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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 Baker1 which, it is submitted, runs contrary to authority in
England and is inconsistent with the position previously taken by the High
Court and the Court of Appeal in Singapore. This particular controversy
concerns what has previously been referred to as the privilege in respect
of “materials for evidence” or “communications with third parties” and is
now popularly termed as “litigation privilege”.
2
The second part of the article will analyse the House of Lords’
pronouncement in R v Derby Magistrates Court, ex parte B2 to the effect
that the privilege which attaches to a communication between a lawyer and
client cannot be breached even if the communication is essential to the
defence of a person accused in criminal proceedings. This almost absolute
doctrine (there are established but limited exceptions) must be considered
in the context of Singapore law which has yet to declare the outcome of a
potential conflict between the interest in maintaining the privilege and the
interest in ensuring a fair trial through the disclosure of relevant evidence.
Litigation privilege
Nature of “lawyer and client” and “litigation” privilege
3
Legal professional privilege bifurcates into the two protective doctrines
of lawyer and client privilege and litigation privilege. Communications 3
between a lawyer and his client made in the course and for the purpose
1
2
3
[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]
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
pertain8 or questioning the advocate and solicitor (as a witness) on such
matters.9 The rationale of the privilege is that effective legal representation
depends on the candid disclosure of information to the lawyer. 10
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.”
4 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)).
5 Ibid.
6 See s 131 of the Act.
7 Ibid, s 128(1).
8 Ibid, s 131.
9 Ibid, s 130.
10 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.”
14 SAcLJ
New Twists in Legal Professional Privilege
197
Accordingly, the assurance of non-disclosure promotes the administration
of justice.11
4
Bray, in his classic work on discovery,12 distinguished lawyer and
client privilege and litigation privilege in the following manner:
“Professional privilege [ie, privilege affecting communications
between lawyer and client] rests in the impossibility of conducting
litigation without professional advice, whereas the ground on which
a party is protected from disclosing his evidence [litigation privilege]
is that the adversary may not be thus enabled so to shape his case
as to defeat the ends of justice.”
5
In Ventouris v Mountain,13 Bingham LJ accepted as correct
Denning MR’s statement of the law in Buttes Gas and Oil Co v Hammer
(No 3)14 concerning litigation privilege:
“Privilege in aid of litigation can be divided into two distinct classes:
The first is legal professional privilege properly so called. It extends
to all communications between the client and his legal adviser for the
purpose of obtaining advice. It exists whether litigation is anticipated
or not. The second only attaches to communications which at their
inception come into existence with the dominant purpose of being
used in aid of pending or contemplated litigation. That was settled
by the House of Lords in Waugh v British Railways Board [1980]
AC 521. It is not necessary that they should have come into
existence at the instance of the lawyer. It is sufficient if they have
come into existence at the instance of the party himself – with the
dominant purpose of being used in the anticipated litigation. The
House approved of the short statement by James LJ in Anderson v
Bank of British Columbia (1876) 2 Ch D 644, 656: ‘... as you have
no right to see you adversary’s brief, you have no right to see that
which comes into existence merely as the materials for the brief.’”
11
12
13
14
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 243–244.
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Rationale of litigation privilege
6
As its name suggests, litigation privilege has its foundation in
litigation whether pending or anticipated. The principle is that confidential
communications between an advocate and solicitor (or his client) and a
third party made for the sole or dominant purpose of litigation are
protected from disclosure.15 The rationale is connected to the adversarial
nature of proceedings. Non-disclosure is justified on the basis that as such
communications are closely connected to, and bear upon, the party’s or his
advocate’s approach (including strategy and preparation) to the litigation,
their revelation to the other litigants may compromise the efficacy of
the adversarial system in discovering the truth through the clash of
independent views. Bray justified the privilege on the basis that such
communications:16
“... cannot be produced without showing what was the view of the
professional legal adviser as to his client’s case or the advice which
he had given him; they are the materials selected by his mind and
represent the result of his professional care and skill.”17
7
In Lee v South West Thames Health Authority,18 Donaldson MR
stated that a party should be free to collect evidence for his case without
the fear of revealing the nature of his research. Again, in Robert Hitchins
v International Computers Ltd,19 Simon Brown LJ said of the policy
underlying litigation privilege that it “must surely be to enable parties or
prospective parties to prepare properly for litigation in the confidence that
others thereafter will not be entitled to examine and perhaps profit from
their preparatory documentation”. Litigation privilege has also been justified
on the same basis as the privilege governing lawyer and client
communications; namely, that it encourages third parties to be candid in the
15
16
17
18
19
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.
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 lawyer25 is
not permitted (unless the client expressly consents) “to disclose any
communication made to him in the course and for the purpose of his
employment... by or on behalf of his client”. Furthermore, he is prohibited
from stating the “contents or condition of any document with which he has
become acquainted with in the course and for the purpose of his professional
employment”. And, of course, he must not reveal the legal advice which
he has given to his client in the context of their professional relationship.
Similarly, s 131, which expresses the privilege from the client’s perspective,
states that he is not obliged to disclose the communications which have
passed between him and legal professional adviser.26 However, litigation
privilege has been acknowledged by more recent statutes.27
20
21
22
23
24
25
26
27
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 656–7 (James LJ), 658–659 (Mellish LJ);
Kyshe v Holt [1888] WN 128 (Smith J); Wheeler v Le Marchant (1881) 17 C h D 675, at
683 (Brett LJ), 684–685 (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 128–131. 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).
