A Tale of Two Privileges

David Smyth and Amy Chung, Disputes Resolution Practice Group, Smyth & Co in association with RPC

Much has already been written about the Court of Appeal's landmark judgment in Citic Pacific Ltd v Secretary for Justice (No 2), including in the Hong Kong Lawyer*. That judgment is now reported ([2015] 4 HKLRD 20) and, at the time of writing, no appeal appears to be in sight. As a result, legal advice privilege has been put on a more expansive footing; for example, a restrictive view of a corporate client in this context has been specifically disavowed. A confidential communication brought into existence with the dominant purpose that it or its contents be used for the purpose of obtaining legal advice is privileged.

What of recent common law developments concerning litigation privilege (the other type of legal professional privilege)?

While claims to litigation privilege are considered on a case by case basis, it would be fair to state that the general trend has been more restrictive. Of late, claims to litigation privilege has been subject to closer scrutiny by common law courts and matters have become more complicated (particularly, in a regulatory context).

A "dominant purpose" test also applies in the context of litigation privilege. Under Hong Kong common law, litigation privilege protects confidential documents that are created: (i) between a lawyer and a client or a client and third party or a lawyer and third party; (ii) at a time when litigation exists or is reasonably anticipated; and (iii) for the "dominant purpose" of obtaining legal advice, evidence or information for that litigation.

Hong Kong common law applies general English common law principles in this regard. In a trend of recent English cases during the past few years claims to litigation privilege have been found wanting. Such cases include: Hallows v Wilson Barca LLP [2015] Chancery Division (unreported), 10 September 2015 (pre-planning advice obtained from a local planning authority); Rawlinson and Hunter Trustees SA & Ors v Akers & Anor [2014] EWCA Civ 136 (accountants' reports prepared for a liquidator); and Starbev Gp Ltd v Interbrew Central European Holding BV [2013] EWHC 4038 (separate reports prepared by a bank and a firm of accountants following the sale of the defendant's business to the claimant).

At the risk of oversimplification, litigation privilege protects "evidence gathering" with respect to contentious proceedings. With that in mind, when a lawyer or client communicates with a third party in connection with a matter that is or may become contentious, it is important to record at the outset that the main purpose of the communication is to obtain information for that matter. Of course, if the person from whom the information is sought is concerned for their own position, this could run the risk that they may not cooperate.

Practitioners and academics would do well to stay abreast of these developments. Both types of legal professional privilege are not mutually exclusive. However, they are (for now) distinct and following different trends. Further, as Charles Hollander QC notes in the September 2015 edition of the Hong Kong Lawyer (at pages 42 and 45), there is the potential for further significant developments, including the issue of whether legal advice privilege should be extended to "third party communications".


 

* For example: (i) “Three Rivers is no more”, September 2015 (http://www.hk-lawyer.org/en/article.asp?articleid=3137&c=97) and (ii) “Court of Appeal disagrees with Three Rivers (No. 5)”, August 2015 (http://www.hk-lawyer.org/en/article.asp?articleid=3086&c=107). The Citic Pacific (No. 2) judgment has already been applied in Yung Mei Chun Jessie v Merrill Lynch (Asia Pacific) Ltd [2015] HKEC 1757, 25 August 2015.

Note: In HKSAR v Yeung Ka Sing Carson [2014] HKEC 405, there is an interesting short passage on implied waiver of litigation privilege with respect to communications referred to in an expert witness’s report used at trial.