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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 controversialissues in recent years as a result of case law developments in England. Thisis of particular relevance to Singapore because the High Court here hasapplied the view of the English High Court in Secretary of State for Tradeof Industry v Baker1 which, it is submitted, runs contrary to authority inEngland and is inconsistent with the position previously taken by the HighCourt and the Court of Appeal in Singapore. This particular controversyconcerns what has previously been referred to as the privilege in respectof “materials for evidence” or “communications with third parties” and isnow 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 effectthat the privilege which attaches to a communication between a lawyer andclient cannot be breached even if the communication is essential to thedefence of a person accused in criminal proceedings. This almost absolutedoctrine (there are established but limited exceptions) must be consideredin the context of Singapore law which has yet to declare the outcome of apotential conflict between the interest in maintaining the privilege and theinterest 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 doctrinesof lawyer and client privilege and litigation privilege. Communications3

between a lawyer and his client made in the course and for the purpose

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[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 theEvidence Act (hereinafter referred to as the Act). Also see Balabel v Air India [1988] 2All ER 246, at 254, where the Court of Appeal stated: “In most solicitor and clientrelationships, especially where a transaction involves protracted dealings, advice maybe 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 notcompellable) to disclose these communications.5 As far as the client isconcerned, he is not obliged to disclose any communication betweenhimself and his “legal professional adviser”6 unless he waives or gives uphis right to the privilege; for example, by express consent,7 by voluntarilygiving evidence on the very matter to which those communicationspertain8 or questioning the advocate and solicitor (as a witness) on suchmatters.9 The rationale of the privilege is that effective legal representationdepends on the candid disclosure of information to the lawyer.10

continuum of communication and meetings between the solicitor and client. Thenegotiations for a lease such as occurred in the present case are only one example. Wheninformation is passed by the solicitor or client to the other as part of the continuumaimed 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 suchwords as ‘please advise me what I should do’. But even if it does not, there will usuallybe 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 isnot confined to telling the client the law; it includes advice as to what should prudentlyand sensibly be done in the relevant legal context.”Concerning communications in furtherance of any illegal purpose and facts observed byan advocate and solicitor revealing the commission of a crime or fraud since the time ofhis appointment (provisos (a) and (b) to s 128(1)).Ibid.See s 131 of the Act.Ibid, s 128(1).Ibid, s 131.Ibid, s 130.For this is the basis on which the lawyer can effectively advise the client as to his rights,duties, liabilities and immunities as well as how to proceed. In Ventouris v Mountain(The Italia Express) [1991] 1 WLR 607, at 611, Bingham LJ stated: “The doctrine oflegal professional privilege is rooted in the public interest, which requires that hopelessand exaggerated claims and unsound and spurious defences be so far as possible settledwithout resort to judicial decision. To this end it is necessary that actual and potentiallitigants, be they claimants or respondents, should be free to unburden themselveswithout reserve to their legal advisers, and their legal advisers be free to give honest andcandid advice on a sound factual basis, without fear that these communications may berelied on by an opposing party if the dispute comes before the court for decision. It isthe protection of confidential communications between client and legal adviser whichlies at the heart of legal professional privilege ... Without the consent of the client, andin the absence of iniquity or dispute between client and solicitor, no inquiry may bemade into or disclosure made of any instructions which the client gave the solicitor orany advice the solicitor gave the client, whether in writing or orally.” Also see R v DerbyMagistrates Court [1996] AC, at 507, where Taylor CJ said: “The principle which runsthrough all these cases, and the many other cases which were cited, is that a man mustbe able to consult his lawyer in confidence, since otherwise he might hold back half thetruth. The client must be sure that what he tells his lawyer in confidence will never berevealed without his consent. Legal professional privilege is thus much more than anordinary rule of evidence, limited in its application to the facts of a particular case. It isa fundamental condition on which the administration of justice as a whole rests.”

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

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

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

5 In Ventouris v Mountain,13 Bingham LJ accepted as correctDenning 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 extendsto all communications between the client and his legal adviser for thepurpose of obtaining advice. It exists whether litigation is anticipatedor not. The second only attaches to communications which at theirinception come into existence with the dominant purpose of beingused in aid of pending or contemplated litigation. That was settledby the House of Lords in Waugh v British Railways Board [1980]AC 521. It is not necessary that they should have come intoexistence at the instance of the lawyer. It is sufficient if they havecome into existence at the instance of the party himself – with thedominant purpose of being used in the anticipated litigation. TheHouse approved of the short statement by James LJ in Anderson vBank of British Columbia (1876) 2 Ch D 644, 656: ‘... as you haveno right to see you adversary’s brief, you have no right to see thatwhich comes into existence merely as the materials for the brief.’”

Indeed, this is carried to the extent that a confession of guilt by a client to his lawyermay not be disclosed by the latter to the court. (See illustration (a) to s 128.) Thisprivilege is often referred to as “legal advice privilege” (because the client is encouragedto be forthcoming so that he can be properly advised), and, although it does not dependfor its operation on the existence or even contemplation of litigation, it applies to arelatively narrow range of documents as compared to litigation privilege. (See theextract 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 inlitigation whether pending or anticipated. The principle is that confidentialcommunications between an advocate and solicitor (or his client) and athird party made for the sole or dominant purpose of litigation areprotected from disclosure.15 The rationale is connected to the adversarialnature of proceedings. Non-disclosure is justified on the basis that as suchcommunications are closely connected to, and bear upon, the party’s or hisadvocate’s approach (including strategy and preparation) to the litigation,their revelation to the other litigants may compromise the efficacy ofthe adversarial system in discovering the truth through the clash ofindependent views. Bray justified the privilege on the basis that suchcommunications:16

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

7 In Lee v South West Thames Health Authority,18 Donaldson MRstated that a party should be free to collect evidence for his case withoutthe fear of revealing the nature of his research. Again, in Robert Hitchinsv International Computers Ltd,19 Simon Brown LJ said of the policyunderlying litigation privilege that it “must surely be to enable parties orprospective parties to prepare properly for litigation in the confidence thatothers thereafter will not be entitled to examine and perhaps profit fromtheir preparatory documentation”. Litigation privilege has also been justifiedon the same basis as the privilege governing lawyer and clientcommunications; namely, that it encourages third parties to be candid in the

See, for example, Brink’s Inc & Anor v Singapore Airlines Ltd & Anor [1998] 2 SLR 657;Wee Keng Hong Mark v ABN Amro Bank NV [1997] 2 SLR 629; Waugh v BritishRailways 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 thatwhich comes into existence merely as materials for the brief...”. More recently,Donaldson MR rationalised the principle on the basis that “... a defendant or potentialdefendant shall be free to seek evidence without being obliged to disclose the result ofhis researches to his opponent”. (Lee v South West Thames Health Authority [1985] 1WLR 845, at 850.)[1985] 1 WLR 845, at 850.Unreported, December 10, 1996.

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information they provide for the purpose of litigation.20 Such candour is inthe interest of the administration of justice because the litigant is madecognisant of the legal reality of his position and because truthful informationensures proper adjudication. In turn, this ensures that the client can beproperly advised.21 The recognition of litigation privilege dates as far backas 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 andclient communications.24 The provision is to the effect that the lawyer25 isnot permitted (unless the client expressly consents) “to disclose anycommunication made to him in the course and for the purpose of hisemployment... by or on behalf of his client”. Furthermore, he is prohibitedfrom stating the “contents or condition of any document with which he hasbecome acquainted with in the course and for the purpose of his professionalemployment”. And, of course, he must not reveal the legal advice whichhe 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 havepassed between him and legal professional adviser.26 However, litigationprivilege has been acknowledged by more recent statutes.27

Lord Wilberforce stated in Waugh v British Railways Board L1980] AC 521, at 531: “Amore powerful argument to my mind is that everything should be done in order toencourage anyone who knows the facts to state them fully and candidly ... This he maynot 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 ofBritish 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 ChD 675, at683 (Brett LJ), 684–685 (Cotton LJ).Probably because the statute was based on the Indian Evidence Act of 1872 (introducedto Singapore in 1893), which was formulated at a time when the privilege had not yetbeen fully established.The provisions pertinent to legal professional privilege are ss 128–131. They have beenreferred to in the text and notes.Section 128 uses the terminology “advocate or solicitor”. This means “advocate andsolicitor”. 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 communicationsare “necessary” to explain the evidence which he gives as a witness. “Legal professionaladviser” 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 ands 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 Singaporeeven before the first reported decision on the doctrine28 in Wee Keng HongMark v ABN Amro Bank NV.29 In that case, Rubin J applied the Englishauthorities30 and determined that an investigation report commissioned bythe defendant bank in proceedings against it for, inter alia, breach of duty,had not been made for the dominant purpose of litigation.31 This dominantpurpose test was applied by the Court of Appeal in Brink’s Inc & Anorv Singapore Airlines Ltd & Anor32 in relation to a report made by lossadjustors concerning the loss of goods. The court ruled that the report wasnot 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 thesubsequent 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 andthird parties, if made for the purpose of pending or contemplated litigation,and

(2) communications between the client or his agent and third parties, ifmade for the purpose of obtaining information to be submitted to the client’sprofessional legal advisers for the purpose of obtaining advice upon pendingor contemplated litigation.

