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

Transcription

1 14 SAcLJ New Twists in Legal Professional Privilege 195 NEW TWISTS IN LEGAL PROFESSIONAL PRIVILEGE: COMMUNICATIONS FOR THE PURPOSE OF LITIGATION AND BETWEEN THE LAWYER AND CLIENT Introduction 1 The law governing legal professional privilege has raised controversial issues in recent years as a result of case law developments in England. This is of particular relevance to Singapore because the High Court here has applied the view of the English High Court in Secretary of State for Trade of Industry v Baker 1 which, it is submitted, runs contrary to authority in England and is inconsistent with the position previously taken by the High Court and the Court of Appeal in Singapore. This particular controversy concerns what has previously been referred to as the privilege in respect of materials for evidence or communications with third parties and is now popularly termed as litigation privilege. 2 The second part of the article will analyse the House of Lords pronouncement in R v Derby Magistrates Court, ex parte B 2 to the effect that the privilege which attaches to a communication between a lawyer and client cannot be breached even if the communication is essential to the defence of a person accused in criminal proceedings. This almost absolute doctrine (there are established but limited exceptions) must be considered in the context of Singapore law which has yet to declare the outcome of a potential conflict between the interest in maintaining the privilege and the interest in ensuring a fair trial through the disclosure of relevant evidence. Litigation privilege Nature of lawyer and client and litigation privilege 3 Legal professional privilege bifurcates into the two protective doctrines of lawyer and client privilege and litigation privilege. Communications 3 between a lawyer and his client made in the course and for the purpose [1998] Ch 356. This case involved Barings bank and is also referred to as Re Barings. [1996] AC 487. For the nature of the communications governed by the privilege, see s 128(1) of the Evidence Act (hereinafter referred to as the Act). Also see Balabel v Air India [1988] 2 All ER 246, at 254, where the Court of Appeal stated: In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a [continued on next page]

2 196 Singapore Academy of Law Journal (2002) of employment as a lawyer are safeguarded by lawyer and client privilege. Subject to certain exceptions, 4 the lawyer is not permitted (and not compellable) to disclose these communications. 5 As far as the client is concerned, he is not obliged to disclose any communication between himself and his legal professional adviser 6 unless he waives or gives up his right to the privilege; for example, by express consent, 7 by voluntarily giving evidence on the very matter to which those communications pertain 8 or questioning the advocate and solicitor (as a witness) on such matters. 9 The rationale of the privilege is that effective legal representation depends on the candid disclosure of information to the lawyer continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. When information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as please advise me what I should do. But even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it includes advice as to what should prudently and sensibly be done in the relevant legal context. Concerning communications in furtherance of any illegal purpose and facts observed by an advocate and solicitor revealing the commission of a crime or fraud since the time of his appointment (provisos (a) and (b) to s 128(1)). Ibid. See s 131 of the Act. Ibid, s 128(1). Ibid, s 131. Ibid, s 130. For this is the basis on which the lawyer can effectively advise the client as to his rights, duties, liabilities and immunities as well as how to proceed. In Ventouris v Mountain (The Italia Express) [1991] 1 WLR 607, at 611, Bingham LJ stated: The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege... Without the consent of the client, and in the absence of iniquity or dispute between client and solicitor, no inquiry may be made into or disclosure made of any instructions which the client gave the solicitor or any advice the solicitor gave the client, whether in writing or orally. Also see R v Derby Magistrates Court [1996] AC, at 507, where Taylor CJ said: The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

3 14 SAcLJ New Twists in Legal Professional Privilege 197 Accordingly, the assurance of non-disclosure promotes the administration of justice Bray, in his classic work on discovery, 12 distinguished lawyer and client privilege and litigation privilege in the following manner: Professional privilege [ie, privilege affecting communications between lawyer and client] rests in the impossibility of conducting litigation without professional advice, whereas the ground on which a party is protected from disclosing his evidence [litigation privilege] is that the adversary may not be thus enabled so to shape his case as to defeat the ends of justice. 5 In Ventouris v Mountain, 13 Bingham LJ accepted as correct Denning MR s statement of the law in Buttes Gas and Oil Co v Hammer (No 3) 14 concerning litigation privilege: Privilege in aid of litigation can be divided into two distinct classes: The first is legal professional privilege properly so called. It extends to all communications between the client and his legal adviser for the purpose of obtaining advice. It exists whether litigation is anticipated or not. The second only attaches to communications which at their inception come into existence with the dominant purpose of being used in aid of pending or contemplated litigation. That was settled by the House of Lords in Waugh v British Railways Board [1980] AC 521. It is not necessary that they should have come into existence at the instance of the lawyer. It is sufficient if they have come into existence at the instance of the party himself with the dominant purpose of being used in the anticipated litigation. The House approved of the short statement by James LJ in Anderson v Bank of British Columbia (1876) 2 Ch D 644, 656:... as you have no right to see you adversary s brief, you have no right to see that which comes into existence merely as the materials for the brief Indeed, this is carried to the extent that a confession of guilt by a client to his lawyer may not be disclosed by the latter to the court. (See illustration (a) to s 128.) This privilege is often referred to as legal advice privilege (because the client is encouraged to be forthcoming so that he can be properly advised), and, although it does not depend for its operation on the existence or even contemplation of litigation, it applies to a relatively narrow range of documents as compared to litigation privilege. (See the extract of the judgment from Balabel in note 3.) Discovery (1884), at 407. [1991] 1 WLR 607, at 618. [1981]QB 223, at

