Hong Kong law and English law have over recent years diverged on the meaning of “client” for the purposes of asserting legal advice privilege. Practitioners and businesses in Hong Kong need to be aware that communications involving an in-house lawyer and their “client” may not be privileged under English law as it currently stands, whereas they would be privileged under Hong Kong law. While the narrow English interpretation has not been adopted by the Hong Kong Courts, any Hong Kong based client who could potentially become involved in English litigation (whether through an English business/subsidiary or in relation to an English law governed contract) should be aware of the developments on legal advice privilege in the English Courts. Privilege is determined by the law of the forum of the litigation under both English and Hong Kong law.

The recent English High Court decision in Glaxo Wellcome UK Ltd v Sandoz Ltd [2018] EWHC 2747 (Ch) shows the potential holes in what businesses would usually consider to be privileged in-house communications. The English Court held that an in-house lawyer’s communications with an employee of the business, who was accepted to be her in-house “client” in these circumstances, were not protected by legal advice privilege where the purpose of those communications was to seek and obtain information to provide to external lawyers in order to obtain their legal advice. In doing so, the English Court applied the narrow interpretation of “client” established in the notorious Three Rivers No 5 decision, as recently confirmed by the English Court of Appeal in the ENRC case (see here).

This decision confirms that (under English law) an individual may be a lawyer’s “client” and therefore entitled to communicate information to the lawyer under the protection of privilege for one purpose but not for others. In equivalent circumstances in Hong Kong, the broader meaning of “client” would potentially make all such communications privileged. Continue reading →