Singapore: Legal Professional Privilege and Implied Undertaking

Legal Professional Privilege

Does your jurisdiction recognise or hold a concept of legal professional privilege? What is it called?

There are two forms of legal professional privilege. They are (1) legal advice privilege and (2) litigation privilege.

Legal advice privilege protects confidential communications between a lawyer and their client when giving or receiving legal advice. It also protects documents which contain such communications.

Litigation privilege applies when there is a reasonable prospect of litigation and the communications or documents come into existence for the dominant purpose of litigation.

What is the basis at law of legal professional privilege in your jurisdiction?

Legal advice privilege is a statutory right under sections 128 and 131 of the Evidence Act.

Section 128 prevents an advocate and solicitor from (a) disclosing any communication made to them by or on behalf of their client; or (b) stating the contents or condition of any document of which they had become “acquainted” with; or (c) disclosing any advice given to them by their client, to the extent that these were provided to them in the course and for the purpose of their employment as an advocate and solicitor.

Section 131 protects the client from having to disclose to any other party any legal advice they obtained from their legal adviser.

Litigation privilege, on the other hand, exists at common law. The Singapore courts have held that section 131 of the Evidence Act envisages and therefore allows for the concept of litigation privilege at common law to be applied by the courts.

How does legal professional privilege operate in your jurisdiction in the context of:

…lawyers qualified in your jurisdiction?

Sections 128 and 131 of the Evidence Act apply respectively to an “advocate and solicitor” and a “legal professional adviser”.

Lawyers qualified in Singapore are considered as advocates and solicitors under section 12 of the Legal Profession Act. An advocate and solicitor is also considered a legal professional advisor under section 131 of the Evidence Act. The rules of legal professional privilege would therefore apply to Singapore-qualified lawyers.

…in-house lawyers?

Pursuant to section 128A of the Evidence Act, legal professional privilege extends to confidential communications with in-house counsel. However, this is subject to three conditions.

First, in keeping with the position for legal advice privilege, only confidential communications with in-house counsel can be the subject of legal advice privilege.¹

Second, in-house counsel must possess legal expertise. This would usually mean that the in-house counsel is eligible to be a Singapore-qualified lawyer under the Legal Profession Act. While this doesn’t preclude foreign-qualified lawyers from being in-house counsel, such lawyers cannot provide advice in contravention of the relevant provisions of the Legal Profession Act.²

Third, the in-house counsel must have been consulted qua legal adviser. The communication must be in relation to a professional matter and the in-house counsel rendering the advice must have been acting “independently or professionally”.³

…patent and trade mark attorneys?

Patent and trademark attorneys are considered to be advocates and solicitors of the Singapore Supreme Court because they must be admitted by the Supreme Court under section 12 of the Legal Profession Act if they are to practise or advise on Singapore law. The rules of legal professional privilege would therefore apply to patent and trade mark attorneys (but not patent / trade mark agents who are not Singapore-qualified lawyers).

…foreign qualified lawyers?

Legal professional privilege also applies to foreign qualified lawyers in Singapore.

Sections 128A, 130 and 131 of the Evidence Act create a statutory entitlement to legal professional privilege. These sections refer to communications between a client and “legal counsel”.

Section 3(7) of the Evidence Act defines “legal counsel” as a person (by whatever name called) who is an employee of an entity employed to undertake the provision of legal advice or assistance in connection with the application of the law or any form of resolution of legal disputes. There are no requirements that the legal counsel be admitted to the bar in Singapore.

Further, common law rules of privilege pertaining to foreign lawyers continue to apply so long as they are consistent with the Evidence Act.⁴

What materials or work product does legal professional privilege apply to in your jurisdiction?

Different materials are covered under legal advice privilege and litigation privilege.

Legal Advice Privilege

Legal advice privilege covers (1) confidential communications; (2) between a client and their lawyer (3) for the purpose of seeking legal advice.⁵

Under factor 1, information in the public domain, or which has been released to the opposing party (where there is one) is not considered confidential. For instance, a lawyer’s short hand notes which record communications in court are not confidential vis a vis the opposing party.⁶ “Communications” refers to any communications concerning legal advice over the matter for which the lawyer’s advice is sought. This means that so long as the communications relate directly to the lawyer’s performance of their professional duty as a legal advisor, the communications would be privileged.⁷

Under factor 2, the Singapore Courts have defined “client” narrowly. A client would not include a third party to whom legal advice is passed on to, except where the third party is acting as an agent of the original client. When an agent exercises their own discretion in seeking legal advice from a lawyer, such communications would not be protected because the agent no longer acts as an extension of the client.

Communications with third parties will also be protected by legal advice privilege if made for the dominant purpose of obtaining legal advice. In this regard, the Singapore Court of Appeal in Skandinaviska Enskilda Banken AB Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd⁸ has endorsed the Australian approach as set out in the case of Pratt Holdings Pty Ltd v Commissioner of Taxation.⁹ Commentators have suggested that the Court of Appeal has endorsed the dominant purpose test for obtaining legal advice as a “safeguard against an overly broad application of legal advice privilege”.¹⁰

Litigation Privilege

Litigation privilege applies to every communication, whether confidential or otherwise, made for the purpose of litigation. It also applies to communications from third parties, whether or not they were made as agent of the client.