4 198 Singapore Academy of Law Journal (2002) Rationale of litigation privilege 6 As its name suggests, litigation privilege has its foundation in litigation whether pending or anticipated. The principle is that confidential communications between an advocate and solicitor (or his client) and a third party made for the sole or dominant purpose of litigation are protected from disclosure. 15 The rationale is connected to the adversarial nature of proceedings. Non-disclosure is justified on the basis that as such communications are closely connected to, and bear upon, the party s or his advocate s approach (including strategy and preparation) to the litigation, their revelation to the other litigants may compromise the efficacy of the adversarial system in discovering the truth through the clash of independent views. Bray justified the privilege on the basis that such communications: cannot be produced without showing what was the view of the professional legal adviser as to his client s case or the advice which he had given him; they are the materials selected by his mind and represent the result of his professional care and skill In Lee v South West Thames Health Authority, 18 Donaldson MR stated that a party should be free to collect evidence for his case without the fear of revealing the nature of his research. Again, in Robert Hitchins v International Computers Ltd, 19 Simon Brown LJ said of the policy underlying litigation privilege that it must surely be to enable parties or prospective parties to prepare properly for litigation in the confidence that others thereafter will not be entitled to examine and perhaps profit from their preparatory documentation. Litigation privilege has also been justified on the same basis as the privilege governing lawyer and client communications; namely, that it encourages third parties to be candid in the See, for example, Brink s Inc & Anor v Singapore Airlines Ltd & Anor [1998] 2 SLR 657; Wee Keng Hong Mark v ABN Amro Bank NV [1997] 2 SLR 629; Waugh v British Railways Board [1980] AC 521. Bray, Discovery (1884), at 392. In Anderson v Bank of British Columbia (1876) 2 Ch D 644, at 676, James LJ said:... as you may have no right to see your adversary s brief, you have no right to see that which comes into existence merely as materials for the brief.... More recently, Donaldson MR rationalised the principle on the basis that... a defendant or potential defendant shall be free to seek evidence without being obliged to disclose the result of his researches to his opponent. (Lee v South West Thames Health Authority [1985] 1 WLR 845, at 850.) [1985] 1 WLR 845, at 850. Unreported, December 10, 1996.

5 14 SAcLJ New Twists in Legal Professional Privilege 199 information they provide for the purpose of litigation. 20 Such candour is in the interest of the administration of justice because the litigant is made cognisant of the legal reality of his position and because truthful information ensures proper adjudication. In turn, this ensures that the client can be properly advised. 21 The recognition of litigation privilege dates as far back as the 19th century. 22 Litigation privilege in Singapore 8 The Evidence Act ( the Act ) does not address litigation privilege. 23 Section 128 is concerned with the privilege which pertains to lawyer and client communications. 24 The provision is to the effect that the lawyer 25 is not permitted (unless the client expressly consents) to disclose any communication made to him in the course and for the purpose of his employment... by or on behalf of his client. Furthermore, he is prohibited from stating the contents or condition of any document with which he has become acquainted with in the course and for the purpose of his professional employment. And, of course, he must not reveal the legal advice which he has given to his client in the context of their professional relationship. Similarly, s 131, which expresses the privilege from the client s perspective, states that he is not obliged to disclose the communications which have passed between him and legal professional adviser. 26 However, litigation privilege has been acknowledged by more recent statutes Lord Wilberforce stated in Waugh v British Railways Board L1980] AC 521, at 531: A more powerful argument to my mind is that everything should be done in order to encourage anyone who knows the facts to state them fully and candidly... This he may not do unless he knows that his communication is privileged. Brink s Inc & Anor v Singapore Airlines Ltd & Anor [1998] 2 SLR 657, at paras 6 7 (citing Lord Edmund-Davies s judgment in Waugh at 543). See, for example Kennedy v Lyell (1883) 23 Ch D 387, at 404; In Anderson v Bank of British Columbia (1876) 2 Ch D 644, at (James LJ), (Mellish LJ); Kyshe v Holt [1888] WN 128 (Smith J); Wheeler v Le Marchant (1881) 17 ChD 675, at 683 (Brett LJ), (Cotton LJ). Probably because the statute was based on the Indian Evidence Act of 1872 (introduced to Singapore in 1893), which was formulated at a time when the privilege had not yet been fully established. The provisions pertinent to legal professional privilege are ss They have been referred to in the text and notes. Section 128 uses the terminology advocate or solicitor. This means advocate and solicitor. See Butterworths Annotated Statutes, vol 5, Evidence (1997 re-issue), under s 128. Unless he waives his privilege by offering himself as a witness and the communications are necessary to explain the evidence which he gives as a witness. Legal professional adviser is broader than advocate or solicitor in s 128. For a discussion of this issue, see Butterworths Annotated Statutes, vol 5, Evidence (1997 re-issue), under s 128 and s 131. See, for example, s 35(2) of Corruption, Drug Trafficking And Other Serious Crimes (Confiscation Of Benefits) Act (Cap 65A).