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 AllER 32The court stated: “There is no indication anywhere in the documents tendered duringthe proceedings that the investigation report was for the purposes of placing it beforethe Bank‘s legal advisors although the writ [had been issued]. ... Apart from thesubmission by the plaintiff’s counsel that the report is privileged and a very generalaverment [in an affidavit], there is no further material to suggest that the investigationwas undertaken with a view to placing the report before the Bank’s legal advisors eventhough 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 othercommon law authorities.[2001] 4 SLR 308.Pursuant to the former Order 24, rule 7(3) (now Order 24, rule 5(3)) of the Rules ofCourt, 1997).This definition of litigation privilege was adopted from the 16th report of the UK LawReform Committee (“Privilege in Civil Proceedings”), 1967, paras 17 and 18.

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11 The court in The Patraikos No 2 did not go further to emphasisethat the purpose must be a dominant one and not merely one of severalpurposes. This was made abundantly clear by the UK Law ReformCommittee in their report from which the above definition is taken.37

Moreover, the dominant purpose test was established as the proper testby the Court of Appeal in Brink’s Inc and the High Court in Wee KengHong and by various rulings in England.38

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

“... documents brought into being by solicitors for the purposes oflitigation were afforded privilege because of the light they might caston the client’s instructions to the solicitor or the solicitor’s advice tothe client regarding the conduct of the case or on the client’sprospects.

There was no general privilege that attached to documents broughtinto existence for the purposes of litigation independent of the needto keep inviolate communications between client and legal adviser.If documents for which privilege was sought did not relate in somefashion to communications between client and legal adviser, therewas no element of public interest that could override the ordinaryrights of discovery and no privilege.”

13 Applying this principle to the facts, the High Court in The PatraikosNo 2 ruled that litigation privilege did not extend to the documents inquestion as they did not reveal the nature of the communications betweenlawyer and client.40 Again, this approach is inconsistent with the view ofthe Court of Appeal in Brink’s Inc. There, Karthigesu JA made noreference to this additional consideration of whether the third partycommunication reveals communications between the lawyer and his client.The Court of Appeal decided the matter purely on the basis that there wasinsufficient evidence to establish that the survey report had been made for

Ibid.Such as Waugh v British Railways Board [1980] AC 521; Ventouris v Mountain [1991]1 WLR 607; Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1WLR 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 theprivilege, the defendants had to show that the faxes sent by SRT to Dioryx eitherreflected the defendants’ instructions to SRT in some way, or somehow gave an indicationof the legal advice that SRT would be giving the defendants; this they failed to do.”

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the sole or dominant purpose of litigation. The point is that the Court ofAppeal would have been prepared to confer the privilege had the dominantpurpose test been met even though the survey report would not haverevealed communications between lawyer and client. Similarly, in WeeKeng Hong, Rubin J indicated that he would have upheld the privilege ifthe investigation report commissioned by the bank had been made for thedominant purpose of litigation. No reference was made by the learnedjudge to any condition requiring the protection of communications betweenthe 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 thelatter. However, it is submitted that even if Baker had been available tothe Court of Appeal in Brink’s Inc, the Court of Appeal would haverecognised that Sir Richard Scott VC’s observation in Baker was notpertinent to the final outcome of that case42 and that, in any event, it runsagainst established authority. Alternatively, the Court of Appeal might havedistinguished Baker on the basis that that case concerned the disclosure ofa document specifically required by statute. It is necessary to considerBaker in the context of pre-existing cases to determine whether it is likelyto have any future influence on the law of professional privilege in Singapore.

15 In Baker, the Administrators of Barings Bank prepared andsubmitted a report concerning the conduct, inter alia, of its formerdirectors to the Secretary of State as required by s 7(3) of the CompanyDirectors Disqualification Act 1986. The Secretary of State then initiateddisqualification proceedings against the directors concerned. In the courseof these proceedings, the court ordered discovery of various documentsincluding the report prepared by the Administrators of the Bank. TheSecretary of State objected on the basis that the report had been preparedfor the dominant purpose of deciding whether to bring the disqualificationproceedings. Sir Richard Scott VC ruled that the privilege did not apply asthe report was statutory in nature. The learned judge distinguished this fromthe situation in which a person may prepare a document for one of severalpurposes, one of which may be dominant. In the case of a report requiredby statute, the court opined, there is a single statutory purpose which is tomake information available to the Secretary of State. The intentions of the

Cited in note 1.In Baker, the court decided that litigation privilege did not apply because the documentwas a statutory report. This point is considered in the following paragraph.

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maker of the document (the Administrators of the Bank) are irrelevant forthis purpose.43 The judge stated that any claim to privilege would have hadto rest on public interest considerations which did not apply because no suchclaim had been made by the Secretary of State.44

16 Whatever the merits of the actual decision in Baker, there is themore pressing concern of Sir Richard Scott VC’s controversial view thatlitigation privilege no longer stands on its own but is intimately linked tolawyer and client privilege. According to the learned judge’s view, it is notsufficient to show that the communication (or document transmitted) betweenthe advocate or client and third party is made for the dominant purpose oflitigation. The party claiming the litigation privilege, he states, must additionallyestablish that the communication or document should not be disclosedbecause of the “light [it] might cast on the client’s instructions to the solicitoror the solicitor’s advice to the client regarding the conduct of the case oron the client’s prospects”.45 The case did not go to the Court of Appealbecause the Secretary of State decided to deliver the report to the otherparty prior to delivery of the judgment.

17 The point has already been made that Sir Richard Scott VC’s viewdoes not represent the current position in Singapore (which is the dominantpurpose test established in Brink’s Inc), despite the acceptance of thatview by the Singapore High Court in The Patraikos No 2. Indeed,Sir Richard Scott VC acknowledged that he was bound by the previousrulings of the Court of Appeal to the effect that litigation privilege operateson the basis of the sole or dominant purpose test regardless of whetherthe communication between the lawyer or client and third party revealsany privileged communications between the lawyer and client.46 However,the learned judge thought that the Court of Appeal, by ignoring the issue ofwhether the third party communication revealed the nature of lawyerand client communications, had failed to identify an overriding public

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Ibid, at 372. It is difficult to understand this view. Surely, the purpose of making theinformation available that is material to the issue of whether litigation privilege shouldapply. See main text at, and, note 49.Ibid, at 374. The learned judge indicated that a claim to public interest privilege wouldhave failed. (Ibid.) Note that if the case had arisen in Singapore, it may have beenpossible for any government official concerned to argue for protection against disclosurepursuant to s 126 of the Evidence Act (communications to public officers in officialconfidence 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 PeatProperties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027. Both cases areconsidered in Baker at 369–371.

