legal professional privilege.pdf

legal professional privilege 1.

INTRODUCTION

A. Legal privilege •

Types of privilege under the EA:

•

Marital (s 124);

•

State affairs (s 125);

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Communications made in official confidence to public officers (s 126);

•

Self-incrimination during interlocutory proceedings (s 134);

•

Legal Professional Privilege (s 128-131)

•

Provisions on LPP essentially unaltered since 1893, up until the inclusion of additional provisions with the 2012 Amendments

•

Effect of privilege:

•

Witness who relies on privilege is merely excused from answering a question which seeks privileged info – privileged info does not have to be provided in court

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However, witness is still expected to give evidence on other matters

B. Legal Professional Privilege •

Basis of LPP: o

Raison d’etre of legal professional privilege is that full, free & fair communication between persons and their legal advisors, w/o which the effective administration of justice would not be possible, can only take place if such communications can be carried out in confidence (Skandinaviska at [23])

o

Client must be confident that he can freely communicate with his lawyer with confidence, so that the lawyer, having been provided with all necessary information, may give appropriate advice & provide effective representation, in the interests of the administration of justice (Pinsler)

o

Principal justification for protecting lawyer-client confidentiality with a special privilege is to encourage candour on the part of the client, which in turn assist lawyers in providing useful advice & effective legal representation (Roberts & Zuckerman, Criminal Evidence)

o

Chinty says it presents a paradox – in facilitating communication between client & solicitor, it promotes the administration of justice through free, full, and frank disclosure so as to get the best advice §

However, when a claim for privilege succeeds, it hinders the administration of justice, since relevant evidence may be excluded, and the truth-finding process may suffer as a result

•

Types of LPP:

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(1) Legal Advice Privilege (LAPri) – s 128 is generally taken as providing for LAPri in SG 1

o

Concerns the protection from disclosure of confidential communications between the client & his lawyer, arising in a legal context in the course of their r/s §

Rationale is that legal advice depends for its efficacy on the client’s candid disclosure of all pertinent facts, therefore privilege must exist for the purpose of protecting the confidentiality of communications between client & lawyer

§

This therefore encourages candid communications between client & lawyer à essentially, to give good advice à you need full story à client needs to be sure what he tells lawyer remains confidential

o

Scope §

As per the 2012 amendments, the incorporation of s 128A in addition to the preexisting s 128 is an extension to LAPri to include the r/s between an entity and its legal counsel •

In addition to s 128 (‘Advocate & solicitor’), s 128A extends the scope of LAPri to apply to legal counsel, defined in s 128A as read with s 3(7) to include: o

(a) a person (by whatever name called) who is an employee of an entity employed to undertake the provision of legal advice or assistance in connection with the application of the law or any form of resolution of legal disputes;

o

(aa) any Deputy Attorney-General; or

o

(b) a public officer in the Singapore Legal Service — §

(i) working in a ministry or department of the Government or an Organ of State as legal adviser to that ministry or department or Organ of State; or

§

(ii) seconded as legal adviser to any statutory body established or constituted by or under a public Act for a public function.

§

Exists at any time a client seeks legal advice from his solicitor whether or not litigation is contemplated (Greenough v Gaskell), and retention is not necessary (Minter v Priest, as well as S 2(1) of LPA – a client is any person who retains or employs, or is about to retain or employ) •

The solicitor must be consulted qua legal adviser à legal advisers can play either executive or legal functions, and only communications made in their capacity as legal advisers should be protected (ARX)

•

Communications must be confidential à if the communications were publicly

available,

then

confidentiality

would

not

subsist

(ARX,

Skandinaviska this is in s 128(1) & s 128A(1) anyway) •

(2) Litigation Privilege (LiPri) – exists by virtue of the common law, since s 131 clearly envisages LiPri, and s 2(2) would apply to confirm the applicability of LiPri at common law in the local context (Skandinaviska citing Mariwu) o

Any document sought for the dominant purpose of litigation is protected from being disclosed

2

§

Rationale recognises that a paramount feature of the adversary system is that autonomy is granted to the parties to strategise & prepare their cases in private, in the interest of optimal presentation at trial

§

LiPri specifically protects the efficacy of the litigation process by protecting parties’ ability to prepare & develop their cases with the necessary degree of confidentiality Therefore also protects the info passing from a 3P and the client, or the

•

lawyer, for the purposes of pending or anticipated court proceedings (Skandinaviska) §

Overlaps w/ legal advice privilege in respect of communications between client & lawyer concerning litigation – Advice given by advocate & solicitor/legal advisor in relation to court proceedings is both protected under legal advice & litigation privilege

o

Scope: §

Threshold question: Was there a reasonable prospect of litigation at the time the client sought legal advice? (Skandinaviska)

§

Was the contemplation & anticipation of litigation the dominant purpose for which legal advice was sought and obtained? (Skandinaviska, citing Waugh)

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ESSENTIALLY: LiPri and LAPri have different purposes and are governed by different rules but are both concerned with the proper & effective representation of the client in the interests of the administration of justice

•

SUMMARILY: LAPri •

LiPri

Exists at any time a client seeks legal

•

advice from his solicitor, regardless of

Only exists when litigation exists or is contemplated

whether litigation is contemplated •

Applies

only

to

confidential

•

communications made for the purpose

confidential or otherwise, as long as it is for

of selling legal advice à not just any

the purpose of litigation

communication to the lawyer •

Applies to every communication whether

Therefore

applies

Therefore

can

include

only

communications from 3P (regardless

communications by client or by an

of whether they are agents of the

agent

client) à CRITICAL DIFFERENCE

employed

to

to

o

obtain

legal

advice on behalf of the client à would

BETWEEN

stand

BECAUSE THEY PLAY DIFFERENT

in

EXACTLY

THE

SAME

POSITION AS THE CLIENT (citing

THE

PRIVILEGES

(CRITICAL) ROLES

Wheeler) •

•

Concerned with protecting confidential

•

Concerned with protecting info & materials

communications between lawyers &

created

clients

purpose of litigation

&

collected

for

the

dominant

However, there is one area of overlap between the two forms of privilege: Legal advice is frequently sought or given in connection with current & contemplated litigation, but can also be sought for purposes that have nothing to do with litigation o

Therefore any advice that is sought or given in connection with litigation would fall into both categories (Lord Scott in Three Rivers No. 6) 3

C. Approach to & scope of LPP •

Central dichotomy underlying the judicial approach with respect to LPP is between the [1] Balancing Approach, and [2] Absolutist Approach

(1) BALANCING APPROACH •

Court should adopt a broad balancing approach by recognizing that LPP is a balance between: o

Public interest in favour of protecting lawyer-client communications which facilitates the lawyer giving effective advice, or strategizing and preparing his case, thereby promoting the administration of justice §

LPP protects a public interest in the ‘efficient working of the legal system (which) requires that people should be able to obtain professional legal advice on their rights and liabilities and obligations (LAPri) …(and) legal advice and assistance in connection with the proper conduct of court proceedings (LiPri)’

§

However, in practice ‘candour cannot be expected if disclosure of the contents of communications between client & lawyer may be compelled, to a client’s prejudice & contrary to his wishes’

§

That’s why client has the right, or privileged to withhold disclosure of the contents of client-lawyer communications

§

In the ordinary course, the client has an interest in asserting this right, in so far as disclosure would or might prejudice him (Lord Nicholls, Re Derby at 510)

o

c/f Public interest in the favour of disclosure of relevant evidence which ensures that all relevant material is made available to the court. If a claim for privilege succeeds, relevant evidence may be excluded, which consequently may hinder the truth-finding process §

The other aspect of public interest is that ‘all relevant material should be available to the courts when deciding cases. Courts should not have to reach decisions in ignorance of the contents of documents or other material which, if disclosed, might well affect the outcome’

(2) ABSOLUTIST APPROACH •

The court should always uphold LPP, regardless of any competing interests à privilege is a substantive legal right that should not be dependent on other public interest considerations o

As per the majority view in Re Derby: §

The drawback to the balancing approach is that once any exception to the general rule is allowed, client’s confidence is lost

§

Now solicitors therefore have to qualify to the client that his confidence may be broken if in some future case the court holds that he no longer had ‘any recognizable interest’ in asserting his privilege, instead of being able to client that anything which the client might say would never in any circumstances be revealed w/o his consent – undermines the purpose of privilege (Taylor CJ) •

Balancing exercise not required because balance must always come down in favour of upholding privilege unless it’s waived. This may work hardship on 3Ps seeking to assert his innocence in some cases, but it is overall better in the interests of justice (Lord Lloyd) 4

(3) SINGAPORE APPROACH •

In Gelatissimo, court was opined that it was possible to reconcile Barclay’s and Re Derby by restricting the balancing approach to cases falling under the statutorily enshrined fraud exception à balancing exercise should only be used in ‘defining the outer limits of what constitutes fraud for the purpose of lifting legal privilege. Since the House of Lords in Re Derby did not challenge the validity of the fraud exception, Re Derby is technically not inconsistent with the Barclays case’. o

However, that isn’t a clear pronouncement on whether the court is in favour of either approach, which is fair because neither party was arguing that – issue was the scope of the fraud exception and the HC did decide on the balancing approach to ‘penumbra’ cases to the fraud exception

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Additionally, s 128-131 are not phrased as balancing test – provides no room to balance the interest of the person entitled to privilege with any countervailing interests o

Only stipulated exceptions are client consenting to disclosure, waiver of disclosure, and ‘fraud & crime exception’

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HOWEVER – would argue that the absolutist approach is inappropriate in SG (Pinsler, New Twists In Legal Professional Privilege: Communications For The Purpose Of Litigation And Between The Lawyer And Client) o

Lord Taylor in re Derby based his judgment that LPP is ‘more than a rule of evidence’ and is ‘a fundamental condition on which the administration of justice as a whole rests’ on his classification of LPP as a privilege protected by the ECHR à ‘fundamental HR’ that comes under the right to a free trial

o

Not the case in SG à various privileges recognised by the EA are formulated as ordinary rules of evidence, and are undistinguished from other provisions §

