Recent Developments On The Doctrine of Legal Professional Privilege

JTJB Legal Update May 2014

The High Court in Singapore recently considered the doctrine of legal professional privilege in Boey Chun Hian v Singapore Sports Council (Neo Meng Yong, third party) [2013] SGHCR 15

The Facts:

A 15 year old child was participating in a life-saving course at Hougang Swimming Complex when the child sustained severe personal injury as a result of a near drowning incident. The child’s father (“the Plaintiff”) brought an action against Singapore Sports Council (“SSC”) (“the Defendant”), which own and operates Hougang Swimming Complex. The Plaintiff sought discovery of:

1. All witness statements, police statements and/or documents taken or recorded or received by SSC from, or exchanged with, the witnesses of the near-drowning incident, and all parties who spoke with or interviewed such witnesses (“witness statements”); and
2. The Committee of Inquiry Report dated 20 June 2009 (“the COI Report”).

SSC argued that the witnesses’ statements are protected by litigation privilege while the COI Report is covered by legal advice privilege.

LITIGATION PRIVILEGE

Was there a reasonable prospect of litigation in respect of witnesses’ statements?

The relevant time at which the courts must consider this criterion is the point in time when the documents came into existence. The judge accepted that on the facts of this case, given that the personal injuries which ensued were very severe, resulting in permanent disabilities, there was a reasonable prospect of litigation at the time the witness statements were taken and prepared.

Was the dominant purpose of the witnesses’ statements for the purpose of the pending or contemplated litigation?

On the facts of the case, the judge found that the use of the witness statements for submission to SSC’s in-house counsel was for three purposes:-

1. to assist in establishing the circumstances surrounding the incident;
2. to prepare a report for submission to in-house counsel; and
3. to supply to the COI, if and when convened , for it carry out its investigations

At best, the Court found that litigation was only one of three purposes and not the dominant purpose. The witness statements did not attract litigation privilege as they were not made for the dominant purpose of litigation.

LEGAL ADVICE PRIVILEGE

The Judge had already been persuaded that the COI Report was primarily of a fact finding nature. To claim legal advice privilege, the dominant/principal purpose for the creation of the document must be for seeking legal advice. The COI Report did not attract legal advice privilege as it was not created for the dominant purpose of seeking legal advice.

MANAGING THE RISKS

There are steps you can take to preserve legal professional privilege. Here are some tips :-

1. Avoid sending routine documents created for purposes other than legal advice through in-house counsel.
2. Copy legal counsel on any internal communications discussing matters which may turn litigious and/or require legal advice.
3. Communications and documents created for the purposes of legal advice should only be copied to necessary persons within the organisation.
4. Avoid discussing legal and other issues in the same communication when practicable.
5. If there is a real risk that litigation may arise from a particular transaction/incident and the Company wishes to carry out an internal investigation into that transaction or incident, legal counsel or external counsel should lead the investigation.
6. Avoid using the same document for multiple purposes.

Contributed by:

Jeevan John Partner jeevan@jtjb.com Jeevan was called to the Singapore Bar in 1999. His area of practice in Civil Litigation include Insurance and Personal Injury & Matrimonial and Family Law.