6 200 Singapore Academy of Law Journal (2002) 9 Litigation privilege had been thought to be operational in Singapore even before the first reported decision on the doctrine 28 in Wee Keng Hong Mark v ABN Amro Bank NV. 29 In that case, Rubin J applied the English authorities 30 and determined that an investigation report commissioned by the defendant bank in proceedings against it for, inter alia, breach of duty, had not been made for the dominant purpose of litigation. 31 This dominant purpose test was applied by the Court of Appeal in Brink s Inc & Anor v Singapore Airlines Ltd & Anor 32 in relation to a report made by loss adjustors concerning the loss of goods. The court ruled that the report was not commissioned principally for the purpose of litigation and, accordingly, was not protected by litigation privilege Inexplicably, Brink s Inc and Wee Keng Hong were not cited in the subsequent judgment of the Singapore High Court in The Patraikos No The case involved an application for the discovery of particular documents. 35 The court defined litigation privilege 36 as encompassing: (1) communications between the client s professional legal advisers and third parties, if made for the purpose of pending or contemplated litigation, and (2) communications between the client or his agent and third parties, if made for the purpose of obtaining information to be submitted to the client s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation The English position was followed in Singapore. [1997] 2 SLR 629, at Waugh v British Railways [1980] AC 521; Longthorn v British Transport [1959] 2 All ER 32 The court stated: There is no indication anywhere in the documents tendered during the proceedings that the investigation report was for the purposes of placing it before the Bank s legal advisors although the writ [had been issued].... Apart from the submission by the plaintiff s counsel that the report is privileged and a very general averment [in an affidavit], there is no further material to suggest that the investigation was undertaken with a view to placing the report before the Bank s legal advisors even though one could infer that it was a logical step to follow. ([1997] 2 SLR 629, at ) [1998] 2 SLR 657. The Court of Appeal applied Waugh v British Railways Board [1980] AC 521 and other common law authorities. [2001] 4 SLR 308. Pursuant to the former Order 24, rule 7(3) (now Order 24, rule 5(3)) of the Rules of Court, 1997). This definition of litigation privilege was adopted from the 16th report of the UK Law Reform Committee ( Privilege in Civil Proceedings ), 1967, paras 17 and 18.

7 14 SAcLJ New Twists in Legal Professional Privilege The court in The Patraikos No 2 did not go further to emphasise that the purpose must be a dominant one and not merely one of several purposes. This was made abundantly clear by the UK Law Reform Committee in their report from which the above definition is taken. 37 Moreover, the dominant purpose test was established as the proper test by the Court of Appeal in Brink s Inc and the High Court in Wee Keng Hong and by various rulings in England The other difficulty arising out of The Patraikos No 2 is the High Court s reliance on the English High Court case of Secretary of State for Trade of Industry v Baker 39 for the following critical observation of Sir Richard Scott VC:... documents brought into being by solicitors for the purposes of litigation were afforded privilege because of the light they might cast on the client s instructions to the solicitor or the solicitor s advice to the client regarding the conduct of the case or on the client s prospects. There was no general privilege that attached to documents brought into existence for the purposes of litigation independent of the need to keep inviolate communications between client and legal adviser. If documents for which privilege was sought did not relate in some fashion to communications between client and legal adviser, there was no element of public interest that could override the ordinary rights of discovery and no privilege. 13 Applying this principle to the facts, the High Court in The Patraikos No 2 ruled that litigation privilege did not extend to the documents in question as they did not reveal the nature of the communications between lawyer and client. 40 Again, this approach is inconsistent with the view of the Court of Appeal in Brink s Inc. There, Karthigesu JA made no reference to this additional consideration of whether the third party communication reveals communications between the lawyer and his client. The Court of Appeal decided the matter purely on the basis that there was insufficient evidence to establish that the survey report had been made for Ibid. Such as Waugh v British Railways Board [1980] AC 521; Ventouris v Mountain [1991] 1 WLR 607; Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; In re Highgrade Traders Ltd [1984] BCLC 151. [1998] WLR 667, at 675. The court stated ([2001 ] 4 SLR 308, at para 15):... in order to have the benefit of the privilege, the defendants had to show that the faxes sent by SRT to Dioryx either reflected the defendants instructions to SRT in some way, or somehow gave an indication of the legal advice that SRT would be giving the defendants; this they failed to do.

8 202 Singapore Academy of Law Journal (2002) the sole or dominant purpose of litigation. The point is that the Court of Appeal would have been prepared to confer the privilege had the dominant purpose test been met even though the survey report would not have revealed communications between lawyer and client. Similarly, in Wee Keng Hong, Rubin J indicated that he would have upheld the privilege if the investigation report commissioned by the bank had been made for the dominant purpose of litigation. No reference was made by the learned judge to any condition requiring the protection of communications between the bank and its lawyers in the context of litigation privilege. Significance of Secretary of State for Industry and Trade v Baker 14 Brink s Inc was decided at approximately the same time as Baker, 41 which may explain why the Court of Appeal made no reference to the latter. However, it is submitted that even if Baker had been available to the Court of Appeal in Brink s Inc, the Court of Appeal would have recognised that Sir Richard Scott VC s observation in Baker was not pertinent to the final outcome of that case 42 and that, in any event, it runs against established authority. Alternatively, the Court of Appeal might have distinguished Baker on the basis that that case concerned the disclosure of a document specifically required by statute. It is necessary to consider Baker in the context of pre-existing cases to determine whether it is likely to have any future influence on the law of professional privilege in Singapore. 15 In Baker, the Administrators of Barings Bank prepared and submitted a report concerning the conduct, inter alia, of its former directors to the Secretary of State as required by s 7(3) of the Company Directors Disqualification Act The Secretary of State then initiated disqualification proceedings against the directors concerned. In the course of these proceedings, the court ordered discovery of various documents including the report prepared by the Administrators of the Bank. The Secretary of State objected on the basis that the report had been prepared for the dominant purpose of deciding whether to bring the disqualification proceedings. Sir Richard Scott VC ruled that the privilege did not apply as the report was statutory in nature. The learned judge distinguished this from the situation in which a person may prepare a document for one of several purposes, one of which may be dominant. In the case of a report required by statute, the court opined, there is a single statutory purpose which is to make information available to the Secretary of State. The intentions of the Cited in note 1. In Baker, the court decided that litigation privilege did not apply because the document was a statutory report. This point is considered in the following paragraph.