Additionally in SG, particular consideration should be given to the accused to ensure he is able to adduce sufficient evidence to establish a defence, rebut a presumption, or refute the prosecution’s case on light of the Singapore legal system which requires the accused in a variety of instances to carry BoP through the rebuttal of presumptions, and the establishment of exceptions to liability on BoP

§

ECHR doesn’t operate in SG, and the SG Constitution doesn’t acknowledge lawyerclient privilege as a fundamental right

§

However, privilege could arguably come under the constitutionally enshrined right to a fair trial (Art 9(1)-(4)) and equality between parties (Art 12(1))

D. Scope of LPP •

Under s 2(1), Parts I, II, and III apply to court proceedings (‘all judicial proceedings in or before any court’), but not to [interlocutory] affidavits à LPP doesn’t apply to interlocutory affidavits, (but does apply to EIC affidavits, which is evidence at trial)

•

Pinsler however argues that interlocutory applications involving discovery of general & particular documents made in the contemplation of use of such evidence at trial should be protected by privilege o

Why? – The Legal Profession (Professional Conduct) Rules provide that ethical rules of conduct, including confidentiality in s 24, apply to the entire spectrum of lawyer-client relationships, irrespective of circumstances

5

§

Lawyer’s duty of confidentiality has strict exceptions – unless client consents to disclosure, or disclosure is required by court order

o

Policy reasons still remain – in the interests of the administration of justice, candour and disclosure is necessary for the legal advisor to provide the most effective advice or conduct the most effective strategy, whether at trial or at the interlocutory stage

o

The case of Yap Sing Lee supports the argument that while the EA governs privilege at trial, privilege is a substantive legal right that can be claimed beyond the court room, and common law principles can govern issues of privilege in a non-judicial setting Yap Sing Lee v MCST Facts

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Case concerned an appeal against the finding of the Strata Titles Board that certain sought by a subsidiary proprietor of an apartment from the MCST were privileged

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HC held that since proceedings before a Strata Titles Board were not judicial in nature, the rules governing professional privilege in the EA does not apply, as a consequence of s 2(1)

/held/

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MCST was entitled to rely on CoLaw principles which establish legal advice privilege as a substantive legal right

•

Therefore provisions in the EA apply to the use of evidence in a judicial proceeding; o

C/f CoLaw right of privilege which is not limited to the nature of the proceedings

o

This was based on CoA’s citation of English & Australian authorities in Skandinaviska, although Pinsler argues that in Skandinaviska, foreign law was cited to explain the CoLaw principle for certain aspects of LAPri and how to interpret the EA, and not as an endorsement of the CoLaw position that LAPri is a substantive legal right that is generally enforceable

•

However HC used the fact that LAPri has evolved from an evidence rule to a general legal right in leading jurisdictions to argue that LAPri’s enforceability shouldn’t depend on whether an existing or subsequent dispute does go to the courts since the purpose of LAPri is encouraging candid disclosure on info in the interests of the administration if justice

2. LEGAL ADVICE PRIVILEGE A. Provisions in the EA •

s 128(1) – Professional Communications o

128.—(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 6

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. o

Explanation—The obligation stated in this section continues after the employment has ceased.

•

Content of s 128(1) o

S 128 only applies to the advocate or solicitor à not to the client

o

Obligations under s 128 apply to events occurring “in the course and for the purpose of such employment”

o

Apply to communications made to A&S “by or on behalf of the client” §

Privilege protects communications between:•

Lawyer & client;

•

Layer & client’s representative acting as a mere conduit when communicating with the lawyer;

•

Lawyer & client’s representative when the communication is made for the dominant purpose of giving legal advice.

o

S 128 contains 3 directions: §

[1] Advocate & solicitor must not disclose ‘any communication made to him in the course and for the purpose of his employment as such A&S by or on behalf of his client’;

§

[2] A&S not permitted 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’;

§

[3] A&S prohibited from disclosing any advice given by him to his client ‘in the course & for the purpose of such employment’

o

[1] & [3] are concerned with communications, but [2] seems to also cover content & condition of a document which the lawyer comes across in the course of the retainer, including pre-existing documents & documents which do not involve the client §

However, such a reading would be inconsistent with Skandinaviska, which held that LAPri protects confidential communications only à [2] should therefore only be read in the context of communications between the lawyer & client, and not random shit the lawyer comes across

o

Privilege operates beyond the termination §

Clear in the Explanation of s 128, as well as in the common law precept that “once privileged, always privileged” (Calcraft v Guesti)

o

Requirement of confidentiality §

Unlike s 131, s 128(1) does not expressly state that it only protects confidential communication •

However, Skandinaviska at [35] held that while s 128 itself does not have an explicit reference to confidentiality as a necessary quality in communication to the lawyer for communication to privileged, it is implied that the nature of business involved in obtaining legal advice has the element of confidentiality

•

S 128A(1) – Communications with legal counsel in entity 7

o

128A.—(1) A legal counsel in an entity shall not at any time be permitted, except with the entity’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal counsel, 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 employment as such legal counsel, or to disclose any legal advice given by him to the entity, or to any officer or employee of the entity, in the course and for the purpose of such employment.

•

Content of s 128A(1)

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The provision essentially applies privilege currently accorded in s 128(1) to communications between entities & their legal counsel o

LAPri accorded under s 128 is therefore extended to the context of a company and a legal adviser

•

Scope of s 128 & s 128A is expended by s 129 – Sections 128 and 128A to apply to interpreters, etc. o

129. Sections 128 and 128A shall apply to interpreters and other persons who work under the supervision of legal professional advisers.

o

Therefore LAPri is preserved by ensuring that it is not compromised by persons who have access to privileged communications by reason of their working r/s with the lawyer or legal counsel §

Extends the obligation imposed by s 128 & 128A on the solicitor to interpreters, as well as employees and other categories of staff who work under the supervision of legal professional advisers – e.g. secretaties, paralegals & trainees.

B. Scope of Privileged Communication •

Relevant legal context test (Balabel, as endorsed by Skandinaviska at [47]) o

At [47]: CoA acknowledged that especially considering the complexity of modern commercial and investment ventures, clients, lawyers are expected to provide not just legal advice, but also ‘multi-disciplinary advice from different professions in many of the problems they face or encounter’.

o

Lawyers therefore can be expected to give advice ‘(extending) to other fields of learning which go beyond what was traditionally legal advice’ §

The test, as per Taylor LJ is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly to include advice of what should be ‘prudently & sensibly done in the relevant legal context’

§

Acknowledged that there is a ‘continuum of communication & meetings’ between the solicitor & client, and even communications which do not specifically seek & convey legal advice may be privileged when they are ‘related directly to the solicitor’s performance of his professional duty as a legal advisor’ (Skandinaviska at [48], citing Three Rivers (No. 6))

(1) ADDITIONAL COMMON LAW LIMITS •

The requirement that communication must be in the course of the A&S’ employment means that:

8

o

Privilege doesn’t extend to situations in which A&S is being consulted merely as a friend – must be qua lawyer (Smith v Daniell, ARX)

o

Litigation need not be contemplated at the time of communication (Greenough v Gaskell per Lord Brougham)

o

Lawyer need not be retained (Minter v Priest as well as S 2(1) of LPA – a client is any person who retains or employs, or is about to retain or employ)

C. Privileged Info may include factual info from 3P source •

While s 128 only privileges communications made ‘by or on behalf of (the) client’, privilege also extends to communication that is not privileged in its own right, but is so embedded or has become such an integral part of the entire report that it cannot be redacted (Skandinaviska at [98])

•

In such a situation, the non-privileged communication ‘(forms) the backdrop’ of the legal advice (Skandinaviska, citing In re Sarah C Getty Trust at [99]) and parties should be slow to claim privilege over the entire report since the non-privileged parts do not play an important role in the context of legal analysis o

C/f situations where the document deals with a single subject-matter and can be said to have been brought into existence ‘either for the purpose of giving or getting legal advice or for the dominant purpose of gathering evidence’ à can claim privilege for the entire document as well

o

Or if it doesn’t satisfy the single subject matter test à cannot claim privilege over whole document, but if part of the document refers to privileged matters, the privileged part may be blanked out

o

Or part of the document is privileged and the remaining is unprivileged and the unprivileged part is separable from & not integral to the privileged part à privileged part can be redacted, and the rest of the document is revealed to the opposing party

•

This was applied on the facts of Skandinaviska: o

CoA found that the privileged material communicated was inseparably embedded in the reports, so much that redaction and separation of the drafts to exclude passages containing privileged info would not be practical

o

Therefore the PWC Draft Reports (non-privilege) were in all likelihood ‘so intertwined with the legal advice & assistance given by D&N to PWC (privileged) that these reports became part of the privileged solicitor-client communications’ (at [98])

D. Client’s Info Need Not Actually be Communicated •

Should information that a client intended to communicate to the lawyer, but failed to due to a technical error (e.g. I sent it to the wrong email address) still be privileged? o

The case of Three Rivers (No. 5) concerned a set of documents prepared for the purpose of legal advice intended to be communicated to the lawyers, but were actually never received §

Tomlinson J held that the documents were still protected by LiPri – if the principle is that a person should not be in anyway fettered in communicating with his solicitor, and must not be fettered in preparing the documents to be communicated to his solicitor it must be axiomatic that it is the confidentiality of the whole process of communication which requires protection, and not just the documents which can be recognised as comprising the actual or final communication 9

o

Pinsler argues that this is because the objective of LAPri isn’t completely fulfilled if its operation depends on the actual receipt of the client’s communication by the legal adviser à client’s ability to prepare for consultation with his lawyer is compromised if he is not assured that LAPri protects all info intended to be communicated §

