legal professional privilege

1. INTRODUCTION

A. Legal privilege

Types of privilege under the EA:

Marital (s 124);
State affairs (s 125);
Communications made in official confidence to public officers (s 126);
Self-incrimination during interlocutory proceedings (s 134);
Legal Professional Privilege (s 128-131)
Provisions on LPP essentially unaltered since 1893, up until the inclusion of additional provisions
with the 2012 Amendments
Effect of privilege:
Witness who relies on privilege is merely excused from answering a question which seeks
privileged info privileged info does not have to be provided in court
However, witness is still expected to give evidence on other matters

B. Legal Professional Privilege

Basis of LPP:
o Raison detre of legal professional privilege is that full, free & fair communication
between persons and their legal advisors, w/o which the effective administration of
justice would not be possible, can only take place if such communications can be carried
out in confidence (Skandinaviska at [23])
o Client must be confident that he can freely communicate with his lawyer with confidence,
so that the lawyer, having been provided with all necessary information, may give
appropriate advice & provide effective representation, in the interests of the administration
of justice (Pinsler)
o Principal justification for protecting lawyer-client confidentiality with a special privilege is to
encourage candour on the part of the client, which in turn assist lawyers in providing
useful advice & effective legal representation (Roberts & Zuckerman, Criminal Evidence)
o Chinty says it presents a paradox in facilitating communication between client & solicitor,
it promotes the administration of justice through free, full, and frank disclosure so as to
get the best advice
However, when a claim for privilege succeeds, it hinders the administration of
justice, since relevant evidence may be excluded, and the truth-finding process
may suffer as a result
Types of LPP:
(1) Legal Advice Privilege (LAPri) s 128 is generally taken as providing for LAPri in SG

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 o Concerns the protection from disclosure of confidential communications between the client
& his lawyer, arising in a legal context in the course of their r/s
Rationale is that legal advice depends for its efficacy on the clients candid
disclosure of all pertinent facts, therefore privilege must exist for the purpose of
protecting the confidentiality of communications between client & lawyer
This therefore encourages candid communications between client & lawyer
essentially, to give good advice you need full story client needs to be sure
what he tells lawyer remains confidential
o Scope
As per the 2012 amendments, the incorporation of s 128A in addition to the pre-
existing s 128 is an extension to LAPri to include the r/s between an entity and its
legal counsel
In addition to s 128 (Advocate & solicitor), s 128A extends the scope of
LAPri to apply to legal counsel, defined in s 128A as read with s 3(7) to
include:
o (a) 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;
o (aa) any Deputy Attorney-General; or
o (b) a public officer in the Singapore Legal Service
(i) working in a ministry or department of the Government
or an Organ of State as legal adviser to that ministry or
department or Organ of State; or
(ii) seconded as legal adviser to any statutory body
established or constituted by or under a public Act for a
public function.
Exists at any time a client seeks legal advice from his solicitor whether or not
litigation is contemplated (Greenough v Gaskell), and retention is not necessary
(Minter v Priest, as well as S 2(1) of LPA a client is any person who retains or
employs, or is about to retain or employ)
The solicitor must be consulted qua legal adviser legal advisers can play
either executive or legal functions, and only communications made in
their capacity as legal advisers should be protected (ARX)
Communications must be confidential if the communications were
publicly available, then confidentiality would not subsist (ARX,
Skandinaviska this is in s 128(1) & s 128A(1) anyway)

(2) Litigation Privilege (LiPri) exists by virtue of the common law, since s 131 clearly envisages
LiPri, and s 2(2) would apply to confirm the applicability of LiPri at common law in the local context
(Skandinaviska citing Mariwu)
o Any document sought for the dominant purpose of litigation is protected from being
disclosed

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 Rationale recognises that a paramount feature of the adversary system is that
autonomy is granted to the parties to strategise & prepare their cases in private, in
the interest of optimal presentation at trial
LiPri specifically protects the efficacy of the litigation process by protecting
parties ability to prepare & develop their cases with the necessary degree of
confidentiality
Therefore also protects the info passing from a 3P and the client, or the
lawyer, for the purposes of pending or anticipated court proceedings
(Skandinaviska)
Overlaps w/ legal advice privilege in respect of communications between client &
lawyer concerning litigation Advice given by advocate & solicitor/legal advisor
in relation to court proceedings is both protected under legal advice & litigation
privilege
o Scope:
Threshold question: Was there a reasonable prospect of litigation at the time the
client sought legal advice? (Skandinaviska)
Was the contemplation & anticipation of litigation the dominant purpose for
which legal advice was sought and obtained? (Skandinaviska, citing Waugh)