9 14 SAcLJ New Twists in Legal Professional Privilege 203 maker of the document (the Administrators of the Bank) are irrelevant for this purpose. 43 The judge stated that any claim to privilege would have had to rest on public interest considerations which did not apply because no such claim had been made by the Secretary of State Whatever the merits of the actual decision in Baker, there is the more pressing concern of Sir Richard Scott VC s controversial view that litigation privilege no longer stands on its own but is intimately linked to lawyer and client privilege. According to the learned judge s view, it is not sufficient to show that the communication (or document transmitted) between the advocate or client and third party is made for the dominant purpose of litigation. The party claiming the litigation privilege, he states, must additionally establish that the communication or document should not be disclosed because of the light [it] might cast on the client s instructions to the solicitor or the solicitor s advice to the client regarding the conduct of the case or on the client s prospects. 45 The case did not go to the Court of Appeal because the Secretary of State decided to deliver the report to the other party prior to delivery of the judgment. 17 The point has already been made that Sir Richard Scott VC s view does not represent the current position in Singapore (which is the dominant purpose test established in Brink s Inc), despite the acceptance of that view by the Singapore High Court in The Patraikos No 2. Indeed, Sir Richard Scott VC acknowledged that he was bound by the previous rulings of the Court of Appeal to the effect that litigation privilege operates on the basis of the sole or dominant purpose test regardless of whether the communication between the lawyer or client and third party reveals any privileged communications between the lawyer and client. 46 However, the learned judge thought that the Court of Appeal, by ignoring the issue of whether the third party communication revealed the nature of lawyer and client communications, had failed to identify an overriding public Ibid, at 372. It is difficult to understand this view. Surely, the purpose of making the information available that is material to the issue of whether litigation privilege should apply. See main text at, and, note 49. Ibid, at 374. The learned judge indicated that a claim to public interest privilege would have failed. (Ibid.) Note that if the case had arisen in Singapore, it may have been possible for any government official concerned to argue for protection against disclosure pursuant to s 126 of the Evidence Act (communications to public officers in official confidence which, if disclosed, would be injurious to the public interest). See the full quote in the main text after note 40. In particular, In Re Highgrade Traders Ltd [1984] BCLC 151 and Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR Both cases are considered in Baker at

10 204 Singapore Academy of Law Journal (2002) interest. 47 The learned judge distinguished the rulings of the Court of Appeal on the premise that they did not involve a statutory report, a conclusion which is also controversial By not recognising the dominant purpose test as a separate and distinct ground for litigation privilege, Sir Richard Scott VC was, in effect, declaring that the privilege had no independent existence and operated as an adjunct of lawyer and client privilege. This view that litigation privilege exists only to serve the policy of lawyer and client privilege does not take into account the establishment of two separate privileges as early as the 19th century. 49 Reference has already been made to Bray s clear distinction between the two privileges. 50 Even in 1968, the UK Law Reform Committee, 51 in their 16th Report, recognised lawyer and client privilege and litigation privilege as being governed by separate principles. 52 The Committee strongly supported the right of a party to withhold documents which came into existence wholly or mainly for the purpose of preparing his case in pending or contemplated litigation. 53 Indeed, it stated that an unrepresented litigant:... would appear to be entitled to privilege for comuunications between himself and third parties, if made for the purpose of obtaining factual information for the preparation of his case in pending or contemplated litigation The absence of legal representation in these circumstances would certainly support the view that litigation privilege stands on its own and apart from the conditions applicable to lawyer and client privilege. A similar Ie, a public interest which would override the interest of the administration of justice in ensuring that all relevant documentation is placed before the court. See Baker, at 371. It is unclear why the ordinary principles governing litigation privilege established in the early cases should not apply to statutory reports which do not attract public interest or state privilege. (These latter privileges were not raised in the Secretary of State.) See, for example Kennedy v Lyell (1883) 23 Ch D 387, at 404; Anderson v Bank of British Columbia (1876) 2 Ch D 644, at 656 (James LJ), (Mellish LJ); Kyshe v Holt [1888] WN 128 (Smith J). Cf Jones v Great Central Railway [1910] AC 4; Young v Holloway (1887) 12 PD 167 and Cave J s view in Kyshe v Holt [1888] WN 128. For a recent affirmation of the distinction between the privileges in Canada, see Samson Indian Band and Nation v Canada 125 DLR (4th) 294. Which he referred to as legal professional privilege (lawyer and client privilege) and materials for evidence (litigation privilege). See Bray s proposition in the main text after note 12. Bray covered these topics separately in his book (Discovery (1884), Book II, chapters II and III.) Also see pp 392, , 410 of his work. Composed of six current and three future judges. The privileges are set out in different parts of the UK Law Reform Committee s 16th Report. (See paras 17 and 30.) Ibid, at para 17. Ibid, at para 17.