Additionally, the communication is confidential the moment it is communicated – purpose of LAPri is compromised if the privilege is withheld from confidential communication simply because the communication was not received by the other party

o

HOWEVER §

A plain reading of both s 128(1) & 131 indicate that communication must actually be received before it is protected by privilege •

Under s 128, the communication must be “made to” the solicitor;

•

Under s 131, privilege protects the communication “which has taken place”

• §

This indicates that LAPri only protects actual communication

Pinsler also argues that since LAPri confers a very special advantage by overriding the public interest of ensuring the court’s access to all the relevant evidence, the scope should be limited as per the EA, and should not be extended as a concession to client’s failure to ensure proper communication of information •

Also may lead to abuse – client can just claim that he had intended to give information to the lawyer for the purpose of legal advice, when he did not actually have that intention

E. “By or on behalf of the client”

(1) WHEELER “CONDUIT TEST” VS. PRATT “DOMINANT PURPOSE” TEST •

S 128(1) explicitly protects communications made from a client, or on behalf of a client, to his lawyer

•

Narrow traditional UK position: o

The words “on behalf of” in s 128 mean that only a communication made through the agent as a conduit of the client can be protected under LAPri (Wheeler v Le Marchant) §

If the 3rd party representative is employed as an agent on the part of the client to obtain legal advice of the solicitor, he stands in exactly the same position as the client as regards to protection, and his communications with the solicitor stand in the same position as his principal’s communication à PROTECTED

•

Broader Australian position o

Information obtained from 3P can be privileged if the communication was obtained for the dominant purpose of giving legal advice (Pratt Holdings) §

Inquiry should focus on what the nature and the function of the document rather than the nature of the 3P’s relationship with the client – if the function of the document was to enable the client to make the necessary communications to obtain the legal advice they need, there is no reason to withhold privilege from 3P’s documentary communication

§

Finn J at [41]-[43] (cited favourably by Skandinaviska at [57]): Especially once we take into account the fact that modern legal advice is often sought for complex and technical matters, and the party seeking to obtain that advice may not have “the 10

aptitude, knowledge, skill, expertise or resources to make adequately, appropriately, or at all such communication to its legal advisor as necessary to obtain the advice required”, and demanding that a party must make his own communications or forego his privilege, thereby denying his ability to use a 3P to remedy his own inadequacy, disadvantages the party relative to another party who can make the desired communication on his own knowledge & resources •

E.g. Under the Wheeler model, if APBS or APBL had their own accounting department, they wouldn’t need PWC to communicate with D&N, and the very same information would be privileged

§

Significantly, it undercuts the privilege itself if the law incentivizes parties not to utilize services of 3P since it doesn’t facilitate •

Access to effective legal advice;

•

Effective communication with legal advisers for the purpose of obtaining legal advice

(2) SG POSITION •

The broader Australian approach will most likely be accepted in Singapore law if this issue arises, since the CoA has viewed the approach very favourably in Skandinaviska o

Especially for cases for cases of “large commercial frauds where the victims need expert advice not only to protect themselves from future frauds but also to determine the rights & liabilities in connection with the fraud” (at [62]) §

Arguably, while Skandinaviska was ultimately decided on the grounds of: •

LiPri – information provided by both D&N and PWC were protected by LiPri since the draft reports were made for the dominant purpose of litigation;

•

Redaction Principle – Info provided by PWC, even if non-privileged material, was material that formed the backdrop against which legal advice was based on, such that they were so inextricably intertwined with the report that they were also protected by LAPri

o

However, CoA did discuss Pratt at length, and in particular seemed to take into account the fact that modern business may require the client to look for “multidisciplinary advice from different professions”, and a broader approach would arguably be more practical and more in line with the realities of legal practice

o

Post-Skandinaviska, the position seems to be that the Balabel relevant legal context test still applies for LAPri in general, while the Pratt dominant purpose test (as opposed to the Wheeler conduit test) should be applied specifically in situations of 3P communication with lawyers. §

This is confirmed by the SAL Law Reform Committee on Legal Professional Privilege, which argued that the rule of law rationale as it applies to direct communications between lawyer & client should not be weakened by merely requiring that they have to be created for the dominant purpose of seeking & obtaining legal advice

§

The counterweight to too liberal an extension of LAPri in relation to 3P is the requirement that the communication concerned must be for the dominant purpose of giving legal advice (at [47])

11

•

Dominant purpose test – (a) what was the function of the expert advice and (b) was it really required to instruct the legal advisers fully (Stone J in Pratt, cited by Skandinaviska at [60])

•

E.g. in the case where the principal conducts himself in such a manner that indicates that the intended use of the 3P’s document was to advise & inform the principal on the subject matter, as opposed to being communicated to the legal adviser as the principal’s communication, then the less the principal acts as a conduit for the information and the more he filters, adapts, or exercises independent judgment in relation to what of the document is to be communicated to the legal advisor, the less likely it is that the document will be found to be privileged à more likely that the intended use of the document is to advise & inform the principal in making his own communication to the legal advisor

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Australia Facts

•

Client wants to restructure coy, hires lawyer. Lawyer instructs client to appoint an accountant to provide lawyer with info

•

Can we say that the accountant is acting on behalf of the client in communicating with the lawyer, therefore protecting accountant’s info to the lawyer under LAPri?

/held/

•

English position is that you must be an agent or a ‘conduit’, or else no privilege boi o

Even though if the report was prepared for an impending case – then LiPri would apply

o

Or if you had your own accounting department – you could argue they acted as your conduit

•

Problem is that the client can’t give the lawyer the info he needs, he requires the services of an accountant to get that info and numbers, and its clearly confidential AND helpful in allowing lawyer to advice on how best to restructure coy

•

Court said that there’s no reason someone w/o the knowledge or the reasons should be disadvantaged in this sense – test is whether the dominant purpose of asking 3P was to enable client to make communication necessary to get the legal advice it required

Skandinaviska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2006] 3 SLR(R) 441; [2007] 2 SLR(R) 367. Facts

•

•

X was finance manager of APBS o

Used name of APBS to obtain credit facilities & loans for 4 banks

o

Convicted of cheating

APBL (also the initials of the judge!), the parent coy of APBS, appointed a special committee made of D&N & PWC to investigate the matter o

•

PWC gives essential info to D&N on behalf of APBS

AT HC 12

o

Court found that PWC, although not a conduit, was acting on behalf of APBS

o

Even though it acted on own info, it wasn’t an agent, so communication wasn’t ‘by and on behalf of’ the client

•

CoA found this holding inconsistent with English authority that 3P must be an agent

/held/

•

S 128 & 131

•

S 128: ONLY APPLIES TO A&S, AND NOT TO THE CLIENT o

A&S may not: §

(1) Disclose any communication made to him by or on behalf of his client; or

§

(2) State the contents or condition of any document of which he has become ‘acquainted’; or

§ o

(3) Disclose any advice given by him to his client

If all of these events occurred ‘in the course & for the purpose of his employment as such A&S)

o

No explicit reference to ‘confidentiality’ as a necessary quality in communication to the lawyer, but it is implied that the nature of business involved in obtaining legal advice have the element of confidentiality

•

S 131: Complements s 128 by giving the full effect of legal advice privilege – APPLIES TO CLIENT, protects him from having to disclose to any other party any legal advice which he has obtained from his legal adviser o

Expressed to operate in the broader context of court proceedings, where the client may be called as a witness and may be compelled to disclose any communication the court deems necessary

o

This also extends the area of LAPri to the domain of LiPri – s 131 refers to a ‘legal professional adviser’, who need not necessarily be an A&S

•

LAPRI

•

Cited Three Rivers (No 5) – its ruling does not lay down a general principle that all communications between a coy & its legal advisers must be made by a specially appointed committee, or that no communication made by an employee to the coy’s legal adviser is privileged o

CoA held that the BIU, which was established to deal with inquiries and to seek & receive Freshfields’ advice, is the client, rather than any single officer, no matter how eminent he or she may be à only BIU was authorised to communicate with the Bank of England’s lawyers

o

Therefore any other communication with the solicitors was not authorised and is not protected by legal advice privilege

•

Issue is that when the client is a coy, a coy can only act through its employees, so any communications made by employees authorised to do so is a communication ‘ON BEHALF OF HIS CLIENT’

•

LAPri & LiPri

•

Several operational differences: LAPri

LiPri 13

•

Exists at any time a client seeks

•

legal advice from his solicitor,

Only exists when litigation exists or is contemplated

regardless of whether litigation is contemplated •

Applies

only

to

confidential

•

Applies to every communication

communications made for the

whether

purpose of selling legal advice

otherwise, as long as it is for the

à not just any communication

purpose of litigation

to the lawyer •

•

Therefore

•

applies

to

only

confidential

Therefore

can

or

include

communications

from

3P

communications by client or by

(regardless of whether they are

an agent employed to obtain

agents of the client) à CRITICAL

legal advice on behalf of the

DIFFERENCE

client

PRIVILEGES

à

would

stand

in

EXACTLY THE SAME POSITION

PLAY

AS THE CLIENT (citing Wheeler)

ROLES

Concerned confidential

with

protecting

•

communications

between lawyers & clients

BETWEEN BECAUSE

DIFFERENT

THE THEY

(CRITICAL)

Concerned with protecting info & materials created & collected for the

dominant

purpose

of

litigation •

However, there is one area of overlap between the two forms of privilege: Legal advice is frequently sought or given in connection with current & contemplated litigation, but can also be sought for purposes that have nothing to do with litigation

•

Therefore any advice that is sought or given in connection with litigation would fall into both categories (Lord Scott in Three Rivers No. 6)

•

Impacts on Modern Developments of LAPri

•

R/s with lawyers has changed – business is more complex nowadays, so clients need not just legal advice, but also ‘multi-disciplinary advice from different professions in many of the problems they face or encounter’ (at [47]). Lawyers may also be asked to give advice ‘(extending) to other fields of learning which go beyond what was traditionally legal advice’ o

