NEW TWISTS IN LEGAL PROFESSIONAL PRIVILEGE: COMMUNICATIONS FOR THE PURPOSE OF LITIGATION AND BETWEEN THE LAWYER AND CLIENT

• Citation: (2002) 14 SAcLJ 195
• Published date: 01 December 2002
• Date: 01 December 2002

Introduction

1 The law governing legal professional privilege has raised controversial issues in recent years as a result of case law developments in England. This is of particular relevance to Singapore because the High Court here has applied the view of the English High Court in Secretary of State for Trade of Industry v Baker1 which, it is submitted, runs contrary to authority in England and is inconsistent with the position previously taken by the High Court and the Court of Appeal in Singapore. This particular controversy concerns what has previously been referred to as the privilege in respect of “materials for evidence” or “communications with third parties” and is now popularly termed as “litigation privilege”.

2 The second part of the article will analyse the House of Lords’ pronouncement in R v Derby Magistrates Court, ex parte B2 to the effect that the privilege which attaches to a communication between a lawyer and client cannot be breached even if the communication is essential to the defence of a person accused in criminal proceedings. This almost absolute doctrine (there are established but limited exceptions) must be considered in the context of Singapore law which has yet to declare the outcome of a potential conflict between the interest in maintaining the privilege and the interest in ensuring a fair trial through the disclosure of relevant evidence.

Litigation privilege

Nature of “lawyer and client” and “litigation” privilege

3 Legal professional privilege bifurcates into the two protective doctrines of lawyer and client privilege and litigation privilege. Communications3 between a lawyer and his client made in the course and for the purpose

of employment as a lawyer are safeguarded by lawyer and client privilege. Subject to certain exceptions,4 the lawyer is not permitted (and not compellable) to disclose these communications.5 As far as the client is concerned, he is not obliged to disclose any communication between himself and his “legal professional adviser”6 unless he waives or gives up his right to the privilege; for example, by express consent,7 by voluntarily giving evidence on the very matter to which those communications pertain8 or questioning the advocate and solicitor (as a witness) on such matters.9 The rationale of the privilege is that effective legal representation depends on the candid disclosure of information to the lawyer.10

Accordingly, the assurance of non-disclosure promotes the administration of justice.11

4 Bray, in his classic work on discovery,12 distinguished lawyer and client privilege and litigation privilege in the following manner:

“Professional privilege [ie, privilege affecting communications between lawyer and client] rests in the impossibility of conducting litigation without professional advice, whereas the ground on which a party is protected from disclosing his evidence [litigation privilege] is that the adversary may not be thus enabled so to shape his case as to defeat the ends of justice.”

5 In Ventouris v Mountain,13 Bingham LJ accepted as correct Denning MR’s statement of the law in Buttes Gas and Oil Co v Hammer (No 3)14 concerning litigation privilege:

“Privilege in aid of litigation can be divided into two distinct classes: The first is legal professional privilege properly so called. It extends to all communications between the client and his legal adviser for the purpose of obtaining advice. It exists whether litigation is anticipated or not. The second only attaches to communications which at their inception come into existence with the dominant purpose of being used in aid of pending or contemplated litigation. That was settled by the House of Lords in Waugh v British Railways Board[1980] AC 521. It is not necessary that they should have come into existence at the instance of the lawyer. It is sufficient if they have come into existence at the instance of the party himself — with the dominant purpose of being used in the anticipated litigation. The House approved of the short statement by James LJ in Anderson v Bank of British Columbia(1876) 2 Ch D 644, 656: ’… as you have no right to see you adversary’s brief, you have no right to see that which comes into existence merely as the materials for the brief.’”