Two other requirements must be fulfilled in order for litigation privilege to apply. First, there must have been a reasonable prospect of litigation. Second, the communications must be for the dominant purpose of litigation.

The Singapore courts undertake a fact sensitive inquiry to determine if there is a reasonable prospect of litigation, with the aim of determining if the legal context in the present case was one in which litigation was contemplated. There is no requirement that the chance of litigation must be higher than even.

Second, although the communications must be for the dominant purpose of litigation, litigation does not need to be the sole purpose. Communications would have been made for the dominant purpose of litigation where litigation is the foremost consideration in the mind of the communicating party.

Litigation privilege can apply to a third party who is neither the client, the client’s agent nor their lawyer. This includes expert witnesses. For example, draft reports by an accounting firm retained by a law firm have been held to be protected by litigation privilege.¹¹

What does legal professional privilege not cover in your jurisdiction?

Legal advice privilege does not cover certain types of communications.

First, it does not cover communications that are no longer confidential or that have lost their confidentiality.¹²

Second, a pre-existing unprivileged document cannot become privileged simply because a client hands it to their lawyer for safe-keeping or advice.

Finally, legal advice privilege does not cover information which is not given in a legal context. An example of this is where a lawyer acts as a corporate secretary.¹³

Litigation privilege protects communications rather than facts. This means that what a witness has seen and heard cannot be subject to litigation privilege and a litigant cannot prevent the witness from giving their evidence merely by obtaining a statement from them and then refusing to allow the witness to testify.¹⁴

How is legal professional privilege waived in your jurisdiction, who can waive it, and what are the consequences of waiver?

Privilege belongs to the client, therefore only the client can waive privilege. Sections 128(1) and 131(1) of the Evidence Act explicitly state that the advocate and solicitor may only disclose privileged material with the “express consent” of the client.

Legal professional privilege is generally waived in two ways.

First, the communication might lose its confidential nature and hence its privileged character. Confidentiality may be lost in two circumstances.

• First, if documents are filed in open court proceedings, they lose their quality of confidence because the proceedings are open to the public.
• Second, the entry of privileged documents into the public domain will remove their privilege. This means that the information in question must be so generally accessible that, in all circumstances, it cannot be regarded as confidential.¹⁵

Alternatively, the client or litigant might waive or be regarded as waived having waived privilege.

One example of this is where there is disclosure to an opposing party. Nevertheless, where disclosure was for a limited purpose,¹⁶ was unintentional or by mistake,¹⁷ and has not been admitted into evidence yet, the opposing party may be prevented from admitting the document or its contents into evidence. Disclosure to a third party, however, does not waive privilege, if done on the express condition that the information is to remain confidential.¹⁸

Implied Undertaking

Does your jurisdiction recognise or hold a concept of the implied undertaking?

Yes

What is the basis at law of the implied undertaking in your jurisdiction?

An implied undertaking arises from the principle established in the UK decision of Riddick v Thames Board Mills Ltd¹⁹ which has been accepted and applied by the Singapore courts.

How does the implied undertaking operate in your jurisdiction, including its scope (and any exceptions or limitations)?

Where a party to litigation is ordered to give discovery, the discovering party may not use the discovered documents, and the information obtained, for any purpose other than pursuing the action in respect of which discovery is obtained.

If that document was used in an open court hearing, the implied undertaking principle no longer applies. However, the disclosing party could apply to the court at the time is used in court for the implied undertaking to continue.²⁰

The implied undertaking does not apply to documents which are voluntarily disclosed in the course of legal proceedings.

How is someone released from the implied undertaking in your jurisdiction?

There are two ways for a person to be released from an implied undertaking in Singapore.

First, the implied undertaking no longer applies where the documents are used in open court (see above), unless the disclosing party successfully applies for the implied undertaking to continue.

Second, a party may be released from an implied undertaking upon application to the court. The party must demonstrate: (a) cogent and persuasive reasons warranting this; and (b) that the party giving discovery would not suffer any injustice or prejudice if the other party were to be released from its implied undertaking.²¹

How can the implied undertaking be breached in your jurisdiction and what are the consequences of such breach? What steps should you take if a breach comes to your attention?

Where a discovering party knowingly uses documents or information obtained from discovered documents for a purpose other than pursuing the action in respect of which discovery is obtained, there is a breach of the implied undertaking. An example of a situation where the implied undertaking is breached is the use of discovered documents in a separate, unrelated action without the permission of the court.

The breach of the implied undertaking can be punished as a contempt of court, which may result in imprisonment or a fine, or both. In addition, the court may grant an injunction to restrain a threatened or impending breach. Finally, the court may strike out as an abuse of process subsequent proceedings brought based on the documents used in breach of the undertaking.