ESSENTIALLY: LiPri and LAPri have different purposes and are governed by different rules but are
both concerned with the proper & effective representation of the client in the interests of the
administration of justice
SUMMARILY:
LAPri LiPri
Exists at any time a client seeks legal Only exists when litigation exists or is
advice from his solicitor, regardless of contemplated
whether litigation is contemplated
Applies only to confidential Applies to every communication whether
communications made for the purpose confidential or otherwise, as long as it is for
of selling legal advice not just any the purpose of litigation
communication to the lawyer o Therefore can include
Therefore applies to only communications from 3P (regardless
communications by client or by an of whether they are agents of the
agent employed to obtain legal client) CRITICAL DIFFERENCE
advice on behalf of the client would BETWEEN THE PRIVILEGES
stand in EXACTLY THE SAME BECAUSE THEY PLAY DIFFERENT
POSITION AS THE CLIENT (citing (CRITICAL) ROLES
Wheeler)
Concerned with protecting confidential Concerned with protecting info & materials
communications between lawyers & created & collected for the dominant
clients purpose of litigation
However, there is one area of overlap between the two forms of privilege: Legal advice is
frequently sought or given in connection with current & contemplated litigation, but can
also be sought for purposes that have nothing to do with litigation
o Therefore any advice that is sought or given in connection with litigation would fall
into both categories (Lord Scott in Three Rivers No. 6)

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C. Approach to & scope of LPP

Central dichotomy underlying the judicial approach with respect to LPP is between the [1]
Balancing Approach, and [2] Absolutist Approach

(1) BALANCING APPROACH

Court should adopt a broad balancing approach by recognizing that LPP is a balance between:
o Public interest in favour of protecting lawyer-client communications which facilitates the
lawyer giving effective advice, or strategizing and preparing his case, thereby promoting
the administration of justice
LPP protects a public interest in the efficient working of the legal system (which)
requires that people should be able to obtain professional legal advice on their
rights and liabilities and obligations (LAPri) (and) legal advice and assistance
in connection with the proper conduct of court proceedings (LiPri)
However, in practice candour cannot be expected if disclosure of the contents of
communications between client & lawyer may be compelled, to a clients prejudice
& contrary to his wishes
Thats why client has the right, or privileged to withhold disclosure of the contents
of client-lawyer communications
In the ordinary course, the client has an interest in asserting this right, in so far as
disclosure would or might prejudice him (Lord Nicholls, Re Derby at 510)
o c/f Public interest in the favour of disclosure of relevant evidence which ensures that all
relevant material is made available to the court. If a claim for privilege succeeds, relevant
evidence may be excluded, which consequently may hinder the truth-finding process
The other aspect of public interest is that all relevant material should be available
to the courts when deciding cases. Courts should not have to reach decisions in
ignorance of the contents of documents or other material which, if disclosed,
might well affect the outcome

(2) ABSOLUTIST APPROACH

The court should always uphold LPP, regardless of any competing interests privilege is a
substantive legal right that should not be dependent on other public interest considerations
o As per the majority view in Re Derby:
The drawback to the balancing approach is that once any exception to the
general rule is allowed, clients confidence is lost
Now solicitors therefore have to qualify to the client that his confidence may be
broken if in some future case the court holds that he no longer had any
recognizable interest in asserting his privilege, instead of being able to client that
anything which the client might say would never in any circumstances be revealed
w/o his consent undermines the purpose of privilege (Taylor CJ)
Balancing exercise not required because balance must always come down
in favour of upholding privilege unless its waived. This may work
hardship on 3Ps seeking to assert his innocence in some cases, but it is
overall better in the interests of justice (Lord Lloyd)