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9
Litigation privilege had been thought to be operational in Singapore
even before the first reported decision on the doctrine28 in Wee Keng Hong
Mark v ABN Amro Bank NV.29 In that case, Rubin J applied the English
authorities30 and determined that an investigation report commissioned by
the defendant bank in proceedings against it for, inter alia, breach of duty,
had not been made for the dominant purpose of litigation.31 This dominant
purpose test was applied by the Court of Appeal in Brink’s Inc & Anor
v Singapore Airlines Ltd & Anor32 in relation to a report made by loss
adjustors concerning the loss of goods. The court ruled that the report was
not commissioned principally for the purpose of litigation and, accordingly,
was not protected by litigation privilege.33
10
Inexplicably, Brink’s Inc and Wee Keng Hong were not cited in the
subsequent judgment of the Singapore High Court in The Patraikos No 2.34
The case involved an application for the discovery of particular documents.35
The court defined litigation privilege36 as encompassing:
(1)
communications between the client’s professional legal advisers and
third parties, if made for the purpose of pending or contemplated litigation,
and
(2)
communications between the client or his agent and third parties, if
made for the purpose of obtaining information to be submitted to the client’s
professional legal advisers for the purpose of obtaining advice upon pending
or contemplated litigation.
28
29
30
31
32
33
34
35
36
The English position was followed in Singapore.
[1997] 2 SLR 629, at 630–631.
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 630–
631.)
[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.
14 SAcLJ
New Twists in Legal Professional Privilege
201
11
The court in The Patraikos No 2 did not go further to emphasise
that the purpose must be a dominant one and not merely one of several
purposes. This was made abundantly clear by the UK Law Reform
Committee in their report from which the above definition is taken.37
Moreover, the dominant purpose test was established as the proper test
by the Court of Appeal in Brink’s Inc and the High Court in Wee Keng
Hong and by various rulings in England.38
12
The other difficulty arising out of The Patraikos No 2 is the High
Court’s reliance on the English High Court case of Secretary of State
for Trade of Industry v Baker39 for the following critical observation of
Sir Richard Scott VC:
“... documents brought into being by solicitors for the purposes of
litigation were afforded privilege because of the light they might cast
on the client’s instructions to the solicitor or the solicitor’s advice to
the client regarding the 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
37
38
39
40
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.”
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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 case42 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 1986. 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
41
42
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.
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.44
16
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
43
44
45
46
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 1027. Both cases are
considered in Baker at 369–371.
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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.48
18
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.”54
19
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
47
48
49
50
51
52
53
54
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), 658–659 (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, 406–408, 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.
14 SAcLJ
New Twists in Legal Professional Privilege
205
observation was made by Bingham LJ in Ventouris v Mountain55 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 Partnership59 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.60
20
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...”.61 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
55
56
57
58
59
60
61
62
63
[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 1027.
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 243–244.
Baker, at 366.
Baker, at 364–369.
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.
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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.65
22
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
64
65
66
67
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), 658–659 (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.
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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
Mountain71 that litigation privilege may be claimed by a litigant in
person72 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”.74
68
69
70
71
72
73
74
Ibid, at 106.
[2000] 3 WLR 53.
Ibid, at 59–60.
[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.
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•
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.79
75
76
77
78
79
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, 531–532) 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.
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Lawyer and client privilege
COMMON LAW DEVELOPMENTS
CLIENT PRIVILEGE
IN RELATION TO THE ABSOLUTENESS OF LAWYER AND
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”.82
27
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
80
81
82
83
84
[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).
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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
85
86
87
88
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.
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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.”89
32
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.94
89
90
91
92
93
94
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).
Singapore Academy of Law Journal
212
MATTERS ARISING FROM HOUSE
SUBSEQUENT CASES.
(i)
OF
LORDS’
RULING IN
(2002)
DERBY MAGISTRATES
AND
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
disclosure98 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.)
97 See s 128(1)(a)of the Act.
98 Ibid, s 128(1). (Express consent is required: Yeo Ah Tee v Lee Chuan Meow [1962] MLJ
413.)
99 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).
100 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 1027.
101 Calcraft v Guest [1898] 1 QB 759.
102 See s 128(1)(b) of the Act.
95
96
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New Twists in Legal Professional Privilege
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requires disclosure.103 Although many of these qualifications were established
in the 19th century, recent authorities have shown that they are not fixed
or closed104 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 exclusion106 rather than a right which could
be lost through a variety of means.107
34
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 way108 to the greater
concern109 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
103 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 120.425.
104 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, 2000. In the Oxfordshire case,
Steyn LJ referred to a variety of exceptions and qualifications apart from waiver and
statutory provisions.
105 [1996] AC 487, at 509.
106 As suggested by Colin Tapper, “Prosecution and privilege” (1997) 1 International
Journal of Evidence and Proof 4, at 12–13.
107 See note 99.
108 Depending on the extent of the interest.
109 Which, according to Ataou, the accused must establish on a balance of probabilities.
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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.110
36
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.”114
110 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.
111 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.
112 [1978J AC 171, at 232.
113 See Marks v Beyfus (1890) 25 QBD 494, at 498.
114 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 120.450, 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.)
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38
Inexplicably, the House of Lords rejected the argument that the
balancing process in the context of public interest privilege should have any
bearing on client and lawyer privilege:
“... it by no means follows that because a balancing exercise is
called for in one class of case, it may also be allowed in another.