Reflected in Balabel – Taylor LJ opened that there is a ‘continuum’ of communication & meetings between lawyer & client, and legal advice isn’t confined to one end of the continuum – i.e. just telling the client the law. It also includes advice as to what should prudently & sensibly be done in the relevant legal context

•

This complexity can be seen on the facts of the case – APB & APBS needed not only the advice of accountants, but also the advice of lawyers to determine the nature of the legal claims which would inevitably be made o

Resp now claiming legal advice privilege not just in context of its communications

with

solicitors,

but

also

in

the

context

of

communications rendered to it as a result of joint efforts of solicitors & accountants in investigating massive fraud by its financial controller o

So are PWC draft reports protected by LAPri? 14

•

Australian approach – Pratt Holdings o

Broader & more flexible approach à court held that the distinction between ‘communications via agent’s and ‘communications via 3Ps’ was an apparently arbitrary one §

If party had an appropriately qualified accounting staff which prepared the report for the lawyers – report protected by privilege

§

If they directed PWC to send report to the lawyers directly – protected privilege (agency)

§

But in this case, where the report went from accountant à party à lawyer – no privilege

o

Starting point should be what is the intended use of the document, which accounted for it being brought into existence, with focus on the purpose of the person who created the document

o

What’s important should not be the nature of the 3P’s r/s with the party, but THE NATURE OF THE FUNCTION IT PERFORMED FOR THAT PARTY. If the function was to enable the principal to make the communication necessary to obtain the legal advice it required à no reason to withhold privilege from 3P’s documentary communication §

Esp taking into account that advice today is sought for complex & technical matters, the party seeking to obtain legal advice may not have the aptitude, knowledge, skill, expertise, or resources to make adequately, appropriately or at all ‘all such communication to its legal adviser as necessary to obtain the advice required’

§

To deny a party the ability to use a 3P to remedy his own inadequacy unless he is prepared to forego privilege is a disadvantage, relative to someone else who can make this desired communication on his own knowledge & resources

o

It the undercuts the privilege itself if the law incentivizes parties not to utilize services of 3P since it doesn’t facilitate §

Access to effective legal advice;

§

Effective communication with legal advisers for the purpose of obtaining legal advice

o

However, although CoA favourably considered Pratt, neither party actually cited it, so it couldn’t be applied §

Essentially, modern business environment requires new rules – dominant purpose test (same as LiPri) à the dominant purpose is to get legal advice, LAPri applies

o

However, at [62], CoA opined that Pratt is suited to large commercial frauds – would it apply to other types of cases? §

Does it mean that it’s especially applicable to large commercial frauds, but should apply to all cases?

§

Still endorsed at [65] – dominant purpose test with regard to 3P communications as ‘an appropriate safeguard against an overly broad appn of LAPri’

§

Pinsler says there seems to be a different test for normal lawyer-client direct communication situation (legal context 15

test), and the Pratt situation (dominant purpose of legal advice test) o

Also authority for the fact that if communication includes info that forms the backdrop to mount the legal advice as to how Resp should mount the best defence against App’s claims (e.g. PWC reports containing parts that were just mere accounting info) à still privileged

o

This approach would not lead to an uncontrollable extension of privilege §

Client still has to prove the dominant purpose requirement, which can present difficulty •

E.g. advice as to commercially advantageous ways to structure a transaction is unlikely to attract privilege since the dominant purpose is independent of the need for legal advice

o

Looking at the facts if the case – (a) what was the function of the expert advice and (b) was it really required to instruct the legal advisers fully

•

Court cited with approval Pratt Holdings’ approach of substance rather form o

Esp for large commercial frauds where victims need expert evidence just to determine rights & liabilities connected with the fraud

o

In this case, Resp was seeking BOTH LEGAL & ACCOUNTING ADVICE when appointing PWC & D&N to report on the problem à issue is which is the dominant purpose?

•

LiPri

•

LiPri exists by virtue of CoLaw, and since s 131 clearly envisages LiPri, s 2(2) would apply to confirm the applicability of LiPri at CoLaw in the local context o

Cited Mariwu at [67]: there is no inconsistency between LiPri in CoLaw & s 128 and 131 read together

•

Elements o

[1] Threshold question – was litigation contemplated? §

Question is at the time client sought legal advice did he have THE PROSPECT OF LITIGATION in mind?

§

Generally accepted that a ‘reasonable prospect’ of litigation is sufficient to warrant privilege – no requirement that the chance of litigation must be higher than 50%

o

[2] Purpose for which legal advice had been sought? §

If its just ‘in anticipation or contemplation of legal proceedings’, then no problem

§

However, in cases where there is more than one purpose of seeking legal advice, must prove that the dominant purpose for which legal advice was sought & obtained was the anticipation or contemplation of litigation (cited Waugh at [75], previously endorsed locally in Brink’s)

•

Rule App

•

Dominant purpose of the reports was in aid of litigation o

Facts of the case support the finding that both legal & accounting advice 16

was foremost in minds of the directors of the respondent à or else no point in appointing D&N to undertake jointly with PWC o

Inquiry not just into quantifying the financial impact of all the unauthorised transaction, but also their nature & the circumstances in which they occurred

o

In fact, given the huge unauthorised loans that Respondent would be called upon to repay, its just unarguable that Respondent would not have concluded that litigation was bound to occur by the time it appointed PWC & D&N to investigate the unauthorised loans

•

Depends on the ‘factual matrix’ of the case (at [95]) o

If a report is made as a matter of routine and not with reference to liti at all – obviously not privileged;

o

However, the fact that a report may lead to factual findings is not terminal to the party’s case since what is legally material is the purpose for which the factual findings were to be used

(3) EVALUATING PRATT •

Skandinaviska recognised that the evolution of lawyering due to the changing nature & scope of legal advice in the modern context called for a more flexible approach. o

Considering the increased complexity in corporate structures and agreements, legal knowledge and skills required by lawyers is significantly more complex

o

Nature of the advice that lawyers are asked to give may extend to other fields of learning and other professions

•

It would be unfair to demand that a party make his own communications or forego his privilege, thereby denying his ability to use a 3P to remedy his own inadequacy, and disadvantaging the party relative to another party who can make the desired communication on his own knowledge & resources (Pratt)

•

This ultimately undercuts LAPri itself because this would not facilitate access to effective communication with legal advisors or obtaining legal advice

•

Finally, the risk of abuse is exaggerated, and curbed by the ‘dominant purpose’ test (Skandinaviska) o

The counterweight to too liberal an extension of doctrine vís-à-vís 3Ps is the requirement that the communication concerned to be for the dominant purpose of giving legal advice

•

Arguments against the Pratt approach in SG

•

Pratt approach is inconsistent with the wording of s 128 o

Pinsler argues that the wording of s 128 clearly does not cover the situation where 3P provides separate information in a capacity independent of the client such as Pratt or Skandinaviska

o •

‘By and on behalf of client’ clearly accord with the traditional model in Wheeler

Pratt is inconsistent with the candour rationale o

Pinsler argues that even if information from 3Ps may assist clients in obtaining more effective legal advice, that does not necessarily it deserves the same protection as solicitorclient communications

o

LAPri exists because the law acknowledges that the need to encourage candid communications between the lawyer & his legal advisor may outweigh the competing 17

public interest of ensuring the court has available all relevant evidence, but the same cannot be said in favour of 3P-lawyer communications §

3P does not have to be encouraged to be candid in its provisions of this information since 3P is normally paid for this purpose

§

The case of protection of 3P communications is therefore relatively weaker than that for the client’s direct communication to his lawyer, which, but for the privilege, would never have been made •

In fact, confidentiality has already been eroded to some extent by 3P’s involvement

o

As per Chin Teck Yung, Extending the Scope of LAPri, the candour rationale does not work in corporate environments in the sense that corporations work in a regulated regime, where it isn’t privilege that encourages full disclosure, but statutory obligations & even possibly individual risks of liability & penalty imposed on company staff §

Corporate clients will be candid with their legal advisors regardless of privilege, because the potential costs of withholding info is far more likely greater than any disadvantage flowing from the risk that communicated will be later divulged

•

Practical difficulties with application

•

Difficult to really ascertain what the dominant purpose of a report is, especially if its prepared by several employees & independent contractors o

May involve an element of artificiality in defining what ‘dominant’ is à CoA in Skandinaviska conceded that the exercise ‘may be difficult, but not more so than many questions that come before courts’ (citing Pratt at [60])

o

Is it really less artificial than distinguishing agents as conduits or those who provide information

•

Difficult to ascertain anyone’s state of mind o

Your question really is whether the client has uppermost in his mind the seeking of legal advice when he made the communication or caused it to be made, which isn’t an easy fact to ascertain even in the best of circumstances

•

Encourages corporate misconduct

•

Increases zones of secrecy in opposition of open discovery rules – may allows lawyers to be roped in to creating ‘facades to achieve secrecy’, and engineering circumstances to make it appear as though the dominant purpose of a communication was legal advice o

Creates a potential for pulling a blanket of privilege over an ever-increasing range of internal records & memoranda

(4) ALTERNATIVES TO PRATT •

Chinty

•

Suggests a ‘but-for’ test coupled with a finding that the lawyer acted in a relevant legal context (Balabel) à Pf must show that but for the purpose of obtaining legal advice, the document would not have been produced whether by client himself or by 3P on the client’s authorisation o

‘But for’ more certain than dominant purpose

o

Courts also could use their powers of inspection under s 164, or their powers of redaction (Skandinaviska) when claims of privilege appear overblown or exaggerated.