11 14 SAcLJ New Twists in Legal Professional Privilege 205 observation was made by Bingham LJ in Ventouris v Mountain 55 in which he stated that an unrepresented litigant could avail himself of litigation privilege. In addition, in Waugh v British Railways Board, 56 the Law Reform Committee s view was endorsed by judges in both the Court of Appeal and House of Lords. 57 The Court of Appeal s decisions in In Re Highgrade Traders Ltd 58 and Guiness Peat Properties Ltd v Fitzroy Robinson Partnership 59 clearly establish the dominant purpose method as the sole test. In those cases, litigation privilege was upheld even though the third party communications would not have revealed the communications between lawyer and client The real question in issue is whether a communication made between the advocate or client and third party for the dominant purpose of litigation justifies non-disclosure. In Sir Richard Scott VC s view, it does not because of the absence of a public interest to override the public interest in full disclosure: If documents for which privilege was sought did not relate in some fashion to communications between client and legal adviser, there was no element of public interest that could override the ordinary rights of discovery Therefore, the learned judge did not accept that litigation privilege could be justified apart from the need to preserve the inviolability of lawyer and client communications. 21 Apart from his unwillingness to accept the correctness of binding Court of Appeal decisions, Sir Richard Scott VC cited some judicial pronouncements in doubtful support of his view. 62 Some of the observations are solely concerned with the privilege which attaches to communications between the lawyer and his client and, therefore, no reference is made to litigation privilege. Other observations merely, and quite correctly, rationalise lawyer and client and litigation privilege as related (but separate) doctrines. 63 However, none of the cases cited by the learned judge expressly declares that litigation privilege can only operate where disclosure would compromise [1991] 1 WLR 607, at 611. [1980] AC 521. Ie, by Lord Edmund-Davies in the House of Lords and Lord Denning MR in the Court of Appeal. [1984] BCLC 151. [1987] 1 WLR As was acknowledged by Sir Richard Scott VC in Baker. These were the cases by which the learned judge reluctantly regarded himself as bound. (Baker, at 371.) Also see Bums Gas and Oil Co v Hammer (No 3) [1981] QB 223, at Baker, at 366. Baker, at After all, information passing between a solicitor and third party for the dominant purpose of litigation may reveal the advice that an advocate may provide his client (for example, strategy or approach to the case) or even communications between them.

12 206 Singapore Academy of Law Journal (2002) the confidentiality of the lawyer and client relationship. 64 Kindred doctrines do not necessarily share common principles and cannot be assumed to be interdependent. Indeed, most of the cases cited by the learned judge actually support the independence of litigation privilege based on the dominant purpose test It is clear that these difficulties have arisen from a failure to understand the subtle distinction between two branches of legal professional privilege. Lawyer and client privilege is intended to encourage the client to be wholly forthcoming in the information he gives to his lawyer so that he can receive effective legal representation. Litigation privilege encourages the provision of relevant information by third parties (at the instance of the lawyer or the client), and is concerned with the protection of the lawyer s and client s strategy, approach to, and preparation of, the case. As put by Bray, it seeks to protect the mind of the lawyer. 66 These privileges are linked because the lawyer s advice to his client in respect of his views, strategy and approach is protected by lawyer and client privilege. This overlap should not be interpreted as requiring common principles because the ultimate objectives of the privileges are quite different. Litigation privilege becomes redundant if it operates only for the purpose of protecting communications between lawyer and client. The public interest in protecting the lawyer s mind would also be compromised if ignored by limiting litigation privilege in the way suggested in Baker. Subsequent authorities on the issues raised in Baker 23 Subsequent cases do not resolve the uncertainty raised by Baker. In Visx v Nidek, 67 Aldous LJ cited extracts from the judgment of Sir Richard Scott VC in Baker and concluded that the privilege would not attach to a document prepared for litigation unless it would be in the public interest to Although there are some early observations which could be regarded as denying the existence of litigation privilege. See Jones v Great Central Railway [1910] AC 4, at 5 6 (where Lord Loreburn LC rejected any privilege beyond that which applies to lawyer and client communications). An alternative interpretation is that the document was not sufficiently connected to the litigation. Jones was disregarded in the more modern authorities such as Guiness Peat and Highgrade. In Kyshe v Holt [1888] WN 128, Cave J did not think that an unrepresented person could avail himself of a privilege in relation to a document sent by a third party. Smith J disagreed. (See note 23.) See, for example Kennedy v Lyell (1883) 23 Ch D 387, at 404; Anderson v Bank of British Columbia (1876) 2 Ch D 644, at 656 (James LJ), (Mellish LJ); Kyshe v Holt [1888] WN 128 (Smith J); Waugh v British Railways Board [1980] AC 521; Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; In Re Highgrade Traders Ltd [1984] BCLC 151. See main text at note 17. [1999] FSR 91.

