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Legal Advice Privilege2
Legal Advice Privilege2
In other words, the client (or a third party to whom such privilege accrues) can waive the
privilege, provided he has the authority to do so.
Under What Circumstances Does Privilege Attach?
In Three Rivers District Council v Bank of England, (a case in which the House of Lords
extensively reviewed the whole law in this area) Lord Scott of Foscote said:
legal advice privilege arises out of a relationship of confidence between lawyer and client.
Unless the communication or document for which privilege is sought is a confidential one, there
can be no question of legal advice privilege arising. The confidential character of the
communication is an essential requirement.'
This makes plain that, at common law, not all communications passing between solicitors and
clients are protected, only those which are confidential communications.
Section 126 of Evidence Act 1950
Section 126 of the Evidence Act 1950 provides that no . advocate shall at any time be
permitted, unless with his clients express consent, to disclose any communication made to him
in the course and for the purpose of his employment as such advocate by or on behalf of his
client, or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to disclose any
advice given by him to his client in the course and for the purpose of such employment
It is noticeable that section 126 does not employ the word confidential. Therefore, on the face
of it, section 126 appears to protect all communications between clients and their legal advisers.
See Teow Chuan v Dato Anthony See Teow Guan
The Court of Appeal in the recent case of See Teow Chuan Case was faced with three questions:
Does Malaysian evidence law, pursuant to the Evidence Act 1950, extend protection under legal
advice privilege to all communications between solicitors and clients or only (as with the
common law) to confidential communications?
Assuming a communication between a solicitor and his client is prima facie privileged, would
the exhibiting of that communication in court documents in the process of litigation, thereby
necessarily coming into possession of the opposite party and being filed on record, tantamount to
a waiver?
We have taken pains to set out the chronology and sequence of events and facts in order to
appreciate the factual matrix of this case. From the fact pattern it is very clear to us that the
communications between the defendant and the solicitor was not intended to be confidential.
Both the defendant and the solicitor knew in advance that the legal opinion would be circulated
and published to the [Companys] Board and Audit Committee members including the plaintiffs
and the external auditors of [the Company]. The defendant caused the publication of the legal
opinion to the external auditors in the knowledge that the auditors will furnish the legal opinion
to the plaintiffs and those present at the [various meetings]. It was the natural and probable
consequence of the defendants publication of the legal opinion. There was no element of secrecy
or confidentiality when [the legal opinion was] distributed and published
Moreover, the Court of Appeal observed that even if a communication at its inception is
confidential, that confidentiality is [a] characteristic [that] can be lost.
Was There Express Waiver of Privilege?
The Court of Appeal was
opinion to a host of other
The Court held that the
disclosing and publishing
express waiver.
of the view that the moment the defendant had published the legal
persons, it constituted an express consent and waiver of privilege.
conduct of the defendant in expressly waiving the privilege by
the legal opinion to third parties is illustrative of the principle of
It was fatal to the defendants argument, said the Court, that the legal opinion was privileged,
when the plaintiffs were given copies of the legal opinion. The plaintiffs never requested for the
legal opinion. They did not obtain the legal opinion by any devious means or by theft.
Accordingly, the Court of Appeal concluded thus:
In our judgment the facts of this case clearly demonstrate that the communications between the
defendant and the solicitor was (sic) not intended to be confidential. In all the circumstances of
the case and for the grounds given above we hold that the defendant had waived the
confidentiality and the privilege attached to the legal opinion We hold that in this case on the
facts the communications between the defendant and the solicitor is not protected by privilege
under section 126 of the Evidence Act 1950.
Does The Disclosure Of Privileged Material In Interlocutory Proceedings Amount To A Waiver?
As it happened, in the See Teow Chuan Case the legal opinion was exhibited as an exhibit to the
plaintiffs affidavit in reply to the defendants interlocutory application for striking out and was
read by all parties at the striking out proceedings in the registrars chambers and in open court at
the trial. Relying on the judgment of the Supreme Court in Jaafar bin Shaari v Tan Lip Eng and
the Court of Appeal (Eng) in Derby & Co Ltd v Weldon,[ the Court of Appeal held that as the
legal opinion was exhibited in the affidavit and deployed in court in the striking out
[interlocutory] application by the defendant and was also read out in open court by counsel for
both parties the privilege was clearly waived altogether.
Conclusion
At the outset it was stated that Court of Appeal in the See Teow Chuan Case was faced with 3
questions as follows:
Does Malaysian evidence law, pursuant to the Evidence Act 1950, extend protection under legal
advice privilege to all communications between solicitors and clients or only (as with the
common law) to confidential communications?;
Can a client implicitly by conduct waive legal advice privilege? and
Assuming a communication between a solicitor and his client is prima facie privileged, would
the exhibiting of that communication in interlocutory court documents in the process of
litigation, thereby necessarily coming into possession of the opposite party and being filed on
record, tantamount to a waiver?
How did the Court of Appeal answer these questions? It did so as follows:
Malaysian evidence law, pursuant to the Evidence Act 1950, extends protection under legal
advice privilege only to confidential communications between solicitors and clients (as is the
case at common law).
A client could by conduct (in circumstances which may appear, in the ordinary sense of the
word, implicit actually be held to be explicit) waive legal advice privilege, especially where
the waiver is alleged to be so on the basis that the client had voluntarily published such
potentially privileged communications to others outside a confidentiality setting. In those
circumstances, such waiver would be regarded (by the courts) not as an implicit waiver but an
express one.
Where privileged materials are disclosed in interlocutory court proceedings in circumstances
where all the relevant parties (especially the opposite side) to the proceedings would have had
recourse to them, the act of disclosure could amount to a waiver in the appropriate
circumstances.