•

HHL

•

Suggests a more principled approach by narrowing advice privilege coupled with a larger role for the law of confidentiality 18

o

Candour rationale should be abandoned §

Arguing that encouraging candour allows lawyer to represent the client more effectively doesn’t explain why we don’t extend professional privilege to doctors or priests

§

Secondly and more importantly, just because the client is more candid doesn’t actually advance the court’s search for truth, right? à Because even if the client is candid and reveals everything to his lawyer, its not like the lawyer can tell the court – COURT STILL HAS THE SAME AMOUNT OF EVIDENCE

§

Also misguided to think that lawyers can stop their clients from embarking on wrongful acts that have been communicated – the most the lawyer can do is withdraw his services, doesn’t really stop anyone

o

HHL argues instead that LPP exists because the administration of justice loses its integrity by forcing the lawyer to speak or act against the client §

Client has a right to legal representation because the legal system was responsible for drawing him into the legal process, and drawing him involuntarily into a state of dependency on legal representation

§

And since the legal system therefore must give him a right to representation compelling a lawyer to give advice against his client is compelling him to betray his role as representative

§

This is why privilege doesn’t apply to doctors or priests à they were never given the role as the client’s legal representative, and there’s no loss of integrity on the legal process by compelling them to disclose against their ‘clients’ (Patients? Parishioners?) Any professional communications

o

HHL thinks LLP should be limited therefore to LiPri (connected to being legal representative), and LAPri should fall under the less rigid realm of confidentiality law.

F. Client’s Perspective – s 131 of the EA

(1) ROLE OF S 131 •

S 131 – Confidential communications with legal advisers

•

131.—(1) 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.

•

(2) In subsection (1) and section 129, “legal professional adviser” means — o

(a) an advocate or solicitor; or

o

(b) in the case of any communication which has taken place between any officer or employee of an entity and a legal counsel employed, or deemed under section 128A(4) or (5) to be employed, by the entity in the course and for the purpose of seeking his legal advice as such legal counsel, that legal counsel.

•

Effect of s 131 o

S 131 essentially mirrors s 128 §

LAPri protects the client from having to disclose to any party any legal advice which he has obtained from his legal adviser

19

§

LAPri is a right that the client can assert or waive, such that the client cannot be compelled to disclose communications

o

Therefore s 131 read together with s 128 give full effect to LAPri (Skandinaviska at [33])

(2) APPLICABILITY OF PRIVILEGE TO AN ADVISER WHO IS NOT AN ADVOCATE OR SOLICITOR •

Previous statutory position

•

A&S’ in s 128(1) v. ‘Legal professional adviser’ in s 131 o

If read literally, this means that client doesn’t have to disclose anything even if he was just a legal professional adviser, but a legal professional advisor can just be compelled to reveal things because he’s not an A&S à client loses out

o

Position is that privilege has been extended to all legal advisers – s 128A applies s 128(1) to legal counsel of entities

•

S 128A – Communications with legal counsel in entity o

128A.—(1) A legal counsel in an entity shall not at any time be permitted, except with the entity’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal counsel, 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 employment as such legal counsel, or to disclose any legal advice given by him to the entity, or to any officer or employee of the entity, in the course and for the purpose of such employment.

•

S 131(2) which defines ‘legal professional adviser’ includes both A&S (defined in s 3(6)) and legal counsel of an entity (defined in s 3(7))

•

Are foreign lawyers covered by privilege as well?

•

Common law rules apply to foreign lawyers insofar as they are not inconsistent with provisions of the EA à the common law position, which extends privilege to communications between the client and the foreign legal adviser applies in SG (CIFG Special Assets) CIFG Special Assets Capital I Ltd v Polimet Pte Ltd [2015] SGHC 325 /held/

•

[1] Which law applies to govern the issue of legal professional privilege as between parties & Mr Yip, bearing in mind he is a Malaysian lawyer, and most of the communications took place in M’sia o

Starting point is whether legal professional privilege is a matter of procedure or substance – §

o

Procedural matters are always governed by the law of the forum (SG);

However, the test of whether something is substance or procedure is to distinguish the existence of a right (substantive) from the enforcement of a right (procedural) §

This is the traditional broader approach as cited in Star City – ask whether the rule in question is one that affects the existence of the right or its enforcement (at [40])

§

Considering foreign authorities, it suggests that legal professional privilege is a matter to be addressed by the law of the forum (at [56])

§

Citing Besanko J in Stewart – while the issue of privilege is linked to

20

the contract between a lawyer & his client, it inevitably is dictated by and subject to, in the statute or designated legislation based on considerations relevant to the administration of justice à turns on public policy considerations that find expression in the law of the forum •

[2] SG Rules on legal professional privilege o

Legal professional privilege is statutorily embodied in s 128 & 131 of the EA – provisions cover LAPri and an element of LIPri (Skandinaviska) §

Apply to communications between clients and A&S of the Supreme Court of SG, or a legal counsel as defined by s 3(7)

§

However, this doesn’t cover foreign lawyers à communications with foreign lawyers therefore fall outside the ambit of statutory privilege

§

BUT – EA ONLY EXHAUSTIVE TO THE EXTENT THAT ALL RULES NOT SAVED BY THE STATUTE WHICH ARE INCONSISTENT WITH THE EA ARE INAPPLICABLE (Phyllis Tan)

o

So even though LPP is codified, CoLaw rules of privilege still apply to foreign lawyers insofar as they are not inconsistent with provisions of the EA

o

Even though one of the 2012 amendments concerned ‘extending’ the EA so that LPP covers communications with in-house counsel for the purposes of obtaining legal advice, there was no intention on Parliament’s part to affect the CoLaw position regarding LPP between foreign lawyers & local clients §

Accepted even during the debates that law of evidence comprised of EA and CoLaw rules, at least where the latter were not inconsistent with statutory provisions (at [60])

§

Parliament’s extension did not mean they intended to make affirmative that communications with foreign lawyers was not protected

o

Citing IBM v Phoenix - Correct approach is to look at the substance & reality of the documents, the circumstance in which it came into existence, and also its purpose

o

Citing Kennedy v Wallace – members of the community may need to seek the assistance of foreign lawyers considering the multiplicity & complexity of the demands of the modern state on its citizens, the complexity of modern commercial life, and increasing inter-relationships of legal systems §

The purpose & rationale of privilege is enabling persons in a civilized complex modern society to be able to conduct their affairs with the assistance of legal advice. Refusing to recognise foreign lawyer’s advice privilege undermines the rationale of the privilege,

§

Finally, part of the practical guarantee of the fundamental HR and the practical worth of the fundamental CoLaw privilege is the right to seek advice from a lawyer as to one’s rights & privilege in this complex environment

o

Court therefore accepted that the CoLaw position which extends privilege to communications between client & foreign legal advisor applies in SG

21

G. Exceptions to Privilege •

•

Exceptions to Privilege consist of: o

Express Consent (s 128(1), s 128A(1))

o

Waiver (s 130, s 131)

o

Illegal Purpose (s 128(2)(a), s 128A(2)(a))

o

Crime or fraud (s 128(2)(b), s 128A(2)(b))

Additional exceptions for in-house counsels: o

Any communication made to the legal counsel not for the purpose of seeking his legal advice – S 128A(2)(c);

o

Any document which the legal counsel was acquainted with otherwise than in the course of and for the purpose of seeking his legal advice – s 128A(2)(d) §

Rationale – this ensures that LAPri is restricted to communications directly concerned with legal advice, and is a necessary emphasis because a legal counsel is a salaried employee working for the entity, and would have communications with the entity not directly related to legal advice

§

Could this be a problematic provision – would this apply instead of Balabel? Or are they the same thing?

(1) EXPRESS CONSENT – S 128(1) & S 128A(1) •

Professional communications

•

128.—(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.

•

Communications with legal counsel in entity

•

128A.—(1) A legal counsel in an entity shall not at any time be permitted, except with the entity’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal counsel, 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 employment as such legal counsel, or to disclose any legal advice given by him to the entity, or to any officer or employee of the entity, in the course and for the purpose of such employment.

•

Since the provision is silent on the form of consent, Pinsler argues that consent may be expressed in whatever manner the client chooses o

However, if several parties jointly retain a lawyer, privilege can only be waived if all the parties agree to do so (Gelatissimo)

o

Difference is that you never intentionally waived privilege – but have you lost it in any way?

(2) IMPLIED WAIVER – S 130 & S 131(1) •

Privilege not waived by volunteering evidence

22

•

130.—(1) If any party to a suit gives evidence therein at his own instance or otherwise, he shall NOT be deemed to have consented thereby to such disclosure as is mentioned in section 128 or 128A.

•

(2) If any party to a suit or proceeding calls any advocate or solicitor as a witness, that party shall be deemed to have consented to such disclosure as is mentioned in section 128 only if that party questions the advocate or solicitor on matters which but for the question the advocate or solicitor would not be at liberty to disclose.

•

(3) If any party to a suit or proceeding calls any legal counsel in an entity as a witness, that party shall be deemed to have consented to such disclosure as is mentioned in section 128A only if that party questions the legal counsel on matters which but for the question the legal counsel would not be at liberty to disclose.

•

Confidential communications with legal advisers

•

131.—(1) 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.

•

Effect of the Provisions: o

S 130 & 131(1) provide for waiver in specific circumstances §

S 130(2) – client calling lawyer as a witness and questioning him on any matter protected by privilege;

§

S 130(3) – client calling an in-house counsel as a witness and questioning him on any matter protected by privilege;

§

S 131 – privilege may be lost if he voluntarily offers himself as a witness, as he may be compelled to disclose privileged communications that are necessary to explain any evidence that he has given

§

s 130(1) isn’t a waiver – provides that if the client merely gives evidence, this would not be deemed a waiver of the client’s privilege

•

Rationale o

With an implied waiver, even though the possessor of the privilege has not evinced an intention to waive his privilege, fairness & consistency demands that the full advice be made available (ARX at [52])

o

Prevents a party from voluntarily putting privileged material before the court, and then relying on the advantageous aspects of it to advance his case but claiming privilege in respect of other less advantageous aspects of the documents for fear that it may damage his case §

Unfairness arises from the inconsistency of a posited act and the subsequent maintenance of privilege, thereby implying a remedy

(3) ILLEGAL PURPOSE – S 128(2)(A) & S 128A(2)(A) •

Professional communications

•

128.— (2) Nothing in this section shall protect from disclosure — o

(a) any such communication made in furtherance of any illegal purpose; 23

•

Illustrations o

(a) A, a client, says to B, a solicitor: “I have committed forgery and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure.

o

(b) A, a client, says to B, a solicitor: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication being made in furtherance of a criminal purpose is not protected from disclosure.