13 14 SAcLJ New Twists in Legal Professional Privilege 207 prevent disclosure. The claim for privilege was disallowed on the basis that certain depositions (the documents in respect of which litigation privilege was claimed) had already been seen by both parties and therefore there was no public interest to be served in upholding the privilege. Although Aldous LJ did not go as far as to say that litigation privilege should only operate to avoid revealing communications between a client and his lawyer (the position taken in by Sir Richard Scott VC in Baker), the learned judge did indicate that a public interest in non-disclosure had to be shown. 68 It is not clear from the judgment whether the traditional rationale of litigation privilege would be a sufficient public interest for this purpose. 24 The case of S County Council v B, 69 which concerned care proceedings in respect of an allegedly abused child, is more to the point. The issue was whether a father, who was being separately prosecuted for causing grievous bodily harm to the child, could be required to produce in the care proceedings communications between him and experts made for the purpose of his defence in the criminal proceedings. The father s claim to litigation privilege was upheld. Charles J did not agree with Sir Richard Scott VC s view in Baker that litigation privilege should only operate to avoid revealing communications between a client and his lawyer. Charles J s conclusions may be summarised as follows: The law regarding litigation privilege is as set out by the Court of Appeal in In Re Highgrade Traders Ltd, Guiness Peat Properties Ltd and by the House of Lords in Waugh. The dominant purpose test governs. 70 Litigation privilege does not merely uphold the inviolability of communications between a lawyer and his client. In support of his view, Charles J referred to Bingham LJ s point in Ventouris v Mountain 71 that litigation privilege may be claimed by a litigant in person 72 and his conclusion that the privilege is not confined to communications between a client and his solicitor relating to advice or instructions. 73 Charles J regarded Sir Richard Scott VC s view as too narrow Ibid, at 106. [2000] 3 WLR 53. Ibid, at [1991] 1 WLR 607. Also see Anderson v Bank of British Columbia, 2 Ch D 644, at 648. [1991] 1 WLR. 607, at 611. [2000] 3 WLR 53, at 60.

14 208 Singapore Academy of Law Journal (2002) Lawyer and client privilege and litigation privilege are integral parts of a single privilege. 75 The public interest considerations underlying lawyer and client privilege and litigation privilege are the same or essentially the same because they have the same root in legal professional privilege. Litigation privilege is not a lesser privilege than lawyer and client privilege. 76 Charles J also stated:... in considering whether material is covered by legal professional privilege and in particular litigation privilege in a new area or one not directly covered by earlier authority, it is important to ask... whether the public interest and underlying justification for legal professional privilege applies and not whether the material can fairly be described as being in the same class as material to which legal professional privilege has been held to apply before in similar circumstances. 77 This last point raises the consideration of whether the dominant purpose test is conclusive in all circumstances (so as to always prevent disclosure), or whether there are some instances when public interest considerations may require a different conclusion. This brings us to the issue of whether litigation privilege is absolute. 78 Is the privilege absolute? 25 The question of whether litigation privilege is absolute or qualified (and if so, to what extent) needs to be considered in the context of the more developed jurisprudence concerning the absoluteness of lawyer and client privilege Ibid, at 62. Ibid, at 62. Charles J added: This point has been recognised in relation to claims for public interest immunity and it seems to me that it is important to remember it when considering whether (i) litigation privilege arises in respect of proceedings under the Children Act 1989 which are essentially non-adversarial, and (ii) the different question whether legal professional privilege, including litigation privilege, which has arisen outside such proceedings can be claimed in them; and... it is not for me in this case to re-examine the validity of the arguments relating to public interest and candour (see for example Lord Wilberforce in Waugh v British Railways Board [1980] AC 521, ) that support litigation privilege, and legal professional privilege generally. (Ibid, at 62.) S County Council is further considered in the main text at note 176. There are recent cases on the issue of the absoluteness of litigation privilege which will be considered in the main text from note 170.

15 14 SAcLJ New Twists in Legal Professional Privilege 209 Lawyer and client privilege COMMON LAW DEVELOPMENTS IN RELATION TO THE ABSOLUTENESS OF LAWYER AND CLIENT PRIVILEGE 26 Until recently, little had been said about whether litigation privilege is absolute or subject to balancing considerations. In England, the House of Lords changed the law in 1995 in respect of the absolute nature of lawyer and client privilege. The case in question, R v Derby Magistrates Court, 80 established that lawyer and client privilege is absolute (subject to specific exceptions), and not dependent on other public interest considerations such as the availability of essential evidence to the defence in criminal proceedings. The balancing approach of weighing the interest of the client in maintaining his privilege (so that the document is not disclosed) and the interest of the person who seeks to rely on the document (so that he has access to relevant evidence in the interest of the administration of justice) had been established by earlier decisions. In R v Barton, 81 Caulfield J ruled that a legal executive of a law firm who had been accused of fraud, theft and falsification of accounts, was entitled to subpoena a partner of the firm to require the latter to produce privileged documents which were necessary to the defence. The learned judge said: I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown Caulfield J arrived at his decision on the basis of natural justice for the accused. This qualification to the privilege was further developed in R v Ataou. 83 The Court of Appeal ruled that a prosecution witness (an accomplice of the accused) could be cross-examined for the purpose of adducing a statement previously made by the accomplice to his lawyer which had the effect of exonerating the accused. French J, who gave the judgment of the court, stated that the issue had to be determined by balancing the two competing public interests in protecting lawyer and client communications and the disclosure of relevant evidence: 84 When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That [1996] AC 487. [1973] 1 WLR 115 Ibid, at 118. [1988] 2 All ER 321. Ibid, at 807 (citing R v Craig [1975] 1 NZLR 597).