Legal professional privilege and public interest immunity are as
different in their origin as they are in their scope.”115
39
This elevation of client and lawyer privilege to a status above all
other rules of evidence116 is extreme and inconsistent with the law’s
priorities. There is no question that the protection of client and lawyer
communications in the interest of effective legal representation is one of the
great concerns of the administration of justice. However, to regard it as a
supreme rule117 which overrides all other priorities of the administration of
justice in any circumstances whatever is to fail to appreciate the flexibility
needed to take into account exceptional circumstances which may arise.
Moreover, if the balancing process is integral to the determination of
whether public interest privilege should give way to the need of an accused
person with all the concomitant dangers that the disclosure involves,118
there is no reason why lawyer and client privilege should be accorded a
more inviolate status. Unfortunately, Lord Taylor did not justify his view
that the balancing process could apply to public interest privilege but not
lawyer and client privilege.
40
It has been argued that lawyer and client privilege is not absolute
because it is subject to various established exceptions and qualifications.119
Accordingly, a further qualification which enables the accused to rely on
relevant evidence in his favour would not contradict the scheme of the law.
Such an approach would recognise that the public interest underlying
lawyer and client privilege, vital though it is, is merely one of several
competing public interests none of which is supreme and overriding in every
115 Ibid, at 508.
116 Lord Taylor states ([1996] AC 487, at 507): “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.”
117 Lord Lloyd agreed with Lord Taylor’s view (see extract immediately above) and added
that lawyer and client privilege is recognised as the ‘predominant public interest’. (Ibid,
at 509.) Lord Nicholls seemed to be more concerned with the practical difficulties
which the test might cause. (Ibid, 511–512.)
118 Ie, the danger to the public resulting from the disclosure of documents that would
normally be prevented in the interest of, for example, state security or some other
public concern.
119 See main text from notes 96-104. Also see note 4.
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(2002)
instance. Lawyer and client privilege is itself founded on competing public
interests: the encouragement of full and frank communications between
client and lawyer so that proper legal advice might be obtained and the
disclosure of all relevant evidence in the interest of proper adjudication.
However, as shown by the exceptions and qualifications to privilege, it is
only a general rule that lawyer and client privilege overrides the public
interest in full disclosure.
41
The balancing test is the fairest and most flexible method of determining
the competing interests of privilege and disclosure in respect of a document
which assists in the defence of the accused. Such a principle also recognises
that the accused’s opportunity to rely on relevant evidence in support of his
case is at least as important as client and lawyer privilege.120
(iii)
Can the balancing test resolve the perceived difficulties of
Lord Nicholls in Derby and of Brennan J in Carter v The
Managing Partner, Northmore Hale Davy & Leake &
Ors?121
42
Not all their Lordships in Derby came to their decisions on the basis
of the paramountcy of lawyer and client privilege. Lord Nicholls preferred
to rely on what he considered to be the practical difficulties involved in the
balancing approach:
“There are real difficulties here. In exercising this discretion the
court would be faced with an essentially impossible task. One man’s
meat is another man’s poison. How does one equate exposure to a
comparatively minor civil claim or criminal charge against prejudicing
a defence to a serious criminal charge? How does one balance a
client’s risk of loss of reputation, or exposure to public opprobrium,
against prejudicing another person’s possible defence to a murder
charge? But the difficulties go much further. Could disclosure also
be sought by the prosecution, on the ground that there is a public
interest in the guilty being convicted? If not, why not? If so, what
about disclosure in support of serious claims in civil proceedings, say,
where a defendant is alleged to have defrauded hundreds of people
of their pensions or life savings? Or in aid of family proceedings,
where the shape of the whole of a child’s future may be under
consideration? There is no evident stopping place short of the
balancing exercise being potentially available in support of all parties
120 See main text after note 109 (“(ii) Is there a basis for applying the balancing test ?”)
121 [1995] 183 CLR 121. See main text at note 131.
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217
in all forms of court proceedings. This highlights the impossibility of
the exercise. What is the measure by which judges are to ascribe
an appropriate weight, on each side of the scale, to the diverse
multitude of different claims, civil and criminal, and other interests of
the client on the one hand and the person seeking disclosure on the
other hand?”122
43
The underlying assumption of this statement that the interest of the
client in preserving his privilege should not be subject to a competing interest
is not representative of the current state of the law. The courts have, in
various situations, ruled that lawyer and client privilege must give way to a
competing interest.123 The judicial task in this process is difficult and
challenging but not impossible. Useful criteria may be judicially formulated
to guide the courts. To illustrate, a court might respond to the problems
raised by Lord Nicholls124 by concluding125 that a distinction must be made
between the need of an accused person and the prosecution to rely on
privileged information. A prosecution is normally brought on the basis of
sufficient evidence independently gathered by the police or other enforcement
agency on the basis of extensive statutory powers.126 The prosecution has
the resources of the government while the accused’s access to relevant
material is often limited.127 Surely, the danger of a wrongful conviction
must give rise to a greater concern than denying the prosecution access
evidence which should not be in the public realm in the first place.128
44
Lord Nicholls also compares the accused’s need to rely on evidence
to that of a litigant in a civil case. Here again, a distinction must be made
between a private dispute between parties and the public context of a
criminal trial which involves prosecution by a powerful organ of State and
the consequences of conviction (including the severity of punishment and
Ibid, at 511–512.
See note 119.
In the extract immediately above.
The author is merely postulating a possible approach to the problems raised by
Lord Nicholls.
126 In Singapore, the Criminal Procedure Code (Cap 68) and other statutes provide for the
powers, inter alia, of investigation and securing evidence.