•

Communications with legal counsel in entity

•

128A.— (2) Nothing in subsection (1) shall protect from disclosure —

•

Scope of the Exception

•

Does the illegal purpose cover solely criminal wrongs, or does it also encompass civil wrongs?

•

The court held that under s 128(2), LAPri can only be overridden in cases of fraud and crime

•

Gelatissimo at [63]-[64]: While there is no judicial consensus on the exact ingredients of fraud, it

o

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

would clearly include all forms of civil and criminal frauds •

The difficulty occurs when we move away from the core of the word ‘fraud’ and into the penumbra – where reasonable disagreement may exist as to whether a particular purpose amounts sufficiently to fraud such that privilege ought not to be attached to communications made in furtherance of it

•

As per Gelatissimo, for such ‘penumbra’ cases, a multi-factorial approach should be applied à the approach takes into consideration o

Public policy considerations that militate against the purpose for which the legal advice was given; §

Factors: •

Dishonesty – the court must evaluate the importance of preventing the achievement of the purpose for which the legal advice or communication was given o

E.g. The seriousness of the practical consequences if the allegedly iniquitous purpose succeeds;

o

Whether the victim may suffer losses akin to those suffered by victims of criminal or civil fraud

•

The importance of preserving legal privilege in the particular case o

Prima facie, the policy of upholding the privilege is stronger if the privilege sought to be protected consists of both LiPri & LAPri

o

Claim to privilege will also generally be stronger when the conduct of the claimant is itself an issue in the proceedings rather than being a separate and distinct factor

•

The extent to which the party seeking to lift privilege is able to show that privileged communications were made as part of an ongoing fraud o

Party opposing the privilege must adduce at least some prima facie evidence concerning the claimant’s improper conduct because they are effectively asking the court to deprive their counterparty of a right he is prima facie entitled to, based on incomplete evidence

o

While the court acknowledged that there would be a lower standard of proof the more the alleged fraud is closer in nature to 24

the core/traditional fraud cases, the risk that the allegation is unfounded must be balanced with the risk that failing to lift the privilege furthers the fraud o

Whether the purpose is sufficiently iniquitous that it can be classified as ‘fraud’ under s 128(2) à therefore it is not enough to show a compelling interest in favour of lifting privilege, there must still be some wrongdoing or iniquity attached to the communication (at [66])

o

This applies to LiPri as well, because since LiPri exists in SG in s 131 by virtue of the common law, it is also subject to the common law exceptions (at [67]) §

Furthermore, since both legal professional privileges do stem from the same public policy interest of facilitating justice for non-legally trained persons, one privilege should not be broader than the other, and they should be subject to the same exceptions

•

Application of the factors: o

Email thread protected by both LPPs

o

Making false statement in affidavit to support pre-discovery application is a serious misconduct, but any practical consequences are not as severe as those arising from traditional frauds – even if Df’s application fails, it still will be paid in costs, and the order doesn’t prejudice its chances at trial

o

Additionally, issue of whether the affidavit contained a false statement is precisely the issue that had to be determined at interlocs à if you lift privilege because you think Y is lying, that’s tantamount to judging the pre-action discovery itself

•

PINSLER DOES NOT LIKE THIS CASE

•

The court conflated both exceptions under s 128(2)(a) & (b) because the case held that both limbs encompassed both criminal & civil fraud o

Both exceptions should be interpreted & applied separately because they consider two very different situations

o

Additionally, limb (b) is irrelevant to the facts of Gelatissimo because it only operates when a crime or fraud has been committed by the client since the engagement of his lawyer

o

Finally, we aren’t sure if limb (b) even extends beyond criminal fraud – considering (a), (b) doesn’t refer to criminal fraud, but since limb (b) is primarily concerned with unlawful creation or modification of documents, ‘fraud’ here is arguably just a subset of the word ‘crime’

•

The penumbra extension isn’t even in the terminology of the section o

HC failed to examine whether the extension of fraud to include mere improper (but iniquitous conduct) is consistent with the wording of s 128(2), despite the fact that under s 2(2), common law authorities can only be applied to they extent that they are consistent with the statute

o

Especially an issue considering the terminology of the provision is arguably not flexible enough to compartmentalize fraud into ‘core’ and ‘penumbra’ fraud

•

It is artificial to consider only the interests underlying the prevention of fraud, and not the other interests which compete with privilege in the absence of any issues of conduct o

E.g. In situations where the court arguably needs full access to all relevant documents to defend the Accused in the face of strict MDA presumptions

•

Finally, Gelatissimo is a pre-trial case, and it is still unclear whether the EA applies to pre-trial issues 25

o

Also Pinsler’s last point (which you can’t use in the exam because its unpublished) is that the sentence was ‘all this gobbledygook I dig up, I will feed to the press’, which is really neither legal advice nor relevant to litigation à privilege shouldn’t even have been triggered in the first place

(4) INADVERTANT DISCLOSURE •

RULE

•

Even though a document is privileged, once the privileged document is disclosed, the privilege ceases and the other party may adduce secondary evidence of the contents of the document (Calcraft v Guest), regardless of whether the documents were obtained by improper or even criminal means (Lord Ashburton v Pape) o

Rationale – LAPri is a procedural rule of immunity rather than an evidentiary rule of the inadmissibility, and therefore can actually be surrendered by accident à as long as its relevant it is admissible

•

EXCEPTIONS o

Discretion to exclude advice – inherent in court’s jurisdiction to exclude relevant evidence if: §

Prejudicial effect outweighs probative value at trial (Kadar);

§

On the grounds that evidence was obtained through procedural irregularities (Dahalan);

§

Obtained through entrapment (Rayney Wong (HC));

§

Illegally obtained (SM Summit) •

o

None of them cover “I accidentally emailed the wrong side”

Injunctions – as long as the injunction was applied for before the document has been presented & relied on in court §

A party asserting privilege on the documents may apply for an injunction to prevent copied from being adduced, if he does so before the copies have been adduced or otherwise relied on at trial (Kennedy LJ in Lord Ashburton) •

The fact that privileged documents are admissible does not affect the court’s equitable jurisdiction to grant an injunction and restrain disclosure of the documents, on the basis that they contain confidential information that has been obtained (Wee Shuo Woon)

•

This injunction is based on the fact that there has been a breach of confidence thereby justifying the protection of the document

§

Conditions for injunction: •

Document has not yet been entered into evidence à if it has become part of the record in court proceedings, then its exclusion is governed by the common law rules of evidence;

•

As an equitable remedy, the court has the discretion in deciding whether or not to restrain the use of privileged documents as per equitable principles (e.g. clean hands etc.)

•

There still is a point in enforcing the duty of confidence (Wee Shuo Woon): o

Information was in the public domain – was on the internet;

o

Pf had a compelling reason to protect the information since he was a victim of cybercrime

o

SG position as affirmed in Wee Shuo Woon and Mykotowych: 26

§

The fact that a document is privileged and then inadvertently released is not a bar to admissibility

§

But when the document is already in the possession of the other party, the issue isn’t about privilege & withholding disclosure, but about admissibility •

The question in equity is therefore whether the document should be admitted, regardless of the fact that it is admissible – equity may, through the granting of injunctions, intervene to prevent the unauthorised use in court proceedings of information contained in privileged material which would in most instances, be of a confidential nature

§

Conflict on the area of law is regarding whether evidence that is protected by privilege but has come into possession of the other party should be admitted •

Calcraft – secondary evidence in the form of copies of the contents of documents protected by privilege were admissible even though the originals were privileged

•

Lord Ashburton – the fact that the documents were admissible (which it viewed as the effect of Calcraft) did not affect the court’s equitable jurisdiction to grant an injunction to order the delivery of the documents or to restrain the publication or copying of the documents on the basis that they contained confidential info that was improperly obtained

•

Webster and Goddard attempt to reconcile the cases – Scott J in Webster held that the two cases involved ‘two independent & freestanding principles of jurisprudence’, with Calcraft dealing with privileged documents & the scope of protection provided by LPP, while Lord Ashburton deals with confidential documents and the protection equity provides such documents o

When a document passes into the hands of some other party to the action, then prima facie the benefit of the privilege is lost. Other party has in his hands evidence, which, pursuant to Calcraft, can be used in trial.

o

However, the privileged document will almost invariably contain confidential info, which is eligible for protection against unauthorised disclosure or use.

o •

(Similar observations were made in Goddard)

Same position adopted locally in Tentat – at [34] & [39], a party in possession of a privileged document was entitled to adduce copies of that document as secondary evidence subject to the right of the person claiming privilege to apply to restrain the use of the document PRIOR to its presentation in court as evidence & its introduction into the public domain o

Gelatissimo cited Kan J’s observations in Tentat and held that Tentat “rejected the principles stated in Calcraft in favour of a protective attitude” and therefore the position in Calcraft consequently no longer applies to the law of privilege in Singapore – however, Mykytowych rejects this holding and argues that this wasn’t the position taken in Tentat

27

o

WSW corrected that the principle of Calcraft was part of the law of evidence and related to the scope of protected offered by LPP, while Lord Ashburton comes under the law of confidentiality and affords protection to confidential information via equity

o

Court in Mykytowych held that the cases involve different principles but agree that it is not entirely satisfactory that the question of whether privileged documents will be admitted should depend on when, in the course of litigation, applications are brought & steps are taken to restrain their use

HT S.R.L. v Wee Shuo Woon [2016] SGHC 15. Facts

•

Pf’s computer systems were hacked by 3P, info obtained from the systems were uploaded onto the Internet – included privileged & confidential emails between Pf & solicitors pertaining to the pending suit