16 210 Singapore Academy of Law Journal (2002) might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it. 28 In Ataou, the court found that although the person claiming the privilege continued to have an interest in its preservation, 85 that interest was not sufficient to override the interest of the accused in having access to the privileged communication for the purpose of his defence. 29 Barton and Ataou were overruled by the House of Lords in Derby. 86 Lord Taylor, who delivered the leading judgment, examined a long line of authorities and concluded: 87 The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. 30 His Lordship said of the balancing process advocated in Ataou: 88 [It] seems to conflict with the long established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged, always privileged. It also goes against the view that the privilege is the same whether the documents are sought for the purpose of civil or criminal The court stated that although the disclosure of his statement might have an adverse effect on the sentence that would be imposed on the accomplice, this could be addressed by arranging for a different judge to sentence him. As to the possibility that the statement might expose him to prosecution for perjury, the court regarded this as too theoretical to carry much weight. (Ibid, at 807.) In General Mediterranean Holdings SA v Patel & Anor [1999] 3 All ER 672, the English High Court re-emphasised the paramountcy of the principle of legal professional privilege by deciding that a rule of the Civil Procedure Rules 1999 (pt 48.7(3)), which purported to empower a court to order the disclosure of privileged documents for the purpose of an appliction for a wasted costs order, was ultra vires. The absolutist doctrine also received support from the High Court of Australia in Carter v The Managing Partner, Northmore Hale Davy & Leake & Ors [1995] 183 CLR 121. [1996] AC 487, at 507. Ibid, at 503.

17 14 SAcLJ New Twists in Legal Professional Privilege 211 proceedings, and whether by the prosecution or defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be questioned or investigated by the court. 31 At the root of their Lordships determination that the privilege is absolute was the concern that any qualification to the privilege would undermine the fundamental principle that a client must not feel constrained in any way in his communications with his lawyer. Lord Taylor stated:... once any exception to the general rule is allowed, the client s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had any recognisable interst in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined Lord Taylor added that the benefit of this principle extends beyond the interest of the person claiming it to all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. 90 Lord Lloyd pointed out that the relationship of confidence between lawyer and client would be undermined or even destroyed if the client is told that his privilege may be overridden at some future time. 91 Lord Lloyd conceded that the absoluteness of the privilege might cause hardship where an accused person needs to rely on the communication to establish his innocence, but in the overall interests of the administration of justice it is better that the principle should be preserved intact. 92 Apart from Lord Nicholls, all their Lordships were willing to uphold the absoluteness of the privilege even if the client no longer has a reason for claiming that privilege. It is common for a privilege to be spent once proceedings are concluded or the matter in respect of which the client consulted his lawyer is wholly resolved. This is because the client has no further interest to protect the case is over. As the matter did not arise in Derby, 93 Lord Nicholls decided to reserve his final view on the issue Ibid, at 508. Ibid. Ibid, at 509. Ibid, at 510. In Derby, the person claiming the privilege continued to have some interest in preserving confidentiality as disclosure would have revealed him to be the criminal. Ibid, at 513. This point is analysed in the context of the heading (iv) What should the status of the privilege be if the person seeking to uphold it no longer has an interest in doing so? (main text at para 46).

18 212 Singapore Academy of Law Journal (2002) MATTERS ARISING FROM HOUSE OF LORDS RULING IN DERBY MAGISTRATES AND SUBSEQUENT CASES. (i) Was lawyer and client privilege ever an absolute doctrine? 33 Lord Taylor justified the conclusion of the House of Lords that the privilege is absolute on the basis of authorities dating back to the 16th century. 95 Yet the cases cited are concerned with the general principle that lawyer and client communications must be protected. The circumstances of these decisions did not require the courts to address the exceptions or qualifications to the principle which had been well established even in the 19th century. 96 Put simply, lawyer and client privilege has never been strictly absolute. The privilege will not operate where the communication is in furtherance of an illegal purpose; 97 or the client consents to its disclosure 98 or waives his right to claim privilege; 99 or where a copy of the document is accidentally disclosed and inspected; 100 or obtained by a third party; 101 or reveals a crime or fraud committed since the appointment of the lawyer; 102 or the privilege is overridden by a statutory provision which His conclusion is set out in the main text after note 87. For example, the illustrations to the provisos in s 128 (a) and (b) are founded on cases such as R v Cox and Railton (1884) 14 QBD 153 and Brown v Foster (1857) 1 H & N 736. Also see O Rourke v Darbishire [1920] AC 581. The doctrine of express and implied waiver of privilege had been established at the time of the Act as well. See s 130 and s 131 of the Act.) See s 128(1)(a)of the Act. Ibid, s 128(1). (Express consent is required: Yeo Ah Tee v Lee Chuan Meow [1962] MLJ 413.) See ss 130 and 131 of the Act. For illustrations of waiver at common law, see Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485, at 494 (unintentional disclosure of a privileged document); Spedley Securities Ltd v Bank of New Zealand (1991) 26 NSWLR 711, at 729 (omission to claim privilege in respect of a document); Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87 (use of document in a manner which would disclose its content as when a witness s memory is refreshed); Kershaw v Whelan, The Times, 20 December 1995 (where a plaintiff brings an action which involves showing that he had no knowledge of a particular matter, he may be regarded as having impliedly waived his privilege over a document which shows that he did have such knowledge). See O 24, r 19(1) (Rules of Court) which provides: Where a party inadvertently allows a privileged document to be inspected, the party who inspected it may use it or its contents only if the leave of the Court to do so is first obtained. Also see Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR Calcraft v Guest [1898] 1 QB 759. See s 128(1)(b) of the Act.