127 Primarily because there is still no systematic discovery process in criminal cases in
Singapore. However, the prosecution is under a duty to disclose relevant evidence
which is not subject to legal prohibition. See Teh Lee Tong v R [1956] MLJ 194; Tay
Choo Wah v PP [1975–1977] SLR 470, [1976] 2 MLJ 95; Khoon Chye Hin v PP [1961]
MLJ 105.
128 Furthermore, there may be some basis for the view that a client would be less likely to
confide in his lawyer if he knows that there is a risk that the communication may one
day be used by the prosecution against another person.
122
123
124
125
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218
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public opprobrium). In short, the party to a civil case would generally be
in a less weighty position to demand that a person should give up his
privilege.129 Lord Nicholl’s question as to whether the privilege should give
way to the welfare of a child in family proceedings has already been
answered positively.130
45
In Carter v The Managing Partner, Northmore Hale Davy &
Leake & Ors,131 Brennan J was concerned that if the privilege gives way
to the needs of an accused, this may lead to the co-accused in a trial
requiring disclosure of their respective communications with their lawyers
with a view to inculpating each other. This “absurd anomaly”, as Brennan J
put it,132 is easily resolved by the normal principle of discovery that no
party is entitled to “fish” for evidence that might assist his case.133 The
threshold condition laid down by the Court of Appeal in Ataou should not
be forgotten: the accused person must, inter alia, establish on a balance of
probabilities that such a communication exists and that it would assist in
his defence and that his need is more weighty than the need to preserve the
privilege. It follows from this that even a person who is the sole accused
in a criminal trial should not assume that he will succeed. If, for example,
the communication is less significant to his defence than to the preservation
of the privilege, the test for overriding the privilege in Ataou would not be
met.
(iv)
What should the status of the privilege be if the person seeking
to uphold it no longer has an interest in doing so?
46
Where the client no longer has any interest in preserving his privilege
(ie, disclosure would not adversely affect him in any way), the document,
if relevant to the accused’s defence, should be disclosed without the need
for balancing the interests. It would be ludicrous for the law to allow a
person, who no longer has any interest in maintaining his privilege, to seal
the fate (in the form of the death penalty, caning or imprisonment) of an
129 The party to a civil case may have a stronger case where the civil wrong is, for example,
in the nature of a public or grave wrong as in the illustration given by Lord Nicholls (see
extract in the main text ending at note 122).
130 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.
131 [1995] 183 CLR 121.
132 Ibid, at 131.
133 This was also Toohey J’s view in Carter (ibid, at 157). In R v Dunbar & Logan (1982)
138 DLR (3d) 221, at 251, the Ontario Court of Appeal, in limiting the principle in R v
Barton, slated: “... an accused ought not to be required to disclose privileged information,
the disclosure of which might assist a co-accused to the detriment of the co-accused who
is required to disclose the privileged communication”.
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New Twists in Legal Professional Privilege
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innocent accused at whim. Even Lord Nicholls in Derby indicated that he
would not have been prepared to allow the privilege to override the interest
of an accused person in such circumstances:134
“I would not expect the law, based explicitly on considerations of the
public interest, to protect the right of a client when he has no interest
in asserting the right and the enforcement of the right would be
seriously prejudicial to another in defending a criminal charge or in
some other way.”135
47
In R v Dunbar and Logan,136 Martin JA, in delivering the judgment
of the Ontario Court of Appeal, stated:
“No rule of policy requires the continued existence of the privilege
in criminal cases when the person claiming the privilege no longer
has any interest to protect, and when maintaining the privilege might
screen from the jury information which would assist an accused.”137
(v)
The “innocence at stake” test.
48
The most recent authority on the nature of the status of lawyer and
client communications is R v McClure,138 a decision of the Canadian
Supreme Court. The accused was charged with committing sexual offences
on several complainants. He sought production of documents from the
complainants including a file which included communications between a
complainant and his lawyer in relation to a civil suit by the complainant
against the accused concerning the same matter. The accused’s objective
was to find documents which might show that the complainant had a motive
to exaggerate or even fabricate evidence. The trial court ordered the file
to be disclosed.
134 The issue did not arise in the case because the person claiming the privilege did have an
interest in preserving his reputation.
135 [1996] AC 487, at 513. Also see the dissenting judgments of Toohey and Gaudron JJ in
Carter. The majority of the House of Lords in Derby (Lord Taylor and Lord Lloyd) and
the majority of the High Court of Australia in Carter (Brennan, Deane and McHugh JJ)
justified this outcome (in the context of imprisonment alone as these countries do not
impose capital or corporal punishment) on the basis that even the slightest erosion of
the privilege would compromise candour in the lawyer and client relationship.
136 R v Dunbar & Logan (1982) 138 DLR (3d) 221, at 252.
137 The court cited the following extract from Cross on Evidence, 5th Ed, p 286: “A time
may come when the party denying the continued existence of the privilege can prove
that the party relying on it no longer has any interest to protect, as where the solicitor
for the unsuccessful plaintiff in a civil action takes a statement from a witness who is
subsequently prosecuted for perjury, and the prosecution wish to ask the solicitor what
the witness said to him.” Also see R v Craig 1 NZLR 597, at 599. Note that the
position in Canada was subsequently reformulated by the Supreme Court in R v McClure
[2001 ] SCR 445. See under the next heading, “The innocence at stake test”.
138 [2001] 1 SCR 445.