14 SAcLJ 203New Twists in Legal Professional Privilege

interest.47 The learned judge distinguished the rulings of the Court ofAppeal on the premise that they did not involve a statutory report, aconclusion which is also controversial.48

18 By not recognising the dominant purpose test as a separate anddistinct ground for litigation privilege, Sir Richard Scott VC was, in effect,declaring that the privilege had no independent existence and operated asan adjunct of lawyer and client privilege. This view that litigation privilegeexists only to serve the policy of lawyer and client privilege does not takeinto account the establishment of two separate privileges as early as the19th century.49 Reference has already been made to Bray’s clear distinctionbetween the two privileges.50 Even in 1968, the UK Law ReformCommittee,51 in their 16th Report, recognised lawyer and client privilegeand litigation privilege as being governed by separate principles.52 TheCommittee strongly supported the right of a party to withhold documentswhich came into existence wholly or mainly for the purpose of preparing hiscase in pending or contemplated litigation.53 Indeed, it stated that anunrepresented litigant:

“... would appear to be entitled to privilege for comuunicationsbetween himself and third parties, if made for the purpose of obtainingfactual information for the preparation of his case in pending orcontemplated litigation.”54

19 The absence of legal representation in these circumstances wouldcertainly support the view that litigation privilege stands on its own and apartfrom the conditions applicable to lawyer and client privilege. A similar

Ie, a public interest which would override the interest of the administration of justice inensuring 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 theearly cases should not apply to statutory reports which do not attract public interest orstate 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 ofBritish Columbia (1876) 2 Ch D 644, at 656 (James LJ), 658–659 (Mellish LJ); Kyshev Holt [1888] WN 128 (Smith J). Cf Jones v Great Central Railway [1910] AC 4; Youngv Holloway (1887) 12 PD 167 and Cave J’s view in Kyshe v Holt [1888] WN 128. Fora recent affirmation of the distinction between the privileges in Canada, see SamsonIndian 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 textafter 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 16thReport. (See paras 17 and 30.)Ibid, at para 17.Ibid, at para 17.

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observation was made by Bingham LJ in Ventouris v Mountain55 in whichhe stated that an unrepresented litigant could avail himself of litigationprivilege. In addition, in Waugh v British Railways Board,56 the LawReform Committee’s view was endorsed by judges in both the Court ofAppeal and House of Lords.57 The Court of Appeal’s decisions in In ReHighgrade Traders Ltd58 and Guiness Peat Properties Ltd v FitzroyRobinson Partnership59 clearly establish the dominant purpose method asthe sole test. In those cases, litigation privilege was upheld even though thethird party communications would not have revealed the communicationsbetween lawyer and client.60

20 The real question in issue is whether a communication made betweenthe advocate or client and third party for the dominant purpose of litigationjustifies non-disclosure. In Sir Richard Scott VC’s view, it does notbecause of the absence of a public interest to override the public interestin full disclosure: “If documents for which privilege was sought did notrelate in some fashion to communications between client and legal adviser,there was no element of public interest that could override the ordinaryrights of discovery...”.61 Therefore, the learned judge did not accept thatlitigation privilege could be justified apart from the need to preserve theinviolability of lawyer and client communications.

21 Apart from his unwillingness to accept the correctness of bindingCourt of Appeal decisions, Sir Richard Scott VC cited some judicialpronouncements in doubtful support of his view.62 Some of the observationsare solely concerned with the privilege which attaches to communicationsbetween the lawyer and his client and, therefore, no reference is made tolitigation privilege. Other observations merely, and quite correctly, rationaliselawyer and client and litigation privilege as related (but separate) doctrines.63

However, none of the cases cited by the learned judge expressly declaresthat litigation privilege can only operate where disclosure would compromise

[1991] 1 WLR 607, at 611.[1980] AC 521.Ie, by Lord Edmund-Davies in the House of Lords and Lord Denning MR in the Courtof Appeal.[1984] BCLC 151.[1987] 1 WLR 1027.As was acknowledged by Sir Richard Scott VC in Baker. These were the cases by whichthe learned judge reluctantly regarded himself as bound. (Baker, at 371.) Also seeBums 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 dominantpurpose of litigation may reveal the advice that an advocate may provide his client (forexample, strategy or approach to the case) or even communications between them.

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the confidentiality of the lawyer and client relationship.64 Kindred doctrinesdo not necessarily share common principles and cannot be assumed to beinterdependent. Indeed, most of the cases cited by the learned judgeactually support the independence of litigation privilege based on the “dominantpurpose” test.65

22 It is clear that these difficulties have arisen from a failure tounderstand the subtle distinction between two branches of legal professionalprivilege. Lawyer and client privilege is intended to encourage the client tobe wholly forthcoming in the information he gives to his lawyer so that hecan receive effective legal representation. Litigation privilege encouragesthe provision of relevant information by third parties (at the instance of thelawyer or the client), and is concerned with the protection of the lawyer’sand client’s strategy, approach to, and preparation of, the case. As put byBray, it seeks to protect the “mind” of the lawyer.66 These privileges arelinked because the lawyer’s advice to his client in respect of his views,strategy and approach is protected by lawyer and client privilege. Thisoverlap should not be interpreted as requiring common principles becausethe ultimate objectives of the privileges are quite different. Litigationprivilege becomes redundant if it operates only for the purpose of protectingcommunications between lawyer and client. The public interest in protectingthe lawyer’s “mind” would also be compromised if ignored by limitinglitigation 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. InVisx v Nidek,67 Aldous LJ cited extracts from the judgment of Sir RichardScott VC in Baker and concluded that the privilege would not attach to adocument prepared for litigation unless it would be in the public interest to

Although there are some early observations which could be regarded as denyingthe existence of litigation privilege. See Jones v Great Central Railway [1910] AC 4, at5–6 (where Lord Loreburn LC rejected any privilege beyond that which applies tolawyer and client communications). An alternative interpretation is that the documentwas not sufficiently connected to the litigation. Jones was disregarded in the moremodern authorities such as Guiness Peat and Highgrade. In Kyshe v Holt [1888] WN128, Cave J did not think that an unrepresented person could avail himself of a privilegein 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 ofBritish Columbia (1876) 2 Ch D 644, at 656 (James LJ), 658–659 (Mellish LJ); Kyshev 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 ReHighgrade 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 thatcertain depositions (the documents in respect of which litigation privilegewas claimed) had already been seen by both parties and therefore therewas no public interest to be served in upholding the privilege. AlthoughAldous LJ did not go as far as to say that litigation privilege should onlyoperate to avoid revealing communications between a client and his lawyer(the position taken in by Sir Richard Scott VC in Baker), the learned judgedid indicate that a public interest in non-disclosure had to be shown.68 It isnot clear from the judgment whether the traditional rationale of litigationprivilege would be a sufficient public interest for this purpose.

24 The case of S County Council v B,69 which concerned careproceedings in respect of an allegedly abused child, is more to the point.The issue was whether a father, who was being separately prosecutedfor causing grievous bodily harm to the child, could be required to producein the care proceedings communications between him and experts madefor the purpose of his defence in the criminal proceedings. The father’sclaim to litigation privilege was upheld. Charles J did not agree withSir Richard Scott VC’s view in Baker that litigation privilege shouldonly operate to avoid revealing communications between a client and hislawyer. Charles J’s conclusions may be summarised as follows:

The law regarding litigation privilege is as set out by the Court ofAppeal in In Re Highgrade Traders Ltd, Guiness Peat PropertiesLtd and by the House of Lords in Waugh. The dominant purposetest governs.70

Litigation privilege does not merely uphold the inviolability ofcommunications between a lawyer and his client. In support of hisview, Charles J referred to Bingham LJ’s point in Ventouris vMountain71 that litigation privilege may be claimed by a litigant inperson72 and his conclusion that the privilege is not confined tocommunications between a client and his solicitor relating to adviceor instructions.73 Charles J regarded Sir Richard Scott VC’s viewas “too narrow”.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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Ibid, at 62.Ibid, at 62.Charles J added: “This point has been recognised in relation to claims for public interestimmunity and it seems to me that it is important to remember it when consideringwhether (i) litigation privilege arises in respect of proceedings under the Children Act1989 which are essentially non-adversarial, and (ii) the different question whether legalprofessional privilege, including litigation privilege, which has arisen outside suchproceedings can be claimed in them; and ... it is not for me in this case to re-examine thevalidity of the arguments relating to public interest and candour (see for example LordWilberforce in Waugh v British Railways Board [1980] AC 521, 531–532) that supportlitigation 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 willbe considered in the main text from note 170.