19 14 SAcLJ New Twists in Legal Professional Privilege 213 requires disclosure. 103 Although many of these qualifications were established in the 19th century, recent authorities have shown that they are not fixed or closed 104 thereby indicating a less than absolutist doctrine. Moreover, it is arguable that if lawyer and client privilege is absolute or reflects the predominant public interest, as Lord Lloyd puts it, 105 it would have been better protected by a rule of exclusion 106 rather than a right which could be lost through a variety of means The reality of the law has always been that the client can never be assured that his privileged communication can never be disclosed. If one accepts this, then the client s realisation that there is a remote possibility that his privilege may in the future have to give way 108 to the greater concern 109 of an accused person who may be improperly convicted, does not significantly alter the scope and underlying philosophy of the general rule, which must make way for the public interest in avoiding the conviction of an innocent man. It would certainly be an abuse of administration of justice if the person claiming the privilege could withhold evidence (in which he has little or no interest) knowing full well that the consequence may be an improper conviction. (ii) Is there a basis for applying the balancing test? 35 The conclusion of the House of Lords that the approaches in Barton and Ataou are inconsistent with pre-existing authority presumes that the courts in Barton and Ataou had acted contrary to precedent. However, the pre-existing cases do not rule out the application of the balancing approach. As Caulfield J said in Barton, there was no precedent to Normally this would have to be express but there are situations where the court may rule that a statutory provision abrogates the privilege in a particular situation. See Halsbury s Laws of Singapore: Evidence (vol 10) (2000) para For example, a recent development is the subjection of the privilege to the interest of a child in welfare proceedings. (See Oxfordshire County Council v M [1994] Fam 151, which was approved by the House of Lords in Re L (A Minor) [1996] 2 WLR 395, at 399.) Another example is the use of privileged communications in disputes between the client and his lawyer. (See Lillicrap v Nalder & Son [1993] 1 All ER 724; Kershaw v Whelan, Times, 20 December 1995.) Also see s 130 of the Evidence Act and Art 24 of the Legal Profession (Professional Conduct) Rules, In the Oxfordshire case, Steyn LJ referred to a variety of exceptions and qualifications apart from waiver and statutory provisions. [1996] AC 487, at 509. As suggested by Colin Tapper, Prosecution and privilege (1997) 1 International Journal of Evidence and Proof 4, at See note 99. Depending on the extent of the interest. Which, according to Ataou, the accused must establish on a balance of probabilities.

20 214 Singapore Academy of Law Journal (2002) counteract the fundamental principle of natural justice that a privileged communication must be disclosed if it would assist an accused person in his defence. Indeed, the Court of Appeal in Ataou recognised Barton as the first authority on the issue. Cases in other jurisdictions have also supported the balancing test The balancing process has a crucial role where an accused person needs to rely on material protected by public interest privilege. 111 Lord Simon put it as follows in D v NSPCC 112 in the context of the privilege granted to informants: The public interest that no innocent man should be convicted of a crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged: so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial. 37 The same principle was propounded in the previous century: 113 If disclosure of the name of the informant is necessary or right in order to show the prisoner s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail See R v Craig [1975] 1 NZLR 10; R v Dunbar & Logan [1973] 1 WLR 115, at 118. The outcome was different in Carter v The Managing Partner, Northmore Hale Davy & Leake & Ors [1995] 183 CLR 121, which will be considered in the course of this article. The following discussion of public interest privilege focuses on the common law which recognises a broad balancing principle. In the case of the Evidence Act, specific public interest privileges are recognised. It has yet to be judicially determined whether a public interest beyond the categories in the Act would be recognised. For a consideration of the issues in this area, see Chin TY, Documents on affairs of state as evidence [1979] 21 Mal LR 24. Also see note 117. [1978J AC 171, at 232. See Marks v Beyfus (1890) 25 QBD 494, at 498. Also see Neilson v Laugherne [1981] QB 736, at 753, where Oliver LJ said: If public policy prevents disclosure, it prevents it, in my judgment, in all circumstances except to establish innocence in criminal proceedings. Also see Halsbury s Laws of Singapore: Evidence (vol 10): para , at note 11 (in relation to the privilege which may be claimed by informants). In Singapore, state or government privilege is primarily governed by ss 125 and 126 of the Evidence Act which do not expressly apply the balancing test. It is for the Government department or public officer respectively to decide whether or not to claim the privilege. Similarly, s 127, which governs the privilege of informants, does not apply the balancing test. It is, of course, open to the courts to apply the balancing test through a purposive approach which is a modern trend in the Law of Evidence. See main text at note 163. This has happened in India in respect of corresponding provisions. (See, for example, State of Uttar Pradesh v Raj Narain AIR 1975 SC 865.)