•

Df accessed the emails & sought to rely on its contents to strike out the bulk of Pf’s claims o

Pf applied to have emails expunged from Df’s affidavits in support of the striking out action

/held/

•

Court held that the CoLaw rules on LPP applied to affidavits filed in interlocs which precede a trial such as a striking out action

•

On the issue of expunging the emails, court was clear that admissibility & privilege are distinct concepts o

The fact that a privileged document is admissible in evidence doesn’t actually affect the court’s equitable jurisdiction to grant an injunction to restrain their disclosure on the basis that they contain confidential info that has been improperly obtained

o

Party just has to apply for an injunction before evidence is ‘used’ à ‘use’ refers to info becoming part of the record in any court proceedings §

Injunction is based on the law of confidentiality;

§

However, once the documents have entered into evidence, their exclusion is governed by CoLaw rules of evidence

o

In this case, since the hearing for the striking out had not yet taken place, emails not formally admitted into evidence à emails had not been ‘used’

•

On the issue of whether the emails published on the Internet are still protected by confidentiality:o

Duty of confidentiality is subject to the limitation that ‘confidentiality only applies to info to the extent it is confidential’

o

So once something is in the public domain, principle of confidentiality generally has no application §

However, ‘public domain’ is not a test, its just one factor impacting the scope of the duty of confidentiality

§

The test is rather whether there is still a point in enforcing the obligation of confidence

o

On the facts of the case the imposition of an obligation of confidence remained just & reasonable even though the info was online – ‘public domain’ §

Pf had a compelling interest in restraining use of the emails à to prevent 28

privileged & confidential info from his solicitor from being used against him §

Pf was victim of a cybercrime he had not waived his privilege in the documents

§ o

Df knew all of this, but used the emails anyway

Therefore the preservation of LPP here prevails over the public interest of having maximum relevant material available to court – court did not have discretion to refuse relief unless there are other reasons affecting the granting of an equitable remedy

Mykytowych, Pamela Jane v V I P Hotel [2016] SGCA 44. /held/

•

Resp submitted that Dr Tay’s medical report is inadmissible because it is covered by LiPri o

Not legally correct – conflates distinct concepts of admissibility, privilege & confidentiality

o

Privilege §

Allows party to withhold disclosure of info which would otherwise be compulsory to disclose

o

Admissibility §

Relates to question of whether a piece of evidence may be received by the court – which is governed by whether that piece of evidence is relevant to the matters in issue

o

On the facts of the case, the medical report is already in possession of the other party – issue is no longer whether you can withhold disclosure, but one of whether its admissible §

Only way privilege is relevant is if you can show that the report shouldn’t be admitted and argue in favour of the court making use of its equitable jurisdiction to restrain breaches in confidence

•

Conflicting approaches o

Calcraft – secondary evidence (in the form of copies) of the contents of documents protected by privilege are admissible even though originals were privileged

o

Lord Ashburton – the fact that documents may be admissible doesn’t affect the court’s equitable jurisdiction to grant an injunction to order the delivery up of the documents or to restrain the publication or copying of documents on the basis that they contained confidential info that had been improperly obtained

o

Webster looks at them as two different principles of jurisprudence – Calcraft deals with privileged docs & the scope of protection of LPP, and Lord Ashburton deals with confidential documents and the protection equity will provide such documents §

When a document passes into the hands of some other party to the action, then prima facie the benefit of the privilege is lost. Other party has in his hands evidence, which, pursuant to Calcraft, can be used in trial.

§

However,

the

privileged

document

will

almost

invariably

contain

confidential info, which is eligible for protection against unauthorised disclosure or use o

This is the approach SG law agrees on as well – although the court concedes that 29

it is not entirely satisfactory that the question of whether privileged documents will be admitted depends on whether, during the course of litigation, applications are brought, and steps are taken to restrain their use

3. LITIGATION PRIVILEGE A. Definition, Rationale and Scope •

Litigation privilege (LiPri) 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 (Ventouris v Mountain)

•

Rationale Main objective is ensuring the efficacy of the adversarial process & administration of justice

o

by maintaining the confidentiality of the legal adviser’s strategy in litigation & preparation of the case and preserving the autonomy of the parties to prepare & strategise their cases free from prying eyes •

Scope Only applies where litigation exists or is contemplated;

o

Applies to every communication whether confidential or otherwise, as long as it is for the

o

purpose of litigation, and therefore can include communications from 3P (regardless of whether they are agents of the client) Can also overlap with LAPri in the situation where the client’s lawyer or legal adviser

o

provides advice or information regarding pending or contemplated litigation – e.g. a written opinion on the likely outcome of proceedings in court Ventouris v Mountain [1991] 1 WLR 607 (CA) Facts

•

Pf sought an order for Df to produce a better list of the documents which were in his possession

•

Df resisted the application & claimed that the documents which had not previously been in his possession and had not been created for the purpose of litigation, but had been obtained by solicitors for this purpose, were subject to LPP

•

ISSUE: Whether LPP can be claimed for original documents which were not previously in the possession of a party to the actual or contemplated litigation, and had not been created for the purpose of the litigation, but which had been obtained by solicitors for the purpose

30

/held/

Bingham LJ: Privilege does not cover any original document even if it was obtained by a

•

party to the litigation or his legal adviser, for the purposes of litigation if the document did not come into existence for the purposes of litigation o

At law, disclosure of relevant evidence is generally considered beneficial, so any exception must be justified as serving the public interests that give rise to the exception

o

In this case, hard to see how the rights of a potential litigant to seek & obtain legal advice and conduct his proceedings under a seal confidence would be infringed if a party is obliged to produce original documents in existence before litigation was in the air, which a litigant obtained from a 3P for the purposes of litigation but the 3P himself could actually be compelled to produce at trial without any possible ground of exception

B. Compatibility of LiPri in the EA •

Confidential communications with legal advisers

•

131.—(1) 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.

•

Effect of Provision

•

The common law doctrine of LiPri is compatible with s 131 of the EA (Skandinaviska at [67]) o

Since s 131 clearly envisages the concept of litigation privilege, there is no inconsistency between the common law & the statutory provisions

o

Accordingly, s 2(2) would apply to confirm the applicability of common law litigation privilege in the local context as there is no inconsistency between litigation privilege in common law and s 128 & 131 read together (citing Mariwu Industrial)

o

Pinsler argues that actually, s 131 appears to solely be concerned with the issue of whether the witness is compellable to answer questions in court relating to information over which he claims legal privilege – can we really say its not inconsistent with LiPri?

(1) APPROACH TO LIPRI •

While LAPri should arguably have an absolute status, Pinsler argues that the nature of LiPri is not absolute o

This is why a lawyer cannot disclose anything without client’s permission under LAPri, but LiPri doesn’t actually prevent opposing party from calling 3P as witness to give evidence of his factual finding

o

Pinsler therefore argues that LiPri should be subject to a balancing operation to determine whether privilege should override the interest of the counterparty

C. Test for LiPri •

As per Skandinaviska: 31

[1] Is there a reasonable prospect of litigation?

o

It is generally accepted that a ‘reasonable prospect’ of litigation is sufficient to

§

warrant LiPri, and there is no requirement that the chance of litigation occurring must be 50% or higher •

If we required anything less than ‘reasonable prospect’ à LiPri would be ‘too readily invoked, diluting the connection on the basis of the privilege in the need for parties to prepare for proceedings’

•

However, anything more than a ‘reasonable prospect’à ignores reality that decisions are contingent on many factors, and its just not possible to determine with certainty before the fact whether litigation should be pursued

•

Between ‘small chance’ and ‘50%’, what must be shown is that there is some possibility which is objectively probable (ARW)

Instead, the question is whether the client had the prospect of litigation in mind at

§

the time he sought legal advice or consulted his lawyer Citing USA v Philip Morris Inc at [72]:

§

•

Insufficient for there to just have been a ‘mere possibility’ of litigation, a ‘distinct possibility that sooner or later someone might make a claim’, or a ‘general apprehension of future litigation’

[2] Was litigation the dominant purpose for which the legal advice was sought?

o

If the advice was sought purely in anticipation and contemplation of legal

§

proceedings, the privilege clearly applies However, in cases where the client had more than one purpose in seeking legal

§

advice, he must prove that the dominant purpose for which legal advice was sought and obtained was the anticipation or contemplation of litigation (citing Waugh at [75]) •

Therefore in a case where the litigation purpose was not dominant and was merely one of the several ‘equal’ purposes behind a document, the document would not attract LiPri (Waugh)

•

Litigation has to be the primary objective, and if another course of action, such as a regulatory determination, is interposed, it can rarely be said that primary objective is litigation (ARW)

It is trite that the question of dominant purpose is to be determined AT THE TIME

§

when the documents were created (at [97]) The court will consider all aspects of the case to make this determination,

§

including the state of mind of the entity/person who commissions the creation of the document, and the state of mind of the 3P (Brink’s) Waugh v British Railways Board [1980] 1 AC 521 (HL) Facts

•

Pf’s husband was employed by the Df and died in an accident during work o

Df’s practice is that when an accident occurs, reports would be made and sent to the board’s solicitors so they could advise the board on its legal liability

o

Pf brought action against Df and sought discovery of the reports

o

Board refused to disclose report on the grounds that one of the principal purposes of preparing the report was so that it could be passed to the solicitor so he could 32

advise the board, and if necessary, conduct defence to the proceedings, therefore making it subject to LPP /held/

•

As per Lord Simon of Glaisdale: the dominant purpose test represents the intermediate line between the equally important interests of [1] ensuring relevant evidence is presented to the court, and [2] ensuring the effectiveness of adversarial proceedings o