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49
The Supreme Court ruled that the file should not have been disclosed.
While the Supreme Court acknowledged the importance of maintaining the
confidentiality of lawyer and client communications,139 it did not adopt the
absolutist approach of the House of Lords in Derby. The Supreme Court
accepted that lawyer and client privilege had to give way if the accused’s
innocence was at stake.140
50
The court formulated a two-stage test for the determination of the
issue. Prior to the application of this test, however, the accused had to
“establish that the information he is seeking ... is not available from any
other source and he is otherwise unable to raise a reasonable doubt as to
his guilt in any other way”. 141 If he achieves this task, the court proceeds
with the test. The first stage involves a review by the trial judge of the
document. The trial judge must ask himself:
“Is there some evidentiary basis for the claim that a lawyer-client
communication exists that could raise a reasonable doubt about the
guilt of the accused?”
51
It is for the accused to show that the privileged communication could
raise a reasonable doubt “in the light of what [he] knows”. Mere speculation
that there is a such a document would not be sufficient to satisfy this test.
The court considers the communication in conjunction with other available
evidence to determine its significance (ie, whether it could raise a reasonable
doubt).142 The court added that “when the accused is either challenging
credibility or raising collateral matters, it will be difficult to meet the
standards required of stage one”.
52
If the accused can show that the communication could raise a
reasonable doubt in the context of stage one, the judge then proceeds to
stage two with the following question:
“Is there something in the solicitor-client communication that is likely
to raise a reasonable doubt about the accused’s guilt?”
139 “Unless individuals can be certain that their communications with their solicitors
will remain entirely confidential, their ability to speak freely will be undermined”. (Ibid,
at 463.)
140 Ibid.
141 Ibid, at 464.
142 The court stated that “It is the totality of the evidence which counts”. (Ibid, at 466.)
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New Twists in Legal Professional Privilege
221
The Supreme Court explained:143
“In most cases, this means that, unless the solicitor-client
communication goes directly to one of the elements of the offence,
it will not be sufficient to meet this requirement. Simply providing
evidence that advances ancillary attacks on the Crown’s case (eg
by impugning the credibility of a Crown witness, or by providing
evidence that suggests that some Crown evidence was obtained
unconstitutionally) will very seldom be sufficient to meet this
requirement.
The trial judge does not have to conclude that the information
definitely will raise a reasonable doubt. If this were the case, the trial
would effectively be over as soon as the trial judge ordered the
solicitor-client file to be produced. There would be nothing left to
decide. Instead, the information must likely raise a reasonable doubt
as to the accused’s guilt.”
54
According to the court, if the judge, in reviewing the material, himself
comes across a communication which he believes is likely to raise a
reasonable doubt, that communication can be disclosed in favour of the
accused even in the absence of argument (at stage one) by the accused.
(vi)
Is the “innocence at stake” exception to be preferred to the
balancing test?
55
The “innocence at stake” test is not entirely new. It has been seen
in Ataou and other casesl44 that the privilege may have to give way when
the communication is necessary to the defence of the accused.145 What the
Supreme Court did in McClure was (a) to formulate this principle as an
exception to the general rule rather than a balancing process to be applied
on a case by case basis and (b) to provide a more specific procedure (in
the form of a two-stage test) for the determination of the issue. The interest
or lack of interest of the person maintaining the privilege is irrelevant. The
primary question is whether the accused can show at stage two that the
communication “is likely to raise a reasonable doubt”. 146
143 Ibid, at 466–467.
144 Such as Barton (see main text at note 81), Craig (note 110) and Dunbar (main text at
note 136).
145 See main text from note 83.
146 Ie, the criteria in stage two of the test.
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56
The Supreme Court emphasised that the lawyer and client privilege
“... is a cornerstone of our judicial system and any impediment to open
candid and confidential discussion between lawyers and their clients will be
rare and reluctantly imposed”. It pointed out that the two-stage test would
not be easy to satisfy: “The difficulties described in successfully overcoming
solicitor-client privilege illustrate the importance and solemnity attached to
it.”147 There is no question it would be dangerous to erode as important a
principle as legal professional privilege. However, the approach of the
Supreme Court raises some important concerns in relation to the safety of
convictions.
57
In the first place, the pre-condition to the two-stage test – that the
communication must be the only source of the information he seeks148 –
may penalise the accused in the context of the weight of the evidence which
he needs to adduce in order to raise a reasonable doubt. The accused is
likely to put up a stronger case if the information in the communication is
supported by another independent and reliable source(s) of the same
information.149 The additional source of evidence may, indeed, be crucial
to his case.
58
Secondly, the condition in stage two of the McClure test that the
accused show that the communication “is likely to raise a reasonable doubt”
as to his guilt is certainly stricter than the standard set in former cases. For
example, in Ataou, the court stated that the accused would be entitled to
rely on a privileged communication if he could establish that his interest
outweighed the interest of the client seeking to maintain the privilege.
Therefore, if the accused could show that the communication could support
his defence and that the person claiming the privilege had very little or no
interest in maintaining the privilege (put another way, his claim to privilege
is less weighty than the accused’s need to rely on the communication), the
Ataou test for production would be satisfied irrespective of whether the
accused could satisfy the McClure standard that the communication “is
likely to raise a reasonable doubt”.150
59
Thirdly, the Supreme Court admonished that a communication used
to challenge credibility or to raise collateral matters will “very seldom be
sufficient to meet this requirement.”151 It is not entirely clear why this
restriction is necessary. There may be circumstances in which a privileged
[2001] SCR 445, at 467.
