Important: The law and procedure in this area are very specialized and complicated. This article is only a very general overview for reference and cannot be used as legal advice in an individual case. If you need advice or assistance, please contact our lawyers. The practical application of the doctrine of partial waiver of privileges is well demonstrated in this case. It should be noted that on this issue, the Court of Appeal preferred the approach of the English courts to that of Judge Keith JA in the Rockefeller case. In all cases where privileged information is disclosed to third parties, the conditions for waiver of privileges and the scope of the use permitted by the third party must be clearly stated in writing. “At its peak, the relationship between [Lyell and Kennedy] was at its peak. that if the selection of documents that a lawyer has copied or compiled reveals the trend in the advice he gives to the client, the documents are preferred”: Ventouris v Mountain, 615 et seq. (§ 38 para.
1) As BVG has a much more restricted application in the United Kingdom, there is concern that when documents are submitted to a regulatory body in the United Kingdom, as noted in SFO v. ENRC, is local protection automatically lost? In Hong Kong, courts recognize “partial waiver”, which means that a privileged document can only be delivered to a specific party for a specific/limited purpose, thereby waiving that document`s privilege over that part and only for that purpose. The privilege of the document is retained vis-à-vis all third parties. Solicitor-client privilege applies to communications with broad forms and are not limited to paper documents, i.e. electronic documents such as emails and recordings of telephone conversations, including copies thereof. If litigation is ongoing, pending or reasonably contemplated, it may be more practical to claim LP because the privilege extends to the disclosure or collection of information from third parties. Although RBS did not claim LP, ENRC stated that LP objected to SFO`s disclosure notices against interview notes. However, ENRC`s LP liability action also failed, as the court stated that (i) ENRC could not prove that adversarial litigation was contemplated at the time the documents were prepared; (ii) “a reasonable review of a criminal investigation does not necessarily equate to a reasonable review of prosecutions”; and (iii) “investigation and prosecution cannot be described as part of an ongoing amorphous process”.
Following the decision of the Hong Kong Court of Appeal in Citic Pacific Limited v Secretary for Justice & Another [2015] 4 HKLRD 20, the Hong Kong legal advice privilege continues to apply to communications between employees of corporate clients and outside lawyers, and its application is subject to the primary purpose test of obtaining or using legal advice. 1. “Legal privilege” refers to communication between a lawyer and his or her client for the purpose of legal advice or questioning. In this context, “legal advice” can refer to guidelines on the implementation of certain measures or the presentation of a case and is not limited to a legal opinion on what the law is. Unlike litigation privilege, this type of privilege does not apply to third parties. On the facts of the case, the court found that Citic had only partially waived privilege for the purposes of SFC`s investigation and that the waiver was broad enough to allow SFC to use the legal documents to seek legal advice from the Department of Justice. The Court further noted that if Citic`s legal counsel had specifically indicated the basis on which the documents had been provided to the SFC, the extent of Citic`s waiver would not have been disputed. A partial or limited waiver of solicitor-client privilege for a particular purpose is permitted so that solicitor-client privilege is not lost for other purposes. In this context, “absolute” means that there are no competing political considerations.
As for litigation privilege, as noted in previous Industry Outlook, it has come under scrutiny by the courts in recent years, and lawyers should keep abreast of developments – particularly the “grey area” between contentious and non-contentious issues. Solicitor-client privilege applies to both in-house and qualified counsel, provided that the in-house lawyer is a professionally qualified lawyer and acts as such. Sign up to receive the latest legal developments, ideas and news from Ashurst. By registering, you agree to receive marketing messages from us. You can unsubscribe at any time. Keung v Commissioner of Police [2022] HKCFI 374 discusses (among other things) the circumstances in which non-privileged documents compiled or selected for legal advice may be protected by solicitor-client privilege. Internal communications between the company`s legal department and other employees are also protected by legal counsel, provided that such communications or documents have been prepared or prepared for the primary purpose of legal advice. The Court placed great importance on the overriding objective test in order to effectively eliminate unfounded claims of privilege. The Court noted that, in the modern world, it is unlikely that a small group of legally skilled workers would have the technical knowledge and skills required to gather the information necessary to obtain legal advice.
