ADMISSIBILITY, PRIVILEGE AND THE EXPUNGING OF EVIDENCE
| Citation | (1994) 6 SAcLJ 146 |
| Date | 01 December 1994 |
| Published date | 01 December 1994 |
| Author | HO HOCK LAI |
In the Malaysian High Court case of Dato’ Au Ba Chi & Ors. v Koh Keng Kheng & Ors.,1 Eusoff Chin J seemed to suggest that in order for the waiver of legal professional privilege to be effective, the client must give his consent in writing. Although our and the Malaysian provisions on legal professional privilege are in pari materia,2 we must not be too easily persuaded by that decision. Much more thought on the difficult topic of waiver is required and Mr Tan Yock Lin3 has shown us the best way forward.
This note addresses a separate issue: Even if the privilege had not been waived, should it necessarily follow, as the judge appeared to have assumed, that the evidence must therefore be expunged? The basis for expunging the evidence deserved explication for the concepts of privilege and admissibility are distinct. But first, the facts. A document contained instructions from the defendants to their solicitors. The first plaintiff (hereafter “the plaintiff”) obtained a copy of the document. The document was included in the agreed bundle. At the trial, the plaintiff referred to it in his testimony. The defendants later made an application to have expunged i) the document from the agreed bundle; and ii) the reference of the witness to it from the notes of evidence. It should be emphasised that this application was made after the plaintiff had relied on or used the agreed document in examination in chief.4 The judge held that the document was and remained privileged; for that reason, he allowed the defendants’ application.
Privilege is distinct from admissibility, competence and compellability. A client, who is sued for selling goods of unmerchantable quality, admits certain defects to his lawyer. Can his opponent compel the lawyer to testify to the admission? The Court has to consider at least five questions. First, is the lawyer a competent witness? In other words, is he permitted to take
the witness stand?5 Secondly, is the lawyer compellable as a witness?6 If he is competent, then he is generally compellable;7 he can be forced to take the stand, even if, given a choice, he would not. Once he is compelled to take the stand, the Court has to consider, as a third issue, the sort of evidence that he may give.8 He may only give admissible evidence. It is inadmissible if it is caught by any of the exclusionary rules, or more accurately, unless the fact it seeks to prove falls within any of the inclusionary rules in the Evidence Act (hereafter “the Act”).9 The lawyer’s evidence of what his client told him is probably hearsay but it may be admitted as evidence of an admission of his client.10 Compare the situation where the evidence sought to be adduced from the lawyer is: “My client told me that his employee told him that the goods were not of merchantable quality.” This evidence, being an opinion and double hearsay, is inadmissible in any event, privilege or no privilege. The possibility of claiming privilege arises as a fourth issue on the presupposition that the evidence is admissible. Even if the lawyer is competent and is compelled to give evidence, he is sometimes entitled to refuse to answer a particular question by claiming privilege.11 Privilege is non-compellability to make a specific disclosure. The fifth hurdle is the most difficult to define. If the evidence which is tendered is admissible, may the court, in a civil case, nonetheless exclude it?12 If Dato’ Au Ba Chi is correct, it gives licence to the Court to protect the privilege by allowing one party, not simply to exclude (admissible) evidence of a privileged communication in the sense of preventing its use, but also to retract or have expunged the evidence after it has been relied on at the trial.
This discussion is on the interplay between the last three concepts. No more need be said of the first two because they are not material to the present discussion on documentary evidence.