See main text at note 141.
Particularly if there are doubts concerning the content of the communication.
The Supreme Court in McClure quite rightly pointed out that mere speculation about
the relevancy of the communication would not be sufficient. (See main text at note 145.)
151 See main text after note 143.
147
148
149
150
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New Twists in Legal Professional Privilege
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communication may be used in cross-examination to destroy the credibility
of a prosecution’s witness whose testimony might otherwise establish the
case against the accused beyond a reasonable doubt. Surely, the privilege
should give way in such a situation in as much as it would give way where
the communication “goes directly to one of the elements of the offence”.152
60
Fourthly, there is this passage:
“In determining whether or not the solicitor-client communication in
question is likely to raise a reasonable doubt as to the guilt of the
accused, the trial judge should consider that the communication in the
solicitor-client file cannot be marginal but must be sufficient to
establish the basis for its admission. It is the totality of the evidence
then available that the trial judge considers in determining whether
it is likely that the evidence can raise a reasonable doubt.”153
61
With respect, this statement is not entirely clear. A communication
which is marginal in its own context may be quite significant when viewed
as part of the totality of the evidence and vice versa. It is assumed that
what the court meant to say was that the communication must be considered
together with the other evidence in the case to determine whether it (the
communication) is likely to raise a reasonable doubt as to the accused’s
guilt.
62
The Supreme Court should be commended for rejecting the absolutist
view promulgated by the House of Lords in Derby. However, its preference
for an exception to the general rule over the balancing process (as advocated
in Ataou) may make the process more arbitrary than necessary. The issue
of whether the person claiming the privilege still has an interest in maintaining
it can often make the difference where the communication could potentially
assist the defence. If the person claiming the privilege has little or no
interest in maintaining it, the balance would be in favour of disclosure.
However, unless the accused could establish the higher standard of showing
a likelihood that the communication would raise a reasonable doubt, he
would fail under the McClure test. From the point of view of the
reasonable person claiming the privilege, one would suppose that he would,
in most situations, not be less candid in his communications with his lawyer
if he knew that they might have to be disclosed at a time when he has
insignificant or 770 interest in confidentiality, and that the evidence may
avoid a wrongful conviction.
152 [2001] SCR 445, at 467.
153 Ibid.
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63
The McClure test is also unsatisfactory because there may be
circumstances in which the judge, in deciding whether or not to allow
production of the communication, concludes that it could make the difference
between conviction and acquittal but cannot go as far as deciding that it is
likely to do so (the second stage of the test of the McClure test). In these
circumstances, the privilege would be upheld even if the privilege-holder no
longer has any interest in maintaining his right.
SHOULD DERBY MAGISTRATES
BE FOLLOWED IN
SINGAPORE?
64
It is submitted that the Singapore courts should decline to follow the
lead of the House of Lords in Derby Magistrates, even though a literal
interpretation of the pertinent sections of the Evidence Act (ss 128–131) is
consistent with the ruling in that case.154 These provisions do not expressly
recognise the relinquishment of the privilege where an accused person
needs to refer to the communication for the purpose of his defence. The
only stipulated exceptions involve circumstances in which the client consents
to disclosure155 or waives his privilege;156 or the communication is made in
furtherance of an illegal purpose157 or concerns a fact observed by the
lawyer in the course of his work revealing the commission of a crime after
he took on the case.158 Nor do ss 128–131 provide a process for balancing
the interest of the person entitled to the privilege and the person who seeks
disclosure of the privileged communication.159
65
It has been argued that the soundness of the absolutist approach is
very much in doubt. It would be particularly inappropriate in the context of
the Singapore legal system which imposes capital and corporal punishment
for many crimes and which requires the accused in a variety of instances
to carry the burden of proof through the rebuttal of presumptions160 or the
154 Most likely because the circumstances in which a privileged communication might be
necessary for an accused person’s defence was not contemplated at the time of the Act.
155 Pursuant to s 128.
156 Pursuant to s 130 or 131.
157 Pursuant to s 128(a).
158 Pursuant to s 128(b).
159 In R v Chhoa Mui Sai [1937] MLJ 236, the Straits Settlement Supreme Court determined
that cross-examination of the prosecution witness (complainant) concerning
communications between her and her lawyer should not have been allowed. No argument
was raised as to whether such cross-examination was necessary to the defence of the
accused. The court also determined that the communications were not relevant to the
issues.
160 See, for example, the Misuse of Drugs Act (Cap 185) which applies, inter alia,
presumptions of possession, knowledge and trafficking.
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225
establishment of exceptions to liability on a balance of probabilities.l61 As
the evidential rules are more burdensome for the accused in Singapore than
many other common law countries, particular consideration should be given
to the accused to ensure that he is able to adduce sufficient evidence to
establish a defence, rebut a presumption or refute the prosecution’s case.
66
The answer is, as it has been in so many other situations before the
Singapore courts, to apply a purposive construction to the provisions in the
Evidence Act. Indeed, this would not be the first time that the balancing
approach is applied on a purposive basis. In Lee Kwang Peng v PP,162 the
High Court decided to adopt the common law balancing test concerning the
admissibility of similar fact evidence in the context of s 11 (b) of the
Evidence Act, a provision which was never intended by the scheme of the
Act to admit such evidence and which does not actually apply a balancing
mechanism.163
67
Furthermore, a distinction should be made between English and
Singapore jurisprudence. Lord Taylor considered lawyer and client privilege
to be “more than a rule of evidence” and “a fundamental condition on which
the administration of justice as a whole rests”.164 His Lordship classified
it as “a fundamental human right” protected by the European Convention
for the Protection of Human Rights and Fundamental Freedoms (1953).165
There does not appear to be an indication in the speeches of the House of
Lords that it is a fundamental right that an accused receives a fair trial and,
to this end, be entitled to rely on relevant and admissible evidence in support
of a defence or to refute the prosecution’s case.