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 (3) SINGAPORE APPROACH
In Gelatissimo, court was opined that it was possible to reconcile Barclays and Re Derby by
restricting the balancing approach to cases falling under the statutorily enshrined fraud exception
balancing exercise should only be used in defining the outer limits of what constitutes fraud for
the purpose of lifting legal privilege. Since the House of Lords in Re Derby did not challenge the
validity of the fraud exception, Re Derby is technically not inconsistent with the Barclays case.
o However, that isnt a clear pronouncement on whether the court is in favour of either
approach, which is fair because neither party was arguing that issue was the scope of the
fraud exception and the HC did decide on the balancing approach to penumbra cases to
the fraud exception
Additionally, s 128-131 are not phrased as balancing test provides no room to balance the
interest of the person entitled to privilege with any countervailing interests
o Only stipulated exceptions are client consenting to disclosure, waiver of disclosure, and
fraud & crime exception

HOWEVER would argue that the absolutist approach is inappropriate in SG (Pinsler, New
Twists In Legal Professional Privilege: Communications For The Purpose Of Litigation And Between
The Lawyer And Client)
o Lord Taylor in re Derby based his judgment that LPP is more than a rule of evidence and is
a fundamental condition on which the administration of justice as a whole rests on his
classification of LPP as a privilege protected by the ECHR fundamental HR that comes
under the right to a free trial
o Not the case in SG various privileges recognised by the EA are formulated as ordinary
rules of evidence, and are undistinguished from other provisions
Additionally in SG, particular consideration should be given to the accused to
ensure he is able to adduce sufficient evidence to establish a defence, rebut a
presumption, or refute the prosecutions case on light of the Singapore legal
system which requires the accused in a variety of instances to carry BoP through the
rebuttal of presumptions, and the establishment of exceptions to liability on BoP
ECHR doesnt operate in SG, and the SG Constitution doesnt acknowledge lawyer-
client privilege as a fundamental right
However, privilege could arguably come under the constitutionally enshrined right
to a fair trial (Art 9(1)-(4)) and equality between parties (Art 12(1))

D. Scope of LPP

Under s 2(1), Parts I, II, and III apply to court proceedings (all judicial proceedings in or before
any court), but not to [interlocutory] affidavits LPP doesnt apply to interlocutory affidavits, (but
does apply to EIC affidavits, which is evidence at trial)
Pinsler however argues that interlocutory applications involving discovery of general & particular
documents made in the contemplation of use of such evidence at trial should be protected by
privilege
o Why? The Legal Profession (Professional Conduct) Rules provide that ethical rules of
conduct, including confidentiality in s 24, apply to the entire spectrum of lawyer-client
relationships, irrespective of circumstances

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 Lawyers duty of confidentiality has strict exceptions unless client consents to
disclosure, or disclosure is required by court order
o Policy reasons still remain in the interests of the administration of justice, candour and
disclosure is necessary for the legal advisor to provide the most effective advice or conduct
the most effective strategy, whether at trial or at the interlocutory stage
o The case of Yap Sing Lee supports the argument that while the EA governs privilege at trial,
privilege is a substantive legal right that can be claimed beyond the court room, and
common law principles can govern issues of privilege in a non-judicial setting

Yap Sing Lee v MCST

Facts
Case concerned an appeal against the finding of the Strata Titles Board that
certain sought by a subsidiary proprietor of an apartment from the MCST were
privileged
HC held that since proceedings before a Strata Titles Board were not judicial
in nature, the rules governing professional privilege in the EA does not apply,
as a consequence of s 2(1)

/held/
MCST was entitled to rely on CoLaw principles which establish legal advice
privilege as a substantive legal right
Therefore provisions in the EA apply to the use of evidence in a judicial
proceeding;
o C/f CoLaw right of privilege which is not limited to the nature of the
proceedings
o This was based on CoAs citation of English & Australian authorities in
Skandinaviska, although Pinsler argues that in Skandinaviska, foreign
law was cited to explain the CoLaw principle for certain aspects of
LAPri and how to interpret the EA, and not as an endorsement of the
CoLaw position that LAPri is a substantive legal right that is
generally enforceable
However HC used the fact that LAPri has evolved from an evidence rule to a
general legal right in leading jurisdictions to argue that LAPris enforceability
shouldnt depend on whether an existing or subsequent dispute does go
to the courts since the purpose of LAPri is encouraging candid disclosure on
info in the interests of the administration if justice

