INTRODUCTION

Legal professional privilege is a legal concept that protects certain communications and
information between clients and their legal advisors from disclosure. This privilege is
intended to encourage open and honest communication between clients and their lawyers,
allowing clients to seek legal advice without fear that their communications will be used
against them in legal proceedings.

There are two main types of legal professional privilege:

1. Legal Advice Privilege: This privilege protects communications between a client and
their lawyer in the course of seeking or providing legal advice. It covers both oral and
written communications and extends to documents created with the dominant purpose
of seeking or providing legal advice.

2. Litigation Privilege: This privilege protects communications between a client and

their lawyer, or between a lawyer and a third party when such communications are
made for the dominant purpose of preparing for existing or anticipated litigation. It
covers documents created in anticipation of litigation.

In the context of the privilege, it must be remembered that the courts have placed limits upon
the communications which will be protected as privileged. Two examples follow:

◆ The communication in question must involve the giving of legal advice. Accordingly,
documents which are brought into existence by a solicitor to record transactions in a
solicitor’s trust account will not be protected by the privilege.

◆ Where it can be established that a communication that would otherwise be within the ambit
of a protected communication has been made in furtherance of a fraudulent design, the
privilege cannot be invoked as a basis for refusing to disclose such communications. Where
the court is satisfied that a strong prima facie case of fraud has been made out, it will not
recognize the privilege and will permit the privileged communications to be adduced in
evidence, whether orally or in writing. The privilege remains the privilege of the client or
clients. It can be waived expressly or by implication. If the privilege can be invoked by two
or more joint clients, a waiver by only one of the clients will suffice to allow the (otherwise)
privileged communication to be adduced in evidence.
FACTS OF THE CASE

The case of Equiticorp Industries Group Ltd v Hawkins [1990]2 N.Z.L.R. 175 is a
landmark case in New Zealand. It concerns the admissibility of evidence in court
proceedings. The case involved the sale of New Zealand Steel to Equiticorp Holdings Ltd,
which was financed by the parent company of the Equiticorp Group. The Crown was advised
that the said financing arrangement was in breach of Section 62 of the Companies Act 1955,
which prohibits a company from providing financial assistance for the purchase of its shares.
The Crown required these arrangements to be undone, and the solicitor certified that this had
been done. The defendants claimed legal professional privilege. However, the judge noted
that this fact was not only known to the solicitor but also to two senior treasury officials, the
Crown’s sales agents, and its financial advisers. The court therefore held that the solicitor’s
certification was made to further a fraudulent purpose and was therefore not protected by
legal professional privilege.

LEGAL ISSUE ADDRESSED IN THE CASE

The court was to address the issue as to whether the defendants could rely on legal
professional privilege.

HOLDING

The case went to the court of Appeal (New Zealand Court of Appeal) which held that a
contract that is contrary to public policy is unenforceable. It also held that the public policy
exception to legal professional privilege is limited to cases where the administration of justice
is at stake.

PRINCIPLE ESTABLISHED BY THE CASE

The case established the principle that legal professional privilege does not apply to
communications that are made between a solicitor and client for the purpose of furthering a
criminal or fraudulent purpose.

LINK TO KENYAN LAW

Evidence Act Cap 80-Section 134. (1) No advocate shall at any time be permitted, unless
with his client’s 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:

Provided that nothing in this section shall protect from disclosure–

(a) any communication made in furtherance of any illegal purpose.