So for that important public interest to be overridden by a claim of privilege, the purpose of submission to the party’s legal advisers must at least be dominantly for the anticipation of litigation

o

However, on the facts, the purpose of obtaining legal advice was both for obtaining advice on railway operation and safety and in anticipation of litigation, with both purposes having equal rank and wright à board’s claim had failed

Brink’s Inc v Singapore Airlines Ltd [1998] 2 SLR(R) 372 (CA) Facts

•

Robbery case – gold bars escorted by Pf were stolen from a cargo room, where it was received by Df, who then shipped the bars

/held/

•

Df commissioned a report of investigations, which Pf sought discovery of

•

Court applied the Waugh dominant purpose test – ascertaining dominant purpose not only by reference to the intention of the actual composer of the report, but by an objective view of the whole of the evidence, particularly by reference to the intention of the party who procured its genesis o

Presently, Df initiated the report by requesting that their insurers make such a report, so insurers appointed the firm GM §

However, there was insufficient eviedence that the report was specifically commissioned to aid the lawyer in providing legal advice

o

Df also tried to argue that due to the size of the loss and the fact that it was caused by robbery, Df believed that litigation was a reasonable prospect – court said that the consideration was then whether on the facts, the value of the gold bars stolen could elevate an average possibility of a claim to the level that litigation was a reasonable prospect

o

On the facts of the case, this point did not have to be considered since the fact that it had been two months after the accident and no claim was made showed that there was no reasonable expectation of litigation

Skandinaviska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR(R) 367 (CA) /held/

•

Rule App

•

Dominant purpose of the reports was in aid of litigation o

Facts of the case support the finding that both legal & accounting advice was foremost in minds of the directors of the respondent à or else no point in appointing D&N to undertake jointly with PWC

o

Inquiry not just into quantifying the financial impact of all the unauthorised 33

transaction, but also their nature & the circumstances in which they occurred o

When being informed of the fraud, there was an immediate & urgent response from APBS to take all necessary actions to uncover the extent of X’s fraud in order to determine its financial impact on APBL’s business

o

In fact, given the huge unauthorised loans that Respondent would be called upon to repay, its just unarguable that Respondent would not have concluded that litigation was bound to occur by the time it appointed PWC & D&N to investigate the unauthorised loans

•

Depends on the ‘factual matrix’ of the case (at [95]) o

If a report is made as a matter of routine and not with reference to liti at all – obviously not privileged;

o

However, the fact that a report may lead to factual findings is not terminal to the party’s case since what is legally material is the purpose for which the factual findings were to be used

o

ONLY ISSUE was whether PWC draft reports were commissioned & prepared for the dominant purpose of litigation – it was §

While there were other purposes such as ascertaining potential financial exposure of APBL & putting in place a more reliable system to prevent future frauds, in the context of this case, they were just subsidiary purposes

Comptroller of Income Tax v ARW [2017] SGHC 16 Facts

•

Issue was whether documents, communications, and other papers generated in the course of an investigatory audit by a public authority are protected by legal professional privilege, either as LiPri or LAPri

•

ARW asked for these documents which were generated in the course of an investigatory audit by CIT

/held/

•

[29]: S 128 & 131 of the EA are generally taken as providing for legal professional privilege in SG o

However, sections do not stipulate the privilege in exactly the same form as the common law rules

o

In Skandinaviska, CoA noted that since s 128 & 131 were essentially founded on English cases, English law principles apply to determine their scope, subject to the limitation of s 2 (Asia Pacific Breweries)

• •

Application of LiPri o

•

Elements:§

[1] There must be reasonable prospect of litigation;

§

[2] Documents must be created for the dominant purpose of litigation

At [32]: [1] Reasonable Prospect of Litigation o

Since the objective of the privilege is to protect confidentiality between a person & his lawyers as they prepare to face off against their opponents, litigation must be a reasonable prospect ([31], citing Sheldon Blank, as cited in APB) §

Object of LiPri is ensuring the efficacy of the adversarial trial process, and not to promote the solicitor-client r/s. To achieve this purpose, parties to litigation… must be left to prepare their contending positions in private, 34

w/o adversarial interference & the fear of premature disclosure. o

If we required anything less than ‘reasonable prospect’ à LiPri would be ‘too readily invoked, diluting the connection on the basis of the privilege in the need for parties to prepare for proceedings’

o

However, anything more than a ‘reasonable prospect’à ignores reality that decisions are contingent on many factors, and its just not possible to determine with certainty before the fact whether litigation should be pursued

o

Therefore, what counts as a ‘reasonable prospect’ is not a 50% probability (citing Philip Morris) §

On the other hand a ‘small chance… would not count’

§

Between ‘small chance’ and ‘50%’, what must be shown is that there is some possibility which is objectively probable

o

At present case, when audit was conducted, litigation was not yet embarked on, but at least a possibility §

Admittedly, there were a number of contingencies – whether reassessment would be contested, whether proceedings should be instituted – but what matters is that the level of probability that litigation would occur was not negligible or very low

§

Even the fact that the litigation in contemplation at that time was of a different basis doesn’t matter – ‘once privileged, always privileged’ àapplies in so far as a change in the litigation contemplated would not disqualify reliance on the privilege

•

At [35]: Dominant Purpose o

Dominant purpose of the creation of the documents sought to be protected must be for litigation

o

§

Otherwise, basis of the privilege is not sufficiently engaged

§

However, not necessary that litigation is the sole purpose

At [37]: Where there is a high probability or likelihood of litigation, litigation is likely to be made out to be the dominant purpose à ‘broad, practical approach in determining dominant purpose’ by considering what is overarching §

Highgrade – insurers commissioned reports to determine both whether the claim on the insurance could be supported, and whether there should be litigation. •

/held/ Dual purposes were inseparable since if the insurance claim was held to be unsupported, litigation would ‘inevitably follow’

§

Plummers – Accountant’s report prepared in order for Df to determine whether immediate payment could be demanded and thus whether Pf would likely withdraw or compromise their claim was essentially prepared for the dominant purpose of determining whether claim should be made

§

APB – Documents sought to be disclosed were created for several purposes – determining the respondent’s liabilities arising out of the fraud of its employees, such rights pertaining to litigation, but also advised respondent on how to prevent similar incidents of fraud •

/held/ Even though they served other purposes, litigation was not only a ‘reasonable prospect’, but a reality which would have been ‘foremost in the mind’ of the Respondent at the time documents 35

were created o

[39]-[41]: However, on the facts of the case, objective of the document was to determine whether a basis for additional assessment existed §

If so, additional assessment would be the first step if the scheme was found to be a tax avoidance arrangement, and litigation would occur if the 1st Df did not accept this additional assessment

§

Litigation here may be probable, but the assessment creates a branching set of events that could encompass a different outcome, and just because litigation could follow a regulatory action doesn’t mean litigation was a dominant purpose à or else any regulatory action can be the basis of a claim in litigation – very early stage, couldn’t fairly say liti was contemplated

§

Litigation has to be the primary objective, and if another course of action, such as a regulatory determination, is interposed, it can rarely be said that primary objective is litigation

•

Application of LAPri

•

LAPri protects communication between the client & his lawyer, covering both advice actually conveyed, and intended to be conveyed ([43], citing Three Rivers) o

Aims to allow a person to obtain advice from his legal adviser fully in confidence

o

Privilege extends to advice obtained from in-house counsel (lawyers within the same organisation or entity) (ARX)

•

LAPri arises where communication is made for the purposes of legal advice (Balabel) o

Further recognised that communications made between a client & lawyer may take place across a continuum or spectrum of circumstances, ranging from, at one end, a specific request for legal advice or a document conveying clear & detailed legal advice, to the other end, where info or documents are communicated for the purposes of keeping each other apprised to allow advice to be given when needed.

•

Only one element – advice must be given in a legal context o

‘Legal context’ is not narrowly defined, but a legal context must exist à merely communications that could possibly be referred on to lawyers for the giving of advice doesn’t clothe the communication with legal advice privilege

o

Citing Bacon & Woodrow, court acknowledged that a solicitor’s professional duty extends to the commercial wisdom of a transaction in respect of which legal advice was also sought §

In such a case, all communications between the solicitor & client relating to the transaction would be privileged as ling as the communications related directly to the solicitor’s performance of his professional duty as a legal advisor

o

Similarly, Balabel involved communications sent to lawyers in the midst of discussions about a convenyancing transaction as well as the lawyers’ advice on that transaction. §

Court held that its artificial to draw a line between express requests for legal advice and other matters passed on to the lawyers à transaction as a whole may require communications between client & solicitor

o

In this case however, there was nothing to show that any of the requested documents specifically were communicated or intended to be communicated to 36

lawyers for their broad advice o

Mere fact that documents exist and may possibly considered & reviewed from a legal perspective enough à must be evidence that documents went to, or were intended to be sent to, lawyers

D. Exceptions to LiPri •

Since LiPri exists in s 131 by virtue of the common law, it should also be subject to common law exceptions (Gelatissimo at [33]) o

At [36]: considered that all common law jurisdictions recognise some form of fraud or crime exception, and therefore concluded that the fraud exception applies to LiPri §

While the court acknowledged that s 131 is drafted in such a way as to suggest that LiPri is an absolute privilege that cannot e overridden in any circumstances, this would lead to an absurd result

o

Especially considering that both LPPs stem from the same public policy of facilitating access to justice for non-legally trained persons, it would be anomalous if the exceptions to one were much broader than the other. Accordingly, the court held at [67] that LiPri in s.131 is subject to the same fraud exception that exists in s 128 and applied both s 128(2)(a) and (b) to LiPri §

Citing Kuwait Airways – e.g. in the case of a conspiracy to deprive a widow of her savings, and the fraudsters do not contemplate litigation, but litigation takes place à it would be absurd for the fraud exception to apply until litigation is contemplated, but not thereafter. Furthering the same criminal purpose after LITIGATION BEGINS (OR IS CONTEMPLATED) cannot attract more privilege than the original criminal purpose

§

Or, if the criminal purpose only came into existence after litigation began

37