LEGAL PROFESSIONAL PRIVILEGE: A CONSIDERATION OF RECENT COMMON LAW DEVELOPMENTS

• Date: 01 December 1992
• Published date: 01 December 1992
• Citation: (1992) 4 SAcLJ 10
• Author: JEFFREY PINSLER

Introduction

Legal professional privilege is area of law which has rarely been the subject of the reported decisions of the Singapore and Malaysian courts.1 These circumstances are somewhat surprising considering the potential situations in which disputes concerning the scope of privilege can arise. Nowhere is this more evident than in the United Kingdom where the law has developed progressively as a result of considerable litigation concerning this field. Legal professional privilege is a matter of immense importance to the practitioner for the question of whether an oral or documentary communication is or is not privileged, and therefore whether it can or cannot be relied upon at the trial, can have a significant bearing on the outcome of a case. In Singapore the rules of privilege are codified in the Evidence Act.2 Sections 128 and 131 set out the basic obligations of the advocate and the rights of the client respectively. Section 128 provides:

‘(1) No advocate or solicitor shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate or solicitor by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure —

1. (a) any such communication made in furtherance of any illegal purpose;

2. (b) any fact observed by any advocate or solicitor in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

(2) It is immaterial whether the attention of such advocate or solicitor was or was not directed to such fact by or on behalf of his client.’

Section 129 provides that section 128 ‘shall apply to ‘interpreters…clerks or servants of advocates and solicitors’ so that all the obligations imposed on the advocate and solicitor bind these persons as well.

Section 131 provides:

‘No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.’3

The effect of these provisions and the difficulties they raise have been analysed by the writer elsewhere.4 The objective of this article is to evaluate the common law developments which have taken place within the last few years and to consider the possibility and desirability of their application in Singapore. The ramifications of the two recent decisions of the Malaysian High Court will also be assessed.5

Scope of legal professional privilege

One of the most important questions which the courts have had to answer in recent years is the type or classes of communications between the advocate and his client which are protected by legal professional privilege. This was the main concern of the Court of Appeal in Balabel v. Air India.6 The appellant was the lessee of commercial premises. The respondents were the underlessees of the premises and claimed that, following negotiations, an oral agreement had been reached for the grant of a new underlease on the expiration of their existing underlease. The appellant denied such an agreement and the respondents sued for specific performance. The respondents sought discovery of three categories of documents: (i) communications between the appellant and its solicitors other than those seeking or giving legal advice; (ii) drafts, working papers, attendance notes and memoranda of the appellant’s solicitors relating to the proposed new underlease; and (iii) internal communications of the appellant other than those seeking advice from its Indian legal advisers. The appellant claimed legal professional privilege and refused to disclose the requested documents. The claim was upheld by the master. The judge allowed the appeal and ordered that certain specified documents be disclosed. The appellant appealed to the Court of Appeal. The Court of Appeal expressed the view that as the ‘purpose and scope of the privilege is…to enable legal advice to be sought and given in confidence…the test

is whether the communication or other document was made confidentially for the purposes of legal advice’.7 According to the Court these purposes had to be construed ‘broadly’. The scope of the privilege rule is not limited to communications between client and solicitor which request and convey legal advice. It also applies to those communications which do not specifically seek and convey legal advice but which ‘are part of the necessary exchange of information whose object is the giving of legal advice as and when appropriate.’8 The Court also stated:

‘In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. When information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please advise me what I should do’. But even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.’9

The Court stated that this ‘purpose of legal advice’ test would result in most communications between solicitor and client in the course of a matter, such as a conveyancing transaction, being exempt from disclosure. However, the test was not so wide as to encompass all solicitor-client communications referable to that relationship in the course of the solicitor’s business. In conclusion, the scope of the privilege extends beyond communications which specifically seek or convey legal advice but is not so broad as to automatically cover all communications which pass between the client and solicitor. Applying the test to the circumstances of the case the Court upheld the appellants’ claim to privilege.

It would be interesting to see what a Singapore court makes of Balabel. Section 128 of the Evidence Act refers to communications made to the advocate and solicitor in the course and for the purpose of his employment as such advocate or solicitor. Clearly, a literal construction of this terminology leads one to the broader approach which was not adopted in

Balabel. The broad approach certainly seems to have been the traditional trend of earlier leading authorities such as Greenough v. Gaskell10 and Minter v. Priest.11 Privilege attached to communications in the course of the solicitor’s business between him and his client which were referable to the relationship of solicitor and client. According to Taylor L.J. in Balabel the application of the broad approach in past cases may have reflected the ‘restricted range of the solicitor’s activities at the time’, in the sense that ‘his role would have been confined for the most part to that of lawyer and would not have extended to business adviser or man of affairs’.12 It seems that the courts in Singapore and Malaysia will only be able to adopt the narrower approach of the Court of Appeal in Balabel if they can reconcile it with section 128, a result which could only materialise if a restrictive interpretation of the provision is adopted.

The nature of privileged communications again came up for consideration in Ventouris v. Mountain (Italia Express).13 This case, however, was not so much concerned with the purpose of the communication as with its origin. The issue was whether documents which had not previously been in the power, custody or power of the party, and which were not created for the purpose of litigation, but which were obtained by the solicitor for that purpose, were privileged. This was an insurance claim by the owner of the vessel (the plaintiff) for total loss of his vessel against the defendant himself and as representative of the underwriters concerned. The plaintiff applied for an order that the defendant make and serve a further and better list of documents which were in the possession, custody or power of himself and those he represented. The defendant resisted the application on the basis that the documents had not previously been in his possession, custody or power and had not been created for the purpose of litigation. Rather, they had been obtained by his solicitors for that purpose. Saville J. thought that the disclosure of these documents would ‘diminish or destroy the confidential relationship between solicitor and client…and gravely hamper proper and effective preparations for trial. .,’14 The learned Judge could see ‘no good reason for distinguishing…between documents that have, and those that have not, been brought into existence for the purpose of the litigation’.15 The Court of Appeal disagreed and allowed the appeal. Bingham L.J., who delivered the main judgment, found it ‘hard to see’ how the rights of a litigant are infringed where a document comes into

existence independently of the litigation, particularly as the third party from whom the document is obtained could himself be...