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Lawyer and client privilege and litigation privilege are integral partsof a single privilege.75

The public interest considerations underlying lawyer and client privilegeand litigation privilege are “the same or essentially the same” becausethey have the same root in legal professional privilege. Litigationprivilege is not a lesser privilege than lawyer and client privilege.76

Charles J also stated: “... in considering whether material is coveredby legal professional privilege and in particular litigation privilege ina new area or one not directly covered by earlier authority, it isimportant to ask ... whether the public interest and underlyingjustification for legal professional privilege applies and not whetherthe material can fairly be described as being in the same class asmaterial to which legal professional privilege has been held to applybefore 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 considerationsmay require a different conclusion. This brings us to the issue of whetherlitigation 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 moredeveloped jurisprudence concerning the absoluteness of lawyer and clientprivilege.79

•

•

•

Lawyer and client privilege

COMMON LAW DEVELOPMENTS IN RELATION TO THE ABSOLUTENESS OF LAWYER AND

CLIENT PRIVILEGE

26 Until recently, little had been said about whether litigation privilegeis absolute or subject to balancing considerations. In England, the Houseof Lords changed the law in 1995 in respect of the absolute nature of lawyerand client privilege. The case in question, R v Derby Magistrates Court,80

established that lawyer and client privilege is absolute (subject to specificexceptions), and not dependent on other public interest considerations suchas the availability of essential evidence to the defence in criminal proceedings.The balancing approach of weighing the interest of the client in maintaininghis privilege (so that the document is not disclosed) and the interest of theperson who seeks to rely on the document (so that he has access to relevantevidence in the interest of the administration of justice) had been establishedby earlier decisions. In R v Barton,81 Caulfield J ruled that a legal executiveof a law firm who had been accused of fraud, theft and falsification ofaccounts, was entitled to subpoena a partner of the firm to require the latterto produce privileged documents which were necessary to the defence.The learned judge said: “I cannot conceive that our law would permit asolicitor or other person to screen from a jury information which if disclosedto the jury, would perhaps enable a man either to establish his innocence orto resist an allegation made by the Crown”.82

27 Caulfield J arrived at his decision on the basis of natural justice forthe accused. This qualification to the privilege was further developed inR v Ataou.83 The Court of Appeal ruled that a prosecution witness (anaccomplice of the accused) could be cross-examined for the purpose ofadducing a statement previously made by the accomplice to his lawyerwhich had the effect of exonerating the accused. French J, who gave thejudgment of the court, stated that the issue had to be determined bybalancing the two competing public interests in protecting lawyer and clientcommunications and the disclosure of relevant evidence:84

“When a communication was originally privileged and in criminalproceedings privilege is claimed against the defendant by the clientconcerned or his solicitor, it should be for the defendant to show onthe balance of probabilities that the claim cannot be sustained. That

[1996] AC 487.[1973] 1 WLR 115Ibid, 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 theclient could any longer reasonably be regarded as having arecognisable interest in asserting the privilege. The judge must thenbalance whether the legitimate interest of the defendant in seekingto breach the privilege outweighs that of the client in seeking tomaintain it.”

28 In Ataou, the court found that although the person claiming theprivilege continued to have an interest in its preservation,85 that interest wasnot sufficient to override the interest of the accused in having access to theprivileged 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 ofauthorities and concluded:87

“The principle which runs through all these cases, and the manyother cases which were cited, is that a man must be able to consulthis lawyer in confidence, since otherwise he might hold back halfthe truth. The client must be sure that what he tells his lawyerin confidence will never be revealed without his consent. Legalprofessional privilege is thus much more than an ordinary rule ofevidence, limited in its application to the facts of a particular case.It is a fundamental condition on which the administration of justiceas 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 documentprotected by privilege continues to be protected so long as theprivilege is not waived by the client: once privileged, always privileged.It also goes against the view that the privilege is the same whetherthe documents are sought for the purpose of civil or criminal

The court stated that although the disclosure of his statement might have an adverseeffect on the sentence that would be imposed on the accomplice, this could be addressedby arranging for a different judge to sentence him. As to the possibility that thestatement might expose him to prosecution for perjury, the court regarded this as “tootheoretical to carry much weight”. (Ibid, at 807.)In General Mediterranean Holdings SA v Patel & Anor [1999] 3 All ER 672, the EnglishHigh Court re-emphasised the paramountcy of the principle of legal professional privilegeby deciding that a rule of the Civil Procedure Rules 1999 (pt 48.7(3)), which purportedto empower a court to order the disclosure of privileged documents for the purpose ofan appliction for a wasted costs order, was ultra vires. The absolutist doctrine alsoreceived 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.

85

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proceedings, and whether by the prosecution or defence, and that therefusal of the client to waive his privilege, for whatever reason, orfor no reason, cannot be questioned or investigated by the court.”

31 At the root of their Lordships’ determination that the privilege isabsolute was the concern that any qualification to the privilege wouldundermine the fundamental principle that a client must not feel constrainedin any way in his communications with his lawyer. Lord Taylor stated:

“... once any exception to the general rule is allowed, the client’sconfidence is necessarily lost. The solicitor, instead of being able totell his client that anything which the client might say would never inany circumstances be revealed without his consent, would have toqualify his assurance. He would have to tell the client that hisconfidence might be broken if in some future case the court were tohold that he no longer had ‘any recognisable interst’ in asserting hisprivilege. One can see at once that the purpose of the privilegewould thereby be undermined.”89

32 Lord Taylor added that the benefit of this principle extends beyondthe interest of the person claiming it to “all those hereafter who mightotherwise be deterred from telling the whole truth to their solicitors”.90

Lord Lloyd pointed out that the relationship of confidence between lawyerand client would be undermined or even destroyed if the client is told thathis privilege may be overridden at some future time.91 Lord Lloyd concededthat the absoluteness of the privilege might cause hardship where anaccused person needs to rely on the communication to establish his innocence,“but in the overall interests of the administration of justice it is better thatthe principle should be preserved intact”.92 Apart from Lord Nicholls, alltheir Lordships were willing to uphold the absoluteness of the privilege evenif the client no longer has a reason for claiming that privilege. It iscommon for a privilege to be “spent” once proceedings are concluded orthe matter in respect of which the client consulted his lawyer is whollyresolved. This is because the client has no further interest to protect – thecase is over. As the matter did not arise in Derby,93 Lord Nicholls decidedto reserve his final view on the issue.94

Ibid, at 508.Ibid.Ibid, at 509.Ibid, at 510.In Derby, the person claiming the privilege continued to have some interest in preservingconfidentiality 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 thestatus of the privilege be if the person seeking to uphold it no longer has an interest indoing so ?” (main text at para 46).

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MATTERS ARISING FROM HOUSE OF LORDS’ RULING IN DERBY MAGISTRATES AND

SUBSEQUENT CASES.

(i) Was lawyer and client privilege ever an absolute doctrine?

33 Lord Taylor justified the conclusion of the House of Lords that theprivilege is absolute on the basis of authorities dating back to the 16thcentury.95 Yet the cases cited are concerned with the general principle thatlawyer and client communications must be protected. The circumstancesof these decisions did not require the courts to address the exceptions orqualifications to the principle which had been well established even in the19th century.96 Put simply, lawyer and client privilege has never beenstrictly absolute. The privilege will not operate where the communicationis in furtherance of an illegal purpose;97 or the client consents to itsdisclosure98 or waives his right to claim privilege;99 or where a copy of thedocument is accidentally disclosed and inspected;100 or obtained by a thirdparty;101 or reveals a crime or fraud committed since the appointment of thelawyer;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 casessuch as R v Cox and Railton (1884) 14 QBD 153 and Brown v Foster (1857) 1 H & N736. Also see O’Rourke v Darbishire [1920] AC 581. The doctrine of express andimplied waiver of privilege had been established at the time of the Act as well. See s 130and s 131 of the Act.)See s 128(1)(a)of the Act.Ibid, s 128(1). (Express consent is required: Yeo Ah Tee v Lee Chuan Meow [1962] MLJ413.)See ss 130 and 131 of the Act. For illustrations of waiver at common law, see GreatAtlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485, at 494 (unintentionaldisclosure 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 amanner 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 actionwhich involves showing that he had no knowledge of a particular matter, he may beregarded as having impliedly waived his privilege over a document which shows that hedid have such knowledge).See O 24, r 19(1) (Rules of Court) which provides: ‘Where a party inadvertently allowsa privileged document to be inspected, the party who inspected it may use it or itscontents only if the leave of the Court to do so is first obtained.’ Also see Guiness PeatProperties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027.Calcraft v Guest [1898] 1 QB 759.See s 128(1)(b) of the Act.