68
If Lord Taylor’s characterisation of the privilege as it stands in
England is correct, it is certainly not representative of the law in Singapore.
The various privileges recognised by the Evidence Act are formulated as
ordinary rules of evidence undistinguished from the other provisions. The
European Convention for the Protection of Human Rights and Fundamental
Freedoms does not operate in Singapore and the Singapore Constitution
does not acknowledge lawyer and client privilege as a fundamental right.166
161 See, for example, s 107 of the Act; Jayasena v R [1970] AC 618.
162 [1997] 3 SLR 278.
163 Other examples of the application of the purposive approach to provisions of the
Evidence Act include: PP v Knight Glenn Jeyasingam [1999] 2 SLR 499; Tan Meng Jee
v PP [1996] 2 SLR 422; Poh Kay Keong v PP [1996] 1 SLR 209; PP v Heah Lian Khin
[2000] 3 SLR 609.
164 The extract of this part of the judgment is set out in the main text after note 87.
165 Cmd. 8969.
166 Although access to, and representation by, a lawyer are constitutionally entrenched
rights pursuant to Art 9(3) of the Constitution.
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However, the Constitution is concerned with a fair trial and equality
between the parties.167 The underlying assumption of the direction that “No
person shall be deprived of his life or personal liberty save in accordance
with law” is a fair trial and a law which provides the accused with a proper
opportunity to respond to the prosecution’s case on the basis of relevant and
reliable evidence. Hence, Major J acknowledged, in delivering the judgment
of the Supreme Court in McClure:
“The right of the innocent not to be convicted is reflected in our
society’s fundamental commitment to a fair trial ... l68 It has long
been recognised that an essential facet of a fair hearing is the
opportunity adequately to state [one’s] case. This applies with
particular force to the accused.”169
Litigation privilege
69
The issue of whether litigation privilege is absolute has arisen only
very recently. It is clear that in Derby, the House of Lords were specifically
concerned with a communication which attracted lawyer and client privilege.
As litigation privilege was not an issue in that case, it may be said that the
case is not authority for the proposition that litigation privilege is absolute.
Indeed, in Re L (a minor),170 the majority of the House of Lords171
reiterated that lawyer and client privilege is absolute but that this
principle did not apply to communications protected by litigation privilege.
Accordingly, a medical report obtained by a parent from a consultant
pathologist (prepared for the pending wardship proceedings)172 concerning
the circumstances of the consumption of a drug by a child, could be
disclosed to the police so that they could determine whether the parent
should be prosecuted. Lord Jauncey, who delivered the judgment of the
majority, said:173
“It is clear from the reasoning of Lord Taylor CJ and of the other
members of the committee [in Derby] that the reference to legal
professional privilege was in the context of the relationship between
solicitor and client. Indeed, there was no occasion to consider
whether and in what other circumstances absolute legal professional
privilege might apply.”
167 See, in particular, Arts 9(1)–(4) and 12(1) of the Constitution.
168 The court referred to s 1 l(d) of the Canadian Charter of Rights and Freedoms, which
embodies this principle.
169 [2001 ] 1 SCR 445, at 460–461.
170 [1997] AC 16.
171 Lords Jauncey, Lloyd and Steyn. Lords Nicholls and Mustill dissented.
172 Therefore, litigation privilege applied to the report.
173 Ibid, at 24.
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70
Lord Jauncey rejected the contention that “the absolute nature of
the privilege attaching to the lawyer and client relationship extended equally
to all other forms of legal professional privilege”:174
“There is ... a clear distinction between the privilege attaching to
communications between solicitor and client and that attaching to
reports by third parties prepared on the instructions of a client for the
purposes of litigation. In the former case, the privilege attaches to
all communications whether related to litigation or not, but in the
latter case it attaches only to documents or other written
communications prepared with a view to litigation. There is this
further distinction that whereas a solicitor could not without his
client’s consent be compelled to express an opinion on the factual or
legal merits of the case, a third party who has provided a report to
a client can be subpoenaed to give evidence by the other side and
cannot decline to answer questions as to his factual findings and
opinion thereon. There is no property in the opinion of an expert
witness.” 175
71
In S County Council v B,176 which involved care proceedings in
relation to a child who had suffered injuries, Charles J ruled that the father
should not be required to disclose a medical report prepared for the purpose
of separate criminal proceedings against him for causing grievous bodily
harm177 to that child. Charles J reached a different conclusion from that
of the majority of the House of Lords in Re L.178 The learned judge
expressed the view that although Derby Magistrates is concerned with
lawyer and client privilege, the decision in that case affected litigation
privilege as well:179
“... in my judgment, although the actual decision in [Derby] relates
only to communications between a client and his solicitor, the effect
of the decision is not so confined. Rather, in my judgment, it is
authority for the proposition that when material is subject to legal
professional privilege the person who can claim that privilege has an
absolute right to do so and thus to refuse disclosure.”