2. LEGAL ADVICE PRIVILEGE

A. Provisions in the EA

s 128(1) Professional Communications

o 128.(1) No advocate or solicitor 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

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 purpose of his employment as such advocate or solicitor 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.
o ExplanationThe obligation stated in this section continues after the employment has
ceased.
Content of s 128(1)
o S 128 only applies to the advocate or solicitor not to the client
o Obligations under s 128 apply to events occurring in the course and for the purpose of
such employment
o Apply to communications made to A&S by or on behalf of the client
Privilege protects communications between:-
Lawyer & client;
Layer & clients representative acting as a mere conduit when
communicating with the lawyer;
Lawyer & clients representative when the communication is made for the
dominant purpose of giving legal advice.
o S 128 contains 3 directions:
[1] Advocate & solicitor must not disclose any communication made to him in the
course and for the purpose of his employment as such A&S by or on behalf of
his client;
[2] A&S not permitted 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;
[3] A&S prohibited from disclosing any advice given by him to his client in the
course & for the purpose of such employment
o [1] & [3] are concerned with communications, but [2] seems to also cover content &
condition of a document which the lawyer comes across in the course of the retainer,
including pre-existing documents & documents which do not involve the client
However, such a reading would be inconsistent with Skandinaviska, which held that
LAPri protects confidential communications only [2] should therefore only be
read in the context of communications between the lawyer & client, and not
random shit the lawyer comes across
o Privilege operates beyond the termination
Clear in the Explanation of s 128, as well as in the common law precept that once
privileged, always privileged (Calcraft v Guesti)
o Requirement of confidentiality
Unlike s 131, s 128(1) does not expressly state that it only protects confidential
communication
However, Skandinaviska at [35] held that while s 128 itself does not have an
explicit reference to confidentiality as a necessary quality in communication
to the lawyer for communication to privileged, it is implied that the nature
of business involved in obtaining legal advice has the element of
confidentiality

S 128A(1) Communications with legal counsel in entity

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 o 128A.(1) A legal counsel in an entity shall not at any time be permitted, except with the
entitys express consent, to disclose any communication made to him in the course and for
the purpose of his employment as such legal counsel, 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 employment as such legal counsel, or to disclose any legal advice given by him to the
entity, or to any officer or employee of the entity, in the course and for the purpose of such
employment.
Content of s 128A(1)
The provision essentially applies privilege currently accorded in s 128(1) to communications
between entities & their legal counsel
o LAPri accorded under s 128 is therefore extended to the context of a company and a legal
adviser
Scope of s 128 & s 128A is expended by s 129 Sections 128 and 128A to apply to interpreters,
etc.
o 129. Sections 128 and 128A shall apply to interpreters and other persons who work under
the supervision of legal professional advisers.
o Therefore LAPri is preserved by ensuring that it is not compromised by persons who have
access to privileged communications by reason of their working r/s with the lawyer or
legal counsel
Extends the obligation imposed by s 128 & 128A on the solicitor to interpreters,
as well as employees and other categories of staff who work under the supervision
of legal professional advisers e.g. secretaties, paralegals & trainees.

B. Scope of Privileged Communication

Relevant legal context test (Balabel, as endorsed by Skandinaviska at [47])

o At [47]: CoA acknowledged that especially considering the complexity of modern
commercial and investment ventures, clients, lawyers are expected to provide not just legal
advice, but also multi-disciplinary advice from different professions in many of the
problems they face or encounter.
o Lawyers therefore can be expected to give advice (extending) to other fields of learning
which go beyond what was traditionally legal advice
The test, as per Taylor LJ is whether the communication or other document was
made confidentially for the purposes of legal advice. Those purposes have to be
construed broadly to include advice of what should be prudently & sensibly done
in the relevant legal context
Acknowledged that there is a continuum of communication & meetings between
the solicitor & client, and even communications which do not specifically seek &
convey legal advice may be privileged when they are related directly to the
solicitors performance of his professional duty as a legal advisor (Skandinaviska
at [48], citing Three Rivers (No. 6))

(1) ADDITIONAL COMMON LAW LIMITS