Rationale of litigation privilege

6 As its name suggests, litigation privilege has its foundation in litigation whether pending or anticipated. The principle is that confidential communications between an advocate and solicitor (or his client) and a third party made for the sole or dominant purpose of litigation are protected from disclosure.15 The rationale is connected to the adversarial nature of proceedings. Non-disclosure is justified on the basis that as such communications are closely connected to, and bear upon, the party’s or his advocate’s approach (including strategy and preparation) to the litigation, their revelation to the other litigants may compromise the efficacy of the adversarial system in discovering the truth through the clash of independent views. Bray justified the privilege on the basis that such communications:16

“… cannot be produced without showing what was the view of the professional legal adviser as to his client’s case or the advice which he had given him; they are the materials selected by his mind and represent the result of his professional care and skill.”17

7 In Lee v South West Thames Health Authority,18 Donaldson MR stated that a party should be free to collect evidence for his case without the fear of revealing the nature of his research. Again, in Robert Hitchins v International Computers Ltd,19 Simon Brown LJ said of the policy underlying litigation privilege that it “must surely be to enable parties or prospective parties to prepare properly for litigation in the confidence that others thereafter will not be entitled to examine and perhaps profit from their preparatory documentation”. Litigation privilege has also been justified on the same basis as the privilege governing lawyer and client communications; namely, that it encourages third parties to be candid in the

information they provide for the purpose of litigation.20 Such candour is in the interest of the administration of justice because the litigant is made cognisant of the legal reality of his position and because truthful information ensures proper adjudication. In turn, this ensures that the client can be properly advised.21 The recognition of litigation privilege dates as far back as the 19th century.22

Litigation privilege in Singapore

8 The Evidence Act (“the Act”) does not address litigation privilege.23 Section 128 is concerned with the privilege which pertains to lawyer and client communications.24 The provision is to the effect that the lawyer25 is not permitted (unless the client expressly consents) “to disclose any communication made to him in the course and for the purpose of his employment… by or on behalf of his client”. Furthermore, he is prohibited from stating the “contents or condition of any document with which he has become acquainted with in the course and for the purpose of his professional employment”. And, of course, he must not reveal the legal advice which he has given to his client in the context of their professional relationship. Similarly, s 131, which expresses the privilege from the client’s perspective, states that he is not obliged to disclose the communications which have passed between him and legal professional adviser.26 However, litigation privilege has been acknowledged by more recent statutes.27

9 Litigation privilege had been thought to be operational in Singapore even before the first reported decision on the doctrine28 in Wee Keng Hong Mark v ABN Amro Bank NV.29 In that case, Rubin J applied the English authorities30 and determined that an investigation report commissioned by the defendant bank in proceedings against it for, inter alia, breach of duty, had not been made for the dominant purpose of litigation.31 This dominant purpose test was applied by the Court of Appeal in Brink’s Inc & Anor v Singapore Airlines Ltd & Anor32 in relation to a report made by loss adjustors concerning the loss of goods. The court ruled that the report was not commissioned principally for the purpose of litigation and, accordingly, was not protected by litigation privilege.33

10 Inexplicably, Brink’s Inc and Wee Keng Hong were not cited in the subsequent judgment of the Singapore High Court in The Patraikos No 2.34 The case involved an application for the discovery of particular documents.35 The court defined litigation privilege36 as encompassing:

(1) communications between the client’s professional legal advisers and third parties, if made for the purpose of pending or contemplated litigation, and

(2) communications between the client or his agent and third parties, if made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.

11 The court in The Patraikos No 2 did not go further to emphasise that the purpose must be a dominant one and not merely one of several purposes. This was made abundantly clear by the UK Law Reform Committee in their report from which the above definition is taken.37 Moreover, the dominant purpose test was established as the proper test by the Court of Appeal in Brink’s Inc and the High Court in Wee Keng Hong and by various rulings in England.38

12 The other difficulty arising out of The Patraikos No 2 is the High Court’s reliance on the English High Court case of Secretary of State for Trade of Industry v Baker39 for the following critical observation of Sir Richard Scott VC:

”… documents brought into being by solicitors for the purposes of litigation were afforded privilege because of the light they might cast on the client’s instructions to the solicitor or the solicitor’s advice to the client regarding the...