9596

9798

99

100

101102


requires disclosure.103 Although many of these qualifications were establishedin the 19th century, recent authorities have shown that they are not fixedor closed104 thereby indicating a less than absolutist doctrine. Moreover, itis arguable that if lawyer and client privilege is absolute or reflects the“predominant public interest”, as Lord Lloyd puts it,105 it would have beenbetter protected by a rule of exclusion106 rather than a right which couldbe lost through a variety of means.107

34 The reality of the law has always been that the client can never beassured that his privileged communication can never be disclosed. If oneaccepts this, then the client’s realisation that there is a remote possibilitythat his privilege may in the future have to give way108 to the greaterconcern109 of an accused person who may be improperly convicted, doesnot significantly alter the scope and underlying philosophy of the generalrule, which must make way for the public interest in avoiding the convictionof an innocent man. It would certainly be an abuse of administration ofjustice if the person claiming the privilege could withhold evidence (in whichhe has little or no interest) knowing full well that the consequence may bean improper conviction.

(ii) Is there a basis for applying the balancing test?

35 The conclusion of the House of Lords that the approaches in Bartonand Ataou are inconsistent with pre-existing authority presumes that thecourts in Barton and Ataou had acted contrary to precedent. However,the pre-existing cases do not rule out the application of the balancingapproach. As Caulfield J said in Barton, there was no precedent to

Normally this would have to be express but there are situations where the court mayrule that a statutory provision abrogates the privilege in a particular situation. SeeHalsbury’s Laws of Singapore: Evidence (vol 10) (2000) para 120.425.For example, a recent development is the subjection of the privilege to the interest of achild 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, at399.) Another example is the use of privileged communications in disputes between theclient and his lawyer. (See Lillicrap v Nalder & Son [1993] 1 All ER 724; Kershaw vWhelan, Times, 20 December 1995.) Also see s 130 of the Evidence Act and Art 24 ofthe Legal Profession (Professional Conduct) Rules, 2000. In the Oxfordshire case,Steyn LJ referred to a variety of exceptions and qualifications apart from waiver andstatutory provisions.[1996] AC 487, at 509.As suggested by Colin Tapper, “Prosecution and privilege” (1997) 1 InternationalJournal of Evidence and Proof 4, at 12–13.See note 99.Depending on the extent of the interest.Which, according to Ataou, the accused must establish on a balance of probabilities.

103

104

105106

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counteract the fundamental principle of natural justice that a privilegedcommunication must be disclosed if it would assist an accused person in hisdefence. Indeed, the Court of Appeal in Ataou recognised Barton as thefirst authority on the issue. Cases in other jurisdictions have also supportedthe balancing test.110

36 The balancing process has a crucial role where an accused personneeds 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 privilegegranted to informants:

“The public interest that no innocent man should be convicted of acrime is so powerful that it outweighs the general public interestthat sources of police information should not be divulged: so that,exceptionally, such evidence must be forthcoming when required toestablish 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 inorder to show the prisoner’s innocence, then one public policy is inconflict with another public policy, and that which says that aninnocent man is not to be condemned when his innocence can beproved is the policy that must prevail.”114

See R v Craig [1975] 1 NZLR 10; R v Dunbar & Logan [1973] 1 WLR 115, at 118. Theoutcome was different in Carter v The Managing Partner, Northmore Hale Davy &Leake & Ors [1995] 183 CLR 121, which will be considered in the course of this article.The following discussion of public interest privilege focuses on the common law whichrecognises a broad balancing principle. In the case of the Evidence Act, specific publicinterest privileges are recognised. It has yet to be judicially determined whether a publicinterest beyond the categories in the Act would be recognised. For a consideration ofthe issues in this area, see Chin TY, “Documents on affairs of state as evidence” [1979]21 Mal LR 24. Also see note 117.[1978J AC 171, at 232.See Marks v Beyfus (1890) 25 QBD 494, at 498.Also see Neilson v Laugherne [1981] QB 736, at 753, where Oliver LJ said: “If publicpolicy prevents disclosure, it prevents it, in my judgment, in all circumstances except toestablish 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 beclaimed by informants). In Singapore, state or government privilege is primarily governedby 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 ornot 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 thebalancing test through a purposive approach which is a modern trend in the Law ofEvidence. See main text at note 163. This has happened in India in respect ofcorresponding provisions. (See, for example, State of Uttar Pradesh v Raj Narain AIR1975 SC 865.)

110

111

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38 Inexplicably, the House of Lords rejected the argument that thebalancing process in the context of public interest privilege should have anybearing on client and lawyer privilege:

“... it by no means follows that because a balancing exercise iscalled for in one class of case, it may also be allowed in another.Legal professional privilege and public interest immunity are asdifferent in their origin as they are in their scope.”115

39 This elevation of client and lawyer privilege to a status above allother rules of evidence116 is extreme and inconsistent with the law’spriorities. There is no question that the protection of client and lawyercommunications in the interest of effective legal representation is one of thegreat concerns of the administration of justice. However, to regard it as asupreme rule117 which overrides all other priorities of the administration ofjustice in any circumstances whatever is to fail to appreciate the flexibilityneeded to take into account exceptional circumstances which may arise.Moreover, if the balancing process is integral to the determination ofwhether public interest privilege should give way to the need of an accusedperson with all the concomitant dangers that the disclosure involves,118

there is no reason why lawyer and client privilege should be accorded amore inviolate status. Unfortunately, Lord Taylor did not justify his viewthat the balancing process could apply to public interest privilege but notlawyer and client privilege.

40 It has been argued that lawyer and client privilege is not absolutebecause it is subject to various established exceptions and qualifications.119

Accordingly, a further qualification which enables the accused to rely onrelevant evidence in his favour would not contradict the scheme of the law.Such an approach would recognise that the public interest underlyinglawyer and client privilege, vital though it is, is merely one of severalcompeting public interests none of which is supreme and overriding in every

Ibid, at 508.Lord Taylor states ([1996] AC 487, at 507): “Legal professional privilege is thus muchmore than an ordinary rule of evidence, limited in its application to the facts of aparticular case. It is a fundamental condition on which the administration of justice asa whole rests.”Lord Lloyd agreed with Lord Taylor’s view (see extract immediately above) and addedthat lawyer and client privilege is recognised as the ‘predominant public interest’. (Ibid,at 509.) Lord Nicholls seemed to be more concerned with the practical difficultieswhich the test might cause. (Ibid, 511–512.)Ie, the danger to the public resulting from the disclosure of documents that wouldnormally be prevented in the interest of, for example, state security or some otherpublic concern.See main text from notes 96-104. Also see note 4.

115116

117

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instance. Lawyer and client privilege is itself founded on competing publicinterests: the encouragement of full and frank communications betweenclient and lawyer so that proper legal advice might be obtained and thedisclosure of all relevant evidence in the interest of proper adjudication.However, as shown by the exceptions and qualifications to privilege, it isonly a general rule that lawyer and client privilege overrides the publicinterest in full disclosure.

41 The balancing test is the fairest and most flexible method of determiningthe competing interests of privilege and disclosure in respect of a documentwhich assists in the defence of the accused. Such a principle also recognisesthat the accused’s opportunity to rely on relevant evidence in support of hiscase is at least as important as client and lawyer privilege.120

(iii) Can the balancing test resolve the perceived difficulties ofLord Nicholls in Derby and of Brennan J in Carter v TheManaging Partner, Northmore Hale Davy & Leake &Ors?121

42 Not all their Lordships in Derby came to their decisions on the basisof the paramountcy of lawyer and client privilege. Lord Nicholls preferredto rely on what he considered to be the practical difficulties involved in thebalancing approach:

“There are real difficulties here. In exercising this discretion thecourt would be faced with an essentially impossible task. One man’smeat is another man’s poison. How does one equate exposure to acomparatively minor civil claim or criminal charge against prejudicinga defence to a serious criminal charge? How does one balance aclient’s risk of loss of reputation, or exposure to public opprobrium,against prejudicing another person’s possible defence to a murdercharge? But the difficulties go much further. Could disclosure alsobe sought by the prosecution, on the ground that there is a publicinterest in the guilty being convicted? If not, why not? If so, whatabout disclosure in support of serious claims in civil proceedings, say,where a defendant is alleged to have defrauded hundreds of peopleof their pensions or life savings? Or in aid of family proceedings,where the shape of the whole of a child’s future may be underconsideration? There is no evident stopping place short of thebalancing exercise being potentially available in support of all parties

See main text after note 109 (“(ii) Is there a basis for applying the balancing test ?”)[1995] 183 CLR 121. See main text at note 131.

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in all forms of court proceedings. This highlights the impossibility ofthe exercise. What is the measure by which judges are to ascribean appropriate weight, on each side of the scale, to the diversemultitude of different claims, civil and criminal, and other interests ofthe client on the one hand and the person seeking disclosure on theother hand?”122

43 The underlying assumption of this statement that the interest of theclient in preserving his privilege should not be subject to a competing interestis not representative of the current state of the law. The courts have, invarious situations, ruled that lawyer and client privilege must give way to acompeting interest.123 The judicial task in this process is difficult andchallenging but not impossible. Useful criteria may be judicially formulatedto guide the courts. To illustrate, a court might respond to the problemsraised by Lord Nicholls124 by concluding125 that a distinction must be madebetween the need of an accused person and the prosecution to rely onprivileged information. A prosecution is normally brought on the basis ofsufficient evidence independently gathered by the police or other enforcementagency on the basis of extensive statutory powers.126 The prosecution hasthe resources of the government while the accused’s access to relevantmaterial is often limited.127 Surely, the danger of a wrongful convictionmust give rise to a greater concern than denying the prosecution accessevidence 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 evidenceto that of a litigant in a civil case. Here again, a distinction must be madebetween a private dispute between parties and the public context of acriminal trial which involves prosecution by a powerful organ of State andthe 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 byLord Nicholls.In Singapore, the Criminal Procedure Code (Cap 68) and other statutes provide for thepowers, inter alia, of investigation and securing evidence.Primarily because there is still no systematic discovery process in criminal cases inSingapore. However, the prosecution is under a duty to disclose relevant evidencewhich is not subject to legal prohibition. See Teh Lee Tong v R [1956] MLJ 194; TayChoo Wah v PP [1975–1977] SLR 470, [1976] 2 MLJ 95; Khoon Chye Hin v PP [1961]MLJ 105.Furthermore, there may be some basis for the view that a client would be less likely toconfide in his lawyer if he knows that there is a risk that the communication may oneday be used by the prosecution against another person.

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126

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public opprobrium). In short, the party to a civil case would generally bein a less weighty position to demand that a person should give up hisprivilege.129 Lord Nicholl’s question as to whether the privilege should giveway to the welfare of a child in family proceedings has already beenanswered positively.130

45 In Carter v The Managing Partner, Northmore Hale Davy &Leake & Ors,131 Brennan J was concerned that if the privilege gives wayto the needs of an accused, this may lead to the co-accused in a trialrequiring disclosure of their respective communications with their lawyerswith a view to inculpating each other. This “absurd anomaly”, as Brennan Jput it,132 is easily resolved by the normal principle of discovery that noparty is entitled to “fish” for evidence that might assist his case.133 Thethreshold condition laid down by the Court of Appeal in Ataou should notbe forgotten: the accused person must, inter alia, establish on a balance ofprobabilities that such a communication exists and that it would assist inhis defence and that his need is more weighty than the need to preserve theprivilege. It follows from this that even a person who is the sole accusedin a criminal trial should not assume that he will succeed. If, for example,the communication is less significant to his defence than to the preservationof the privilege, the test for overriding the privilege in Ataou would not bemet.

(iv) What should the status of the privilege be if the person seekingto 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 needfor balancing the interests. It would be ludicrous for the law to allow aperson, who no longer has any interest in maintaining his privilege, to sealthe fate (in the form of the death penalty, caning or imprisonment) of an

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 (seeextract in the main text ending at note 122).See Oxfordshire County Council v M [1994] Fam 151, which was approved by theHouse of Lords in Re L (A Minor) [1996] 2 WLR 395, at 399.[1995] 183 CLR 121.Ibid, at 131.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 vBarton, 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 whois required to disclose the privileged communication”.

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innocent accused at whim. Even Lord Nicholls in Derby indicated that hewould not have been prepared to allow the privilege to override the interestof an accused person in such circumstances:134

“I would not expect the law, based explicitly on considerations of thepublic interest, to protect the right of a client when he has no interestin asserting the right and the enforcement of the right would beseriously prejudicial to another in defending a criminal charge or insome other way.”135

47 In R v Dunbar and Logan,136 Martin JA, in delivering the judgmentof the Ontario Court of Appeal, stated:

“No rule of policy requires the continued existence of the privilegein criminal cases when the person claiming the privilege no longerhas any interest to protect, and when maintaining the privilege mightscreen 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 andclient communications is R v McClure,138 a decision of the CanadianSupreme Court. The accused was charged with committing sexual offenceson several complainants. He sought production of documents from thecomplainants including a file which included communications between acomplainant and his lawyer in relation to a civil suit by the complainantagainst the accused concerning the same matter. The accused’s objectivewas to find documents which might show that the complainant had a motiveto exaggerate or even fabricate evidence. The trial court ordered the fileto be disclosed.

The issue did not arise in the case because the person claiming the privilege did have aninterest in preserving his reputation.[1996] AC 487, at 513. Also see the dissenting judgments of Toohey and Gaudron JJ inCarter. The majority of the House of Lords in Derby (Lord Taylor and Lord Lloyd) andthe 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 notimpose capital or corporal punishment) on the basis that even the slightest erosion ofthe privilege would compromise candour in the lawyer and client relationship.R v Dunbar & Logan (1982) 138 DLR (3d) 221, at 252.The court cited the following extract from Cross on Evidence, 5th Ed, p 286: “A timemay come when the party denying the continued existence of the privilege can provethat the party relying on it no longer has any interest to protect, as where the solicitorfor the unsuccessful plaintiff in a civil action takes a statement from a witness who issubsequently prosecuted for perjury, and the prosecution wish to ask the solicitor whatthe witness said to him.” Also see R v Craig 1 NZLR 597, at 599. Note that theposition 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”.[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 theconfidentiality of lawyer and client communications,139 it did not adopt theabsolutist approach of the House of Lords in Derby. The Supreme Courtaccepted that lawyer and client privilege had to give way if the accused’sinnocence was at stake.140

50 The court formulated a two-stage test for the determination of theissue. Prior to the application of this test, however, the accused had to“establish that the information he is seeking ... is not available from anyother source and he is otherwise unable to raise a reasonable doubt as tohis guilt in any other way”.141 If he achieves this task, the court proceedswith the test. The first stage involves a review by the trial judge of thedocument. The trial judge must ask himself:

“Is there some evidentiary basis for the claim that a lawyer-clientcommunication exists that could raise a reasonable doubt about theguilt of the accused?”

51 It is for the accused to show that the privileged communication couldraise a reasonable doubt “in the light of what [he] knows”. Mere speculationthat there is a such a document would not be sufficient to satisfy this test.The court considers the communication in conjunction with other availableevidence to determine its significance (ie, whether it could raise a reasonabledoubt).142 The court added that “when the accused is either challengingcredibility or raising collateral matters, it will be difficult to meet thestandards required of stage one”.

52 If the accused can show that the communication could raise areasonable doubt in the context of stage one, the judge then proceeds tostage two with the following question:

“Is there something in the solicitor-client communication that is likelyto raise a reasonable doubt about the accused’s guilt?”

“Unless individuals can be certain that their communications with their solicitorswill remain entirely confidential, their ability to speak freely will be undermined”. (Ibid,at 463.)Ibid.Ibid, at 464.The court stated that “It is the totality of the evidence which counts”. (Ibid, at 466.)

139

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Ibid, at 466–467.Such as Barton (see main text at note 81), Craig (note 110) and Dunbar (main text atnote 136).See main text from note 83.Ie, the criteria in stage two of the test.

143144

145146

53 The Supreme Court explained:143

“In most cases, this means that, unless the solicitor-clientcommunication goes directly to one of the elements of the offence,it will not be sufficient to meet this requirement. Simply providingevidence that advances ancillary attacks on the Crown’s case (egby impugning the credibility of a Crown witness, or by providingevidence that suggests that some Crown evidence was obtainedunconstitutionally) will very seldom be sufficient to meet thisrequirement.

The trial judge does not have to conclude that the informationdefinitely will raise a reasonable doubt. If this were the case, the trialwould effectively be over as soon as the trial judge ordered thesolicitor-client file to be produced. There would be nothing left todecide. Instead, the information must likely raise a reasonable doubtas to the accused’s guilt.”

54 According to the court, if the judge, in reviewing the material, himselfcomes across a communication which he believes is likely to raise areasonable doubt, that communication can be disclosed in favour of theaccused even in the absence of argument (at stage one) by the accused.

(vi) Is the “innocence at stake” exception to be preferred to thebalancing test?

55 The “innocence at stake” test is not entirely new. It has been seenin Ataou and other casesl44 that the privilege may have to give way whenthe communication is necessary to the defence of the accused.145 What theSupreme Court did in McClure was (a) to formulate this principle as anexception to the general rule rather than a balancing process to be appliedon a case by case basis and (b) to provide a more specific procedure (inthe form of a two-stage test) for the determination of the issue. The interestor lack of interest of the person maintaining the privilege is irrelevant. Theprimary question is whether the accused can show at stage two that thecommunication “is likely to raise a reasonable doubt”.146


[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 aboutthe relevancy of the communication would not be sufficient. (See main text at note 145.)See main text after note 143.

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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 opencandid and confidential discussion between lawyers and their clients will berare and reluctantly imposed”. It pointed out that the two-stage test wouldnot be easy to satisfy: “The difficulties described in successfully overcomingsolicitor-client privilege illustrate the importance and solemnity attached toit.”147 There is no question it would be dangerous to erode as important aprinciple as legal professional privilege. However, the approach of theSupreme Court raises some important concerns in relation to the safety ofconvictions.

57 In the first place, the pre-condition to the two-stage test – that thecommunication must be the only source of the information he seeks148 –may penalise the accused in the context of the weight of the evidence whichhe needs to adduce in order to raise a reasonable doubt. The accused islikely to put up a stronger case if the information in the communication issupported by another independent and reliable source(s) of the sameinformation.149 The additional source of evidence may, indeed, be crucialto his case.

58 Secondly, the condition in stage two of the McClure test that theaccused 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. Forexample, in Ataou, the court stated that the accused would be entitled torely on a privileged communication if he could establish that his interestoutweighed the interest of the client seeking to maintain the privilege.Therefore, if the accused could show that the communication could supporthis defence and that the person claiming the privilege had very little or nointerest in maintaining the privilege (put another way, his claim to privilegeis less weighty than the accused’s need to rely on the communication), theAtaou test for production would be satisfied irrespective of whether theaccused could satisfy the McClure standard that the communication “islikely to raise a reasonable doubt”.150

59 Thirdly, the Supreme Court admonished that a communication usedto challenge credibility or to raise collateral matters will “very seldom besufficient to meet this requirement.”151 It is not entirely clear why thisrestriction is necessary. There may be circumstances in which a privileged


[2001] SCR 445, at 467.Ibid.

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communication may be used in cross-examination to destroy the credibilityof a prosecution’s witness whose testimony might otherwise establish thecase against the accused beyond a reasonable doubt. Surely, the privilegeshould give way in such a situation in as much as it would give way wherethe 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 inquestion is likely to raise a reasonable doubt as to the guilt of theaccused, the trial judge should consider that the communication in thesolicitor-client file cannot be marginal but must be sufficient toestablish the basis for its admission. It is the totality of the evidencethen available that the trial judge considers in determining whetherit is likely that the evidence can raise a reasonable doubt.”153

61 With respect, this statement is not entirely clear. A communicationwhich is marginal in its own context may be quite significant when viewedas part of the totality of the evidence and vice versa. It is assumed thatwhat the court meant to say was that the communication must be consideredtogether with the other evidence in the case to determine whether it (thecommunication) is likely to raise a reasonable doubt as to the accused’sguilt.

62 The Supreme Court should be commended for rejecting the absolutistview promulgated by the House of Lords in Derby. However, its preferencefor an exception to the general rule over the balancing process (as advocatedin Ataou) may make the process more arbitrary than necessary. The issueof whether the person claiming the privilege still has an interest in maintainingit can often make the difference where the communication could potentiallyassist the defence. If the person claiming the privilege has little or nointerest in maintaining it, the balance would be in favour of disclosure.However, unless the accused could establish the higher standard of showinga likelihood that the communication would raise a reasonable doubt, hewould fail under the McClure test. From the point of view of thereasonable person claiming the privilege, one would suppose that he would,in most situations, not be less candid in his communications with his lawyerif he knew that they might have to be disclosed at a time when he hasinsignificant or 770 interest in confidentiality, and that the evidence mayavoid a wrongful conviction.


63 The McClure test is also unsatisfactory because there may becircumstances in which the judge, in deciding whether or not to allowproduction of the communication, concludes that it could make the differencebetween conviction and acquittal but cannot go as far as deciding that it islikely to do so (the second stage of the test of the McClure test). In thesecircumstances, the privilege would be upheld even if the privilege-holder nolonger 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 thelead of the House of Lords in Derby Magistrates, even though a literalinterpretation of the pertinent sections of the Evidence Act (ss 128–131) isconsistent with the ruling in that case.154 These provisions do not expresslyrecognise the relinquishment of the privilege where an accused personneeds to refer to the communication for the purpose of his defence. Theonly stipulated exceptions involve circumstances in which the client consentsto disclosure155 or waives his privilege;156 or the communication is made infurtherance of an illegal purpose157 or concerns a fact observed by thelawyer in the course of his work revealing the commission of a crime afterhe took on the case.158 Nor do ss 128–131 provide a process for balancingthe interest of the person entitled to the privilege and the person who seeksdisclosure of the privileged communication.159

65 It has been argued that the soundness of the absolutist approach isvery much in doubt. It would be particularly inappropriate in the context ofthe Singapore legal system which imposes capital and corporal punishmentfor many crimes and which requires the accused in a variety of instancesto carry the burden of proof through the rebuttal of presumptions160 or the

Most likely because the circumstances in which a privileged communication might benecessary for an accused person’s defence was not contemplated at the time of the Act.Pursuant to s 128.Pursuant to s 130 or 131.Pursuant to s 128(a).Pursuant to s 128(b).In R v Chhoa Mui Sai [1937] MLJ 236, the Straits Settlement Supreme Court determinedthat cross-examination of the prosecution witness (complainant) concerningcommunications between her and her lawyer should not have been allowed. No argumentwas raised as to whether such cross-examination was necessary to the defence of theaccused. The court also determined that the communications were not relevant to theissues.See, for example, the Misuse of Drugs Act (Cap 185) which applies, inter alia,presumptions of possession, knowledge and trafficking.

154

155156157158159

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establishment of exceptions to liability on a balance of probabilities.l61 Asthe evidential rules are more burdensome for the accused in Singapore thanmany other common law countries, particular consideration should be givento the accused to ensure that he is able to adduce sufficient evidence toestablish 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 theSingapore courts, to apply a purposive construction to the provisions in theEvidence Act. Indeed, this would not be the first time that the balancingapproach is applied on a purposive basis. In Lee Kwang Peng v PP,162 theHigh Court decided to adopt the common law balancing test concerning theadmissibility of similar fact evidence in the context of s 11 (b) of theEvidence Act, a provision which was never intended by the scheme of theAct to admit such evidence and which does not actually apply a balancingmechanism.163

67 Furthermore, a distinction should be made between English andSingapore jurisprudence. Lord Taylor considered lawyer and client privilegeto be “more than a rule of evidence” and “a fundamental condition on whichthe administration of justice as a whole rests”.164 His Lordship classifiedit as “a fundamental human right” protected by the European Conventionfor the Protection of Human Rights and Fundamental Freedoms (1953).165

There does not appear to be an indication in the speeches of the House ofLords 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 supportof a defence or to refute the prosecution’s case.

68 If Lord Taylor’s characterisation of the privilege as it stands inEngland is correct, it is certainly not representative of the law in Singapore.The various privileges recognised by the Evidence Act are formulated asordinary rules of evidence undistinguished from the other provisions. TheEuropean Convention for the Protection of Human Rights and FundamentalFreedoms does not operate in Singapore and the Singapore Constitutiondoes not acknowledge lawyer and client privilege as a fundamental right.166

See, for example, s 107 of the Act; Jayasena v R [1970] AC 618.[1997] 3 SLR 278.Other examples of the application of the purposive approach to provisions of theEvidence Act include: PP v Knight Glenn Jeyasingam [1999] 2 SLR 499; Tan Meng Jeev PP [1996] 2 SLR 422; Poh Kay Keong v PP [1996] 1 SLR 209; PP v Heah Lian Khin[2000] 3 SLR 609.The extract of this part of the judgment is set out in the main text after note 87.Cmd. 8969.Although access to, and representation by, a lawyer are constitutionally entrenchedrights pursuant to Art 9(3) of the Constitution.

