Edmund Wan, Partner, and James Wilkinson, Senior Associate, King & Wood Mallesons
The Competition Commission has published guidelines on handling claims of legal professional privilege made during dawn raids.
Under the guidelines, the Commission will take steps to avoid reviewing material that is subject to a claim for privilege until the claim is resolved.
When can the Commission carry out a dawn raid?
The Commission may apply to a judge of the Court of First Instance for a warrant to enter and search premises. The judge may issue a warrant if there are reasonable grounds to suspect that there are or are likely to be, on the premises, documents that may be relevant to an investigation by the Commission.
A warrant gives the Commission power to copy and seize relevant documents, computers and other electronic equipment found on the premises.
Legal Professional Privilege
A search warrant does not give the Commission the power to view material that is subject to legal professional privilege. An investigated party may raise a claim for privilege in relation to privileged material during the execution of a search warrant.
Legal professional privilege applies to confidential communications between lawyer and client made for the purpose of obtaining legal advice. Privilege extends to communications with in-house solicitors where they are providing independent legal services.
Privilege also applies to communications between a lawyer and a third party that come into existence after litigation is contemplated or commenced and made with a view to the litigation.
Procedure When Privilege Claim is Made
If the Commission agrees that material is privileged, and the privileged material can be separated from non-privileged material, the Commission will not copy or seize the material.
If the Commission disputes the privilege claim, or if material is only partly privileged, the Commission will seal the material in an envelope or other container, and remove the material from the premises.
The investigated party must then, within seven days, prepare an index of the materials and provide a supporting statement setting out the basis for its privilege claim in relation to each item.
The Commission will return an item if satisfied, based on the supporting statement, that the item is privileged. If only part of a document is privileged, arrangements will be made for privileged information to be redacted.
If a dispute remains as to whether material is privileged, the Commission will confer with the party claiming privilege on the approach to resolving the dispute expeditiously. A process involving an independent third party lawyer may be agreed.
If the dispute cannot be resolved, either party may apply to the court for determination of the matter.
The guidelines, titled “Investigation Powers of the Competition Commission and Legal Professional Privilege”, are available on the Commission’s website.