Under English law, legal professional privilege is not a rule of inadmissibility. The scheme of the Act also bears that out. At common law,
admissibility is a characteristic of the evidence (the proof) but it subsumes the issue of relevancy of the fact to be proved. The Act is more sophisticated. It distinguishes explicitly between the fact to be proved and the medium of proof.13 Only relevant facts or facts in issue may be proved14 and only certain modes of proof are permissible.15 That privilege is distinct from admissibility is clear from the wordings of sections 128 and 131 of the Act. They merely state that the lawyer is not permitted to disclose privileged communication and that the client should not be compelled16 to do so.17 They say nothing of the relevancy of the privileged communication.18
To say that a document is privileged is not to say that it is inadmissible.19 When common lawyers say that a document is privileged, they mean no more than that the client, and generally, his lawyer and, in certain cases,20 a third party, may not be compelled to disclose21 it to the opponent22 or to the Court. As Mr Adrian Zuckerman has pointed out, the privilege is merely a bar to compulsory process for obtaining evidence.23 Under the principle in Calcraft v Guest,24 once a copy of the privileged document is in the hands of the opponent, the privilege does not prevent him from tendering that copy as evidence at the trial. The modern and logical explanation is that it is no longer right to raise the privilege since the
opponent does not need to compel the disclosure of the evidence; the evidence is already in his hands.25 If the document is admissible, subject to a power to exclude or expunge, it ought to be admitted.26 Generally, its content has to be proved by primary evidence, that is, by production of the original document.27 However, if party A exercises his right to the privilege and refuses to disclose the original document (which would have been admissible), the content may be proved by secondary evidence so that party B, if he has obtained a copy, may tender that as proof.28 In Dato’ Au Ba Chi, the (presumably original) document was already in the agreed bundle; the plaintiff therefore need not produce the copy that he had.29
Calcraft v Guest is often said to be inconsistent with the equitable jurisdiction of the court, established in Lord Ashburton v Pape,30 to grant an injunction to prevent the use of evidence of a privileged communication at the trial.31 As generally understood, an injunction is largely a pre-emptive remedy: the whole idea is to prevent the evidence from being adduced at the trial; once it is admitted, it is too late. So said Nourse LJ in Goddard v Nationwide Building Society: “The crucial point is that the party who desires the protection must seek it before the other party has adduced the confidential communication evidence or otherwise relied on it at trial.”32
The inconsistency is unavoidable only if the Lord Ashburton v Pape injunction is, as the English Court of Appeal33 would recently have us believe, predicated on the privilege.34 The much better view is that it is
not.35 It is submitted that Lord Ashburton v Pape ought to be seen as a manifestation of a larger principle that is wider than and which exists alongside the privilege. It concerns fairness in the use of evidence and it may be so stated: A party will be prevented from tendering admissible evidence of a matter, over which his opponent could have resisted disclosure by claiming privilege had compulsion been sought, if it would be unfair to allow the use of the evidence. If the evidence is tendered, the Court may exclude or expunge it even though it is admissible.36 The use would obviously be fair if the privilege has been waived.37 In the absence of waiver, there are at least two conceptions of unfairness.38
According to the first, it is unfair where the privileged evidence is sought to be disclosed or is disclosed against the will of the client by a person39 who is, by reason of the privilege, not compellable to make that disclosure.40 In such an instance, it matters not that there was no impropriety in the way
in which the opponent obtained the privileged evidence. When, for example, a lawyer seeks to testify on a privileged matter over his client’s objection, that the evidence must be excluded follows from our recognition that the privilege belongs to the client. The justifications for the privilege also justify a strict exclusion of the evidence.
In the second conception, it is unfair to allow the use of the evidence if to do so would be to condone unconscionable conduct on the part of the opponent.41 Such conduct includes the obtaining of evidence by trickery42 or exploitation of an obvious mistake in not raising the privilege.43 There is no need to rely on the second conception of unfairness if the first is made out. The first is not made out where the disclosure was inadvertent44 and where the client was ignorant of it.45 The second conception of unfairness would then play a critical role. When the client gains knowledge of
the disclosure after the event, it is submitted46 that he should only succeed in preventing his opponent from using the evidence if he can show unconscionability. The opponent’s use of the evidence must not involve a (further) disclosure by a person who, by reason of the privilege, would not have been compellable to do so. This is because, if that were the case, the client can raise the first conception of unfairness. Suppose a lawyer, unknown to his client, discloses privileged information to the opponent. The client ought to be able to prevent the lawyer from testifying at the trial. That he may be ignorant of the earlier disclosure is immaterial; he may still rely on the first conception of unfairness to prohibit the opponent’s adduction of the oral evidence...
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