174 Ibid, at 24–25.
175 An important aspect of the case is that the report was prepared for the purpose of the
care proceedings. As such proceedings are non-adversarial in nature and are primarily
concerned with the welfare of the child, the court will not uphold a claim for litigation
privilege where this would hinder the purpose of the proceedings.
176 [2000] 3 WLR 53. The case is cited in main text at note 69.
177 Therefore, the report was protected by litigation privilege.
178 The learned judge conceded that he would be wrong if Lord Jauncey’s view (see extract
immediately above) is ‘read in isolation’ rather than “in context”. (Ibid, at 70.)
179 [2000] 3 WLR 53, at 63–64.
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72
Charles J preferred to equate lawyer180 and client privilege and
litigation privilege on the basis that they are “based on the development and
application of the same underlying public interest and reasoning”.181 This
conclusion is questionable in the face of the different aims of these privileges.
One ensures that the client is encouraged to candidly disclose all relevant
information so that he may be properly represented and advised. The other
is specifically concerned with maintaining the confidentiality of third party
communications which might otherwise reveal the party’s personal strategy
or approach to the case.182 According to the House of Lords in Derby, the
absoluteness of the lawyer and client privilege arises from the concern that
the client would be less than candid if he knew that the communications
between him and his lawyer could one day be disclosed. This apprehension
does not apply to the same extent in the context of third party communications.
This is evident from the fact that a third party (for example, an expert
witness) may be compelled183 to give evidence on the issues at trial even
though his report to the lawyer or client attracts litigation privilege.184 The
overlap between litigation privilege and lawyer and client privilege
occurs where the third party communication reveals the advice or other
communications protected by lawyer and client privilege. In these
circumstances, the latter privilege would operate.
73
It is clear that litigation privilege is not, and should not be, absolute.
As has been shown, the third party may be compelled to give evidence at
trial.185 It is also well established that litigation privilege is subject to the
overriding interests of a child in care proceedings.186 There is no reason
why the balancing approach established in Ataou should not apply so that
the court may determine whether one competing interest should override
another. If, for example, a report is obtained from a medical expert for the
purpose of determining whether the assured died from accidental causes in
an insurance action, its disclosure to the prosecution or accused in separate
criminal proceedings should depend on the prioritisation of the interests
Ibid, at 62.
Ibid, at 64.
The differences between the privileges have been discussed in the course of this article.
Normally, he would give evidence voluntarily for the party who calls him. He may be
subpoenaed by the opponent.
184 As pointed out by Lord Jauncey in Re L (A minor). (See the extract of his judgment in
the main text after note 174.) In practice, a party who wishes to rely on his expert’s
evidence at trial normally waives litigation privilege and discloses the report to the other
party and the court with a view to establishing the expert’s opinion in court.
185 Ibid.
186 See notes 104, 130, 183 and 190.
180
181
182
183
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New Twists in Legal Professional Privilege
229
involved. If the accused or prosecutor can show that the report is necessary
for his defence or the prosecution respectively, and the party who
commissioned the report in the civil claim has a lesser interest or no interest
in preserving the privilege, the document should be disclosed.
Conclusion
74
In conclusion, it may be said of litigation privilege that the Singapore
High Court in The Patraikos No 2 ought not to have accepted Sir Richard
Scott VC’s formulation in Baker as declaratory of the law governing
litigation privilege. It runs contrary to pre-existing authorities in both
Singapore and England and has been criticised.187 The question arises as
to how a Singapore court is likely to treat this development in the future.
The argument could be raised that litigation privilege militates against the
modern practice of “cards on the table litigation”. This consideration may
well have underpinned Sir Richard Scott VC’s self-proclaimed inability to
“identify” a public interest in litigation privilege merely on the basis of the
dominant purpose test.l88 The answer to this is that the policy of disclosure
before trial in the interest of justice essentially applies to evidence.189 While
relevant evidence is common property for the purpose of trial (no matter
which party controls or possesses it), and should be made available to all
concerned in the interest of proper adjudication, the manner in which the
advocate and solicitor strategises and prepares his case for trial is personal
to him and his client. As has been pointed out in so many cases, the
advocate (or unrepresented party) must be able to go about his own work
without interference or the worry that everything he does will be open to
the opposing party’s or public scrutiny.190
75
With regard to lawyer and client privilege, the argument has been
made in this article that the absolutist approach in Derby Magistrates
Court should not be endorsed by the Singapore courts. Important though
it is, the exceptions and qualifications to this privilege indicate that in certain
limited circumstances the privilege must give way to other public interest
considerations. The balancing process advocated by the English Court of
Appeal in Ataou appears the fairest method for resolving the conflict
according to the circumstances of each case. As far as the Evidence Act
187 See S County Council v B [2000] 3 WLR 53.
188 See main text from note 41.
189 For example, in the form of broader discovery and the exchange of affidavits of the
evidence in chief well before trial.
190 Kennedy v Lyell (1883) 23 Ch D 387, at 404; Law Reform Committee, 16th Report,
1967, para 17.
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Singapore Academy of Law Journal
(2002)
is concerned, a purposive approach to provisions governing the privilege is
advocated in the overall interest of justice. The issue of whether litigation
privilege is an absolute doctrine has given rise to divergent views.191 Again,
it has been argued that the absolutist approach should not be adopted and
that the balancing process should be applied.
JEFFREY PINSLER*
191 By the House of Lords in Re L (A minor) and the High Court in S County Council v B.
*
LLB (Liverpool), LLM (Cantab); Barrister (MT); Advocate and Solicitor (Singapore);
Professor, Faculty of Law, National University of Singapore.