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However, the Constitution is concerned with a fair trial and equalitybetween the parties.167 The underlying assumption of the direction that “Noperson shall be deprived of his life or personal liberty save in accordancewith law” is a fair trial and a law which provides the accused with a properopportunity to respond to the prosecution’s case on the basis of relevant andreliable evidence. Hence, Major J acknowledged, in delivering the judgmentof the Supreme Court in McClure:

“The right of the innocent not to be convicted is reflected in oursociety’s fundamental commitment to a fair trial .. . l68 It has longbeen recognised that an essential facet of a fair hearing is theopportunity adequately to state [one’s] case. This applies withparticular force to the accused.”169

Litigation privilege

69 The issue of whether litigation privilege is absolute has arisen onlyvery recently. It is clear that in Derby, the House of Lords were specificallyconcerned with a communication which attracted lawyer and client privilege.As litigation privilege was not an issue in that case, it may be said that thecase 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 thisprinciple did not apply to communications protected by litigation privilege.Accordingly, a medical report obtained by a parent from a consultantpathologist (prepared for the pending wardship proceedings)172 concerningthe circumstances of the consumption of a drug by a child, could bedisclosed to the police so that they could determine whether the parentshould be prosecuted. Lord Jauncey, who delivered the judgment of themajority, said:173

“It is clear from the reasoning of Lord Taylor CJ and of the othermembers of the committee [in Derby] that the reference to legalprofessional privilege was in the context of the relationship betweensolicitor and client. Indeed, there was no occasion to considerwhether and in what other circumstances absolute legal professionalprivilege might apply.”

See, in particular, Arts 9(1)–(4) and 12(1) of the Constitution.The court referred to s 1 l(d) of the Canadian Charter of Rights and Freedoms, whichembodies this principle.[2001 ] 1 SCR 445, at 460–461.[1997] AC 16.Lords Jauncey, Lloyd and Steyn. Lords Nicholls and Mustill dissented.Therefore, litigation privilege applied to the report.Ibid, at 24.

167168

169170171172173


70 Lord Jauncey rejected the contention that “the absolute nature ofthe privilege attaching to the lawyer and client relationship extended equallyto all other forms of legal professional privilege”:174

“There is ... a clear distinction between the privilege attaching tocommunications between solicitor and client and that attaching toreports by third parties prepared on the instructions of a client for thepurposes of litigation. In the former case, the privilege attaches toall communications whether related to litigation or not, but in thelatter case it attaches only to documents or other writtencommunications prepared with a view to litigation. There is thisfurther distinction that whereas a solicitor could not without hisclient’s consent be compelled to express an opinion on the factual orlegal merits of the case, a third party who has provided a report toa client can be subpoenaed to give evidence by the other side andcannot decline to answer questions as to his factual findings andopinion thereon. There is no property in the opinion of an expertwitness.”175

71 In S County Council v B,176 which involved care proceedings inrelation to a child who had suffered injuries, Charles J ruled that the fathershould not be required to disclose a medical report prepared for the purposeof separate criminal proceedings against him for causing grievous bodilyharm177 to that child. Charles J reached a different conclusion from thatof the majority of the House of Lords in Re L.178 The learned judgeexpressed the view that although Derby Magistrates is concerned withlawyer and client privilege, the decision in that case affected litigationprivilege as well:179

“... in my judgment, although the actual decision in [Derby] relatesonly to communications between a client and his solicitor, the effectof the decision is not so confined. Rather, in my judgment, it isauthority for the proposition that when material is subject to legalprofessional privilege the person who can claim that privilege has anabsolute right to do so and thus to refuse disclosure.”

Ibid, at 24–25.An important aspect of the case is that the report was prepared for the purpose of thecare proceedings. As such proceedings are non-adversarial in nature and are primarilyconcerned with the welfare of the child, the court will not uphold a claim for litigationprivilege where this would hinder the purpose of the proceedings.[2000] 3 WLR 53. The case is cited in main text at note 69.Therefore, the report was protected by litigation privilege.The learned judge conceded that he would be wrong if Lord Jauncey’s view (see extractimmediately above) is ‘read in isolation’ rather than “in context”. (Ibid, at 70.)[2000] 3 WLR 53, at 63–64.

174175

176177178

179


72 Charles J preferred to equate lawyer180 and client privilege andlitigation privilege on the basis that they are “based on the development andapplication of the same underlying public interest and reasoning”.181 Thisconclusion is questionable in the face of the different aims of these privileges.One ensures that the client is encouraged to candidly disclose all relevantinformation so that he may be properly represented and advised. The otheris specifically concerned with maintaining the confidentiality of third partycommunications which might otherwise reveal the party’s personal strategyor approach to the case.182 According to the House of Lords in Derby, theabsoluteness of the lawyer and client privilege arises from the concern thatthe client would be less than candid if he knew that the communicationsbetween him and his lawyer could one day be disclosed. This apprehensiondoes 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 expertwitness) may be compelled183 to give evidence on the issues at trial eventhough his report to the lawyer or client attracts litigation privilege.184 Theoverlap between litigation privilege and lawyer and client privilegeoccurs where the third party communication reveals the advice or othercommunications protected by lawyer and client privilege. In thesecircumstances, 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 attrial.185 It is also well established that litigation privilege is subject to theoverriding interests of a child in care proceedings.186 There is no reasonwhy the balancing approach established in Ataou should not apply so thatthe court may determine whether one competing interest should overrideanother. If, for example, a report is obtained from a medical expert for thepurpose of determining whether the assured died from accidental causes inan insurance action, its disclosure to the prosecution or accused in separatecriminal 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 besubpoenaed by the opponent.As pointed out by Lord Jauncey in Re L (A minor). (See the extract of his judgment inthe main text after note 174.) In practice, a party who wishes to rely on his expert’sevidence at trial normally waives litigation privilege and discloses the report to the otherparty and the court with a view to establishing the expert’s opinion in court.Ibid.See notes 104, 130, 183 and 190.

180181182183

184

185186


See S County Council v B [2000] 3 WLR 53.See main text from note 41.For example, in the form of broader discovery and the exchange of affidavits of theevidence in chief well before trial.Kennedy v Lyell (1883) 23 Ch D 387, at 404; Law Reform Committee, 16th Report,1967, para 17.

187188189

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involved. If the accused or prosecutor can show that the report is necessaryfor his defence or the prosecution respectively, and the party whocommissioned the report in the civil claim has a lesser interest or no interestin preserving the privilege, the document should be disclosed.

Conclusion

74 In conclusion, it may be said of litigation privilege that the SingaporeHigh Court in The Patraikos No 2 ought not to have accepted Sir RichardScott VC’s formulation in Baker as declaratory of the law governinglitigation privilege. It runs contrary to pre-existing authorities in bothSingapore and England and has been criticised.187 The question arises asto how a Singapore court is likely to treat this development in the future.The argument could be raised that litigation privilege militates against themodern practice of “cards on the table litigation”. This consideration maywell have underpinned Sir Richard Scott VC’s self-proclaimed inability to“identify” a public interest in litigation privilege merely on the basis of thedominant purpose test.l88 The answer to this is that the policy of disclosurebefore trial in the interest of justice essentially applies to evidence.189 Whilerelevant evidence is common property for the purpose of trial (no matterwhich party controls or possesses it), and should be made available to allconcerned in the interest of proper adjudication, the manner in which theadvocate and solicitor strategises and prepares his case for trial is personalto him and his client. As has been pointed out in so many cases, theadvocate (or unrepresented party) must be able to go about his own workwithout interference or the worry that everything he does will be open tothe opposing party’s or public scrutiny.190

75 With regard to lawyer and client privilege, the argument has beenmade in this article that the absolutist approach in Derby MagistratesCourt should not be endorsed by the Singapore courts. Important thoughit is, the exceptions and qualifications to this privilege indicate that in certainlimited circumstances the privilege must give way to other public interestconsiderations. The balancing process advocated by the English Court ofAppeal in Ataou appears the fairest method for resolving the conflictaccording to the circumstances of each case. As far as the Evidence Act


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.

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is concerned, a purposive approach to provisions governing the privilege isadvocated in the overall interest of justice. The issue of whether litigationprivilege is an absolute doctrine has given rise to divergent views.191 Again,it has been argued that the absolutist approach should not be adopted andthat the balancing process should be applied.

JEFFREY PINSLER*
