LEGAL ADVICE PRIVILEGE: WHY HK LAWYERS AND BUSINESSES NEED TO KNOW ABOUT THE NARROW POSITION UNDER ENGLISH LAW

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

Wikileaked? Singapore Court upholds privilege over hacked documents

In the recent decision of Wee Shuo Woon v HT S.R.L [2017] SGCA 23, the Court of Appeal considered whether evidence which had been made available on WikiLeaks as a result of the Respondent's ("HT S.R.L."') computer systems being hacked had lost its confidential and legally privileged status. 

The decision, which has taken on added significance in the wake of recent global cyber-attacks, indicates that the Singapore courts will be slow to admit evidence obtained as a result of such incidents.  In particular, the Court held that the equity in favour of restraining the use of privileged documents was even stronger in the case of documents obtained in a cyber-attack than in the case of those obtained by virtue of a party's innocent mistake.  The order to exclude such evidence was upheld.

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Herbert Smith Freehills Singapore hosts round table discussion on “preserving privilege: practical issues in the context of disputes and investigations”

On Wednesday 13 January 2016, a cross section of our clients based in Singapore joined our Disputes and Corporate Crime & Investigations teams and Bankim Thanki QC, a leading commercial advocate and litigator who has practised extensively in the region and the editor of The Law of Privilege (Oxford), for a roundtable discussion on the preservation of privilege.

In this e-bulletin, Alastair Henderson, Pamela Kiesselbach and Daniel Waldek summarise some of the key issues discussed in relation to privilege and its preservation, and practical suggestions coming out of those discussions.  The ebulletin looks at internal investigations, internal information gathering for the purpose of obtaining legal advice, and waiver of privilege as a result of disseminating legal advice internally or sharing it with third parties.

For more information, please contact the authors or your usual Herbert Smith Freehills contact.

Alastair Henderson
Alastair Henderson
Managing partner, Singapore, Head of international arbitration practice, Southeast Asia
+65 6868 8058
Pamela Kiesselbach
Pamela Kiesselbach
Senior Consultant
+65 6868 9826
Daniel Waldek
Daniel Waldek
Senior Associate
+65 6868 8068

 

 

Legal advice privilege only covers advice from lawyers, says the Hong Kong Court of Appeal

In the recent case of Super Worth International Ltd & Ors v Commissioner of the ICAC & another (CACV 168/2015), the Hong Kong Court of Appeal (the "Court") adopted the UK Supreme Court's reasoning in R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1, and held that legal advice privilege ("LAP"), a limb of legal professional privilege ("LPP"), does not extend to legal advice given by non-lawyers such as accountants.

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Legal advice privilege – taking a closer look at the Hong Kong Court of Appeal judgment in adopting a wider test

The judgment recently delivered by the Hong Kong Court of Appeal (CA) in Citic Pacific Limited v Secretary for Justice and Commissioner of Police (unrep, 29/06/2015, CACV 7/2012) sets a new precedent in Hong Kong for legal advice privilege. In its decision, the CA expressly disagreed with the restrictive definition of a ‘client’ adopted by the English Court of Appeal in Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474 and decided to take a more liberal approach in interpreting who the ‘client’ is for the purpose of legal advice privilege. According to the CA’s judgment, the client is simply the corporation and the question is which employees should be regarded as being authorised to act for it in the process of obtaining legal advice. In addition, and importantly, the CA has adopted a broader test for legal advice privilege than had previously applied. As a result of the decision, legal advice privilege is no longer restricted to communications between a lawyer and a client, but now extends to cover an internal confidential document of a client organisation which is produced or brought into existence with the dominant purpose that the document or its contents be used to obtain legal advice.

Click here to access our recent ebulletin in which Gareth Thomas, Julian Copeman and Dominic Geiser take a closer look at the expanded test for legal advice privilege, the new definition of ‘client’ and its application, procedures to be adopted when privilege is in dispute including the CA’s recommendation of instructing an independent lawyer to deal with privilege materials and some salient take away points.

For more information or if you wish to discuss any matters, please contact the authors or your usual Herbert Smith Freehills contact.

Hong Kong Court of Appeal rejects the narrow interpretation of “client” and adopts a broader test for legal advice privilege

The Court of Appeal has handed down its much-awaited judgment in Citic Pacific Limited v Secretary for Justice and Commissioner of Police (unrep, 29/06/2015, CACV 7/2012), a copy of which was made available today and can be accessed here. In a joint judgment, three judges have rejected the Hong Kong Court of First Instance’s (CFI) narrow view of who from within a client organisation constitutes the “client” for the purposes of considering whether legal advice privilege applies. In the Court of Appeal’s judgment, the client is simply the corporation and the question is which employees should be regarded as being authorised to act for it in the process of obtaining legal advice. Continue reading

Hong Kong Court of Final Appeal upholds legal professional privilege as an absolute right

The Court of Final Appeal  has, again, reminded us in the recent high profile case of Secretary for Justice v Florence Tsang & others that legal professional privilege is an absolute right that is constitutionally enshrined. As noted in Akai Holdings Ltd v Ernst & Young (a Hong Kong firm), which was applied in this case, Article 35 of the Basic Law provides the constitutional basis for LPP in Hong Kong. This decision should provide welcome reassurance to clients obtaining or receiving confidential legal advice from their lawyers in Hong Kong. Click here to read more.

 

Hong Kong High Court adopts English approach for implied waiver of privilege

In the recent decision of Chinachem Financial Services Limited v Century Venture Holdings Limited HCA 410/2013 & HCMP 2299/2013 (“Chinachem Financial Services“), the Hong Kong court considered the approach to the issue of implied waiver of legal professional privilege in Australia, England and the USA. The judge held that the correct approach in Hong Kong is to follow the English approach – i.e. that there will be an implied waiver if there is disclosure of the privileged material or use of the privileged material to advance a party’s case in litigation. Continue reading