albeit made to a solicitor, unless and until the same results in the provision of legal advice, is not privileged from disclosure ([1990] 1 I.R. 469 at 480)."
The decision in Smurfit did not provide practical examples of what could be viewed as amounting to legal assistance nor did it set out guidelines or criteria for helping to ascertain whether a document seeks legal advice or merely legal assistance. As a result of this, insight as to what is considered legal assistance can only be gained from the commentary thereon and the subsequent decisions which have considered this issue. However, for the most part, subsequent decisions have been very much fact-specific and, with one exception, have provided precious little guidance to assist practitioners. The exception is the decision of Lavan J. in Ochre Ridge Ltd v Cork Bonded Warehouses Ltd ([2004] IEHC 160) wherein he set out 12 factors which must be considered in assessing whether a document is covered by LAP. However, even these 12 factors do little to assist on a practical level the assessment of whether LAP applies: ultimately, the position remains unclear and open to debate.
In consequence, the position remains in Ireland that each case must be assessed on its own facts which inevitably means there continues to be uncertainty and confusion as to whether a claim of LPP can be properly asserted. As mentioned above, LAP was found not to apply in Smurfit as the client simply communicated details to enable its solicitors to draft legal documentation and therefore did not seek legal advice. However, in Hurstridge Finance Ltd v Lismore Homes Ltd (Unreported, High Court, Costello J., 15 February 1991), communications between the controller of a company and the company's solicitors relating to the drafting of certain agreements were held to amount to legal advice and therefore LPP applied. The court was satisfied that it was a:
"reasonable inference from the surrounding circumstances and the documents themselves that he consulted the company's solicitors not merely for the purpose of drafting legal documents but for the purpose of obtaining advice as to the best course that Ficoil should adopt in the critical financial situation which had developed in its relationship with Lismore Homes."
Smurfit and Hurstridge demonstrate the difficulties facing practitioners in advising their clients on whether they can properly assert a claim of LPP or not. Both cases involve communications leading to the drafting of documentation but one benefited from a claim of privilege and the other did not.
It is noteworthy that Kelly J. in Miley v Flood observed that hybrid communications will be protected from disclosure in their entirety where it is not possible to parcel out those aspects dealing exclusively with legal advice. Often, this is not the approach taken by practitioners who, rather than assert a claim of privilege over an entire email chain, seek to redact those parts which clearly amount to LAP and release the remainder of the chain. This practice not only increases costs significantly, it further weakens LAP, as it is not being asserted when the entitlement arises. This privilege claim solely belongs to the client and accordingly, such a practice raises difficult issues for practitioners where they arguably release privileged documents and lose their client's claim for privilege.
The distinction between legal advice and legal assistance is deeply confusing and unhelpful when trying to ascertain whether LAP applies. Take Smurfit and the position adopted in that case. By engaging the services of a solicitor to prepare any documentation, arguably in almost all cases this is done with the sole or predominant purpose of ensuring that the steps taken comply with all legal requirements and insulate or protect the client from legal challenge or query. The preparation of legal documents and the provision of same should all be recognised as amounting to legal advice. It is difficult to think of a situation where a client is not seeking legal advice when engaging a solicitor to record any arrangement by way of legal document. The instructions enabling the solicitor to draft such document implicitly ask the solicitor to flag any legal issues for which the client needs to be aware and ensure sufficient protections for the client are contained within the agreement/document when drafted.
How does Ireland compare?
The position in England and Wales is that LAP applies to confidential communications between a lawyer and a client. It applies where those communications are made for the sole or dominant purpose (See R. (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35.) of giving or receiving legal advice, or where communications form part of a continuum of communication that aims to keep client and lawyer informed about the progress of a retainer so that advice may be given as required.
The scope of legal advice is broad in England and Wales. LAP will not only arise where the communications directly concern the seeking or giving of legal advice. It may also arise where the communications consist of imparting facts and are part of what the courts have called a "continuum of communications" between client and lawyer "aimed at keeping both informed so that advice may be sought and given as required" (Balabel v Air India [1988] 1 Ch. 317 at 330).
In Property Alliance Group Ltd v Royal Bank of Scotland plc ([2015] EWHC 3187 (Ch)), Snowden J. noted that lawyers are often tasked with investigating relevant information, and must be able to provide clients with candid factual briefings secure in the knowledge that such communications (and any records of them or decisions taken in consequence of them) can only be disclosed with the client's consent.
There have been attempts to narrow the scope of LAP under English law, but these have been decisively rejected. The English Court of Appeal in Three Rivers (No. 6) (Three Rivers District Council v Governor and Company of the Bank of England (No. 6) [2004] EWCA Civ 218) questioned its necessity and sought to require a link to litigation, similar to the decision in Smurfit:
"Where, however, litigation is not anticipated it is not easy to see why communications with a solicitor should be privileged. Legal advice privilege attaches to matters such as the conveyance of real property or the drawing up of a will. It is not clear why it should. There would seem little reason to fear that, if privilege were not applicable in such circumstances, communication between solicitor and client would be inhibited ([2004] EWCA Civ 218 at para.39)"
However, the House of Lords unanimously rejected this unexpected approach, an approach which alarmed the English professional bodies such that both the Bar Association and the Law Society intervened before the House of Lords to support the appeal. Lord Scott stated:
"Legal advice privilege should, in my opinion, be given a scope that reflects the policy reasons that justify its presence in our law. In my respectful opinion, the approach of the Court of Appeal in the Three Rivers (No. 6) judgment has failed to do so ([2005] 1 A.C. 610 at 650)."
Lord Carswell went on to hold:.
"all communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client ([2005] 1 A.C. 610 at 680)."
Contrasted with the current Irish position, it is clearly evident that a far more broad and robust LAP exists in England and Wales (save that the English Three Rivers (No. 5) narrow definition of "client" does not apply in Ireland, as noted in more detail below).
The decision in Three Rivers (No. 5) (Three Rivers District Council v Governor and Company of the Bank of England (No. 5) [2003] Q.B. 1556.) narrowed the definition of who may be considered a client for the purposes of LPP. That case found that not all employees of a company receiving legal advice would be considered the "client" and thus not all would be covered by LPP. Only designated employees were to be deemed the "client" for the purposes of engaging with the lawyers and receiving advice, and thus only communications between such designated employees and the lawyers would enjoy the protection of LAP.
The decision in Three Rivers (No. 5) has been widely criticised and has not been followed in Ireland. Unlike in England, all communications between representatives of a company and that company's lawyers are therefore potentially covered by LAP provided they are for the purpose of giving or receiving legal advice.
In Ryanair v Channel 4 ([2018] 1 I.R. 734), the Irish High Court rejected claims that LAP could not be asserted in respect of communications which took place between Channel 4's lawyers and all employees of the broadcasting company, as well as those communications which took place with the employees of an independent production company -to whom the production of a television programme had been outsourced, on the basis of the decision in Three Rivers (No. 5). Meenan J. distinguished Three Rivers (No. 5) and his reasoning was that the decision was predicated on the Bank of England's creation of a designated unit of employees who were solely and expressly authorised to communicate with the Bank's lawyers. In the absence of an established special unit within Channel 4 or any express authorisation conferred on individual employees, all staff were deemed to be authorised to communicate with the lawyers for the purpose of attracting LAP.
Notwithstanding the narrow definition of "client" in England and Wales, there is still robust protection for LAP. In general, the importance of LAP has continued to be recognised and protected by the courts in other common law jurisdictions such as Hong Kong, Canada and Australia.
The Hong Kong Court of Appeal in Citic Pacific Ltd v Secretary for Justice and Commissioner of Police (No. 2) ((2015) 4 H.K.L.R.D. 20) applied the same test as used in England and Wales in Three Rivers (No. 5) (save it also did not follow the narrow definition of client) to determine whether LAP applied. This broad approach took into account the "continuum of communications" concept together with the "dominant purpose" test. In further recognition of the importance of LAP, the Hong Kong Court of Appeal did not follow the narrower "client" definition adopted in Three Rivers (No. 5). The court instead deemed that LAP extends to communications between the company/corporate as a whole with the lawyer, and as such all employees within the particular company are deemed to be the "client". This decision looks at the dominant purpose for which a document is produced, and whether it is used as part of obtaining legal advice.
Both Canada and Australia have also adopted a similar approach to England and Wales in terms of applying a broad scope for LAP. These jurisdictions do not try to create a distinction between legal advice and legal assistance as is required in Ireland following the decision in Smurfit, but rather consider that documents within a continuum of communications where the dominant purpose is the giving or receiving of legal advice should enjoy protection. What is considered legal advice in these jurisdictions includes what in Ireland is often likely to be considered legal assistance.
In Canada, for example, the court in Samson Indian Nation and Band v Canada ([1995] CanLII 3602) noted:
"[I]t is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communication in which the solicitor tenders advice, it is not confined to telling the client the law and it includes advice as to what should be done in the relevant legal context."
Furthermore, Henderson J. stated in No.1 Collison Repair and Painting (1982) Ltd v Insurance Corporation of British Columbia:
"I am satisfied that a communication which does not make specific reference to legal advice is nevertheless privileged if it falls within the continuum of communication within which the legal advice is sought or offered ... If the rule were otherwise, the disclosure of such documents would tend in many cases to permit the opposing side to infer the nature and extent of the legal advice from the tenor of documents falling within this continuum. Thus, the intent of the rule would be frustrated." ([1996] CanLII 2311 (BCSC) at para.5)
Both Canadian cases highlighted the Canadian courts' willingness to adopt a broad approach when determining what falls within the scope of LAP and that a broad interpretation of LAP is at the heart of Canadian law.
In Australia, a similarly broad interpretation to LAP is also adopted. For example, Allsop J. in DSE (Holdings) Pty Ltd v InterTAN Inc ([2003] FCA 1191) noted:
"It would be rare that one could, with any degree of confidence, say that a communication between client (or agent) and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice."
DSE Holdings demonstrated in that case that the courts in Australia take a broad, purposeful approach to whether LAP applies or not. They have shown that where the purpose of seeking legal advice is established, then communications within the continuum of interactions will be deemed to fall within LAP. There is no attempt to limit this protection to only documents seeking or providing legal advice, and it extends to cover the continuum of communications which takes into account the necessity that such communications are protected to ensure the integrity of LAP. There is no attempt to differentiate between legal advice or legal assistance such as in Smurfit, and the importance of a broad interpretation and application of LAP is recognised.
It would seem from the foregoing that Ireland's approach to LAP is much narrower than that of other common law jurisdictions, and as a result, we say, has significantly reduced the potency of LPP here.
Is it time for a Revisit?
It is a difficult balancing act trying to ensure sufficient protection of LAP, while also ensuring proper disclosure for the resolution of litigation. In England and Wales and certain other common law jurisdictions as mentioned above, the balance has been struck decisively in favour of a wide scope for LAP; however, it does seem that the corresponding balance in Ireland has swung too far in favour of disclosure at the cost of LPP and so we advocate that a recalibration is required.
Ireland has diverged from the position adopted by most other common law jurisdictions and has reduced the application of LAP significantly as a result. Given that in Ireland LPP enjoys constitutional protection, as it is a dimension of the protection of the administration of justice afforded by Article 34 of the Constitution, the scope of LPP needs to be expanded to give recognition to its status as a fundamental right, and fiercely protected as it is in these other jurisdictions. The erosion of the protection of LPP by the test adopted for LAP is one that is overdue a reconsideration by the Supreme Court.
Significant disclosure obligations have been imposed through legislation in Ireland that did not exist at the time of the Smurfit decision. Similarly, the regulatory environment has dramatically changed since Smurfit with many disclosure obligations being imposed on regulated entities and enhanced oversight put in place. While obligations of disclosure have been developed and evolved to enhance its importance, LPP on the other hand has been significantly weakened, perhaps somewhat unintentionally. The weakening of LAP has continued, notwithstanding the entitlement to assert a claim of privilege continuing to be recognised and acknowledged in all new legislative measures entitling disclosure, such as data access requests.
To ensure Ireland remains a country hailed for the fairness of its administration of justice, it is important that LAP is properly protected and that the scope for what comprises LAP is broadened with a test adopted that is much clearer than the current position. It would appear that there is judicial appetite In Ireland (see below) for adopting the approach in England and Wales which confers a far broader, wide-ranging scope of what constitutes LAP. In recent cases, notably Ireland has begun to refer and use the "dominant purpose" test when considering questions of LAP which is the same test adopted by the courts in England and Wales. It remains to be seen whether the Irish courts will also follow in the footsteps of England and Wales and start to recognise a broader scope of LAP than what was demonstrated in Smurfit, but given that this depends on a Supreme Court decision, it may be some time before this opportunity arises.
A move away from the artificial exercise of trying to distinguish between legal advice and legal assistance is essential as it does not assist in identification of documents that should benefit from LAP. It causes unnecessary confusion and has led to the scope of LAP being narrowed considerably without merit or justification.
Ireland's judicial appetite to move towards a closer alignment to England and Wales can be seen in recent authorities where the dominant purpose test was used, demonstrating a potentially broader approach. Lavan J. in Ochre Ridge Ltd upheld an assertion of privilege over most of the documentation at issue in those proceedings and he applied the dominant purpose test. In summarising the principles governing LAP, Lavan J. stated:
"The dominant purpose of the communications must be the seeking or giving of legal advice. While most of the Irish cases or textbook writers do not employ the terminology of a 'dominant purpose' as to the test for legal advice privilege (it more usually being associated with 'litigation' privilege, not the subject of discussion here), it is useful in determining the scope of 'legal advice' and appears to form part of the test in the English authorities ..."
This was followed in Hansfield Developments v Irish Asphalt Ltd ([2009] IEHC 420) where McKechnie J. held that a dominant purpose test must be applied to both LAP as well as litigation privilege in Ireland. Murphy J.in McMullen v Kennedy (2008] IESC 69) held that the interpretation of legal advice to *"include advice as to what should prudently and sensibly be done in the relevant legal context*" must extend to the continuum of advice. This was further explored in UCC v ESB (2014] IEHC 135) where the High Court quoted an English text stating that LAP "protects communications between client and lawyer which are part of the continuum of the giving and getting of legal advice" (Malek (ed.), Phipson on Evidence, 17th edn (London: Sweet & Maxwell, 2010), p.646, para.23-18).
Barr J. in McMahon v Irish Aviation Authority ([2016] IEHC 221) reviewed 39 documents at issue and found that only five of these did not attract LPP, in circumstances where the five documents clearly did not seek legal advice. These documents/communications were not considered as legal assistance but rather they clearly did not seek or receive legal advice and therefore could not attract privilege. It seems that perhaps the judiciary has already moved towards a similar approach to England and Wales but the test of legal advice versus legal assistance will remain until addressed by the Irish Supreme Court.
Conclusion
This article supports the view that Ireland needs to drop the test of legal advice and legal assistance when determining whether LAP should apply and broaden the scope of LAP, to ensure that LPP is not further diluted. We further support the position that documents should be considered in the context of what comes before and after and must not be examined in isolation. Documents that form part of the continuum of communications, therefore, that would not individually attract LAP in the sense that they do not contain an express request for advice or the advice previously requested, will benefit from the protection where their dominant purpose is found to be that of keeping the solicitor or client informed or of sharing information such that legal advice may be sought or received, in a broad sense.
If Ireland were to follow the broad approach adopted in England and Wales and other common law jurisdictions towards the recognition of LAP, this would immediately strengthen LAP to the benefit of legal practitioners and clients, reduce costs, and help practitioners accurately identify when a claim of privilege can be properly asserted. The current approach in Ireland, notwithstanding the above mentioned recent case law, continues to erode LAP, and in turn LPP, and the limited circumstances within which LAP and LPP can be asserted are viewed negatively by many businesses operating in Ireland. If the erosion of LPP is permitted to continue, Ireland is likely to lose some of its attractiveness as a location for international business and the ranking of its legal system will be adversely impacted as a result. It is imperative that steps are taken now to protect and re-establish the importance of LAP and LPP and to prevent LAP and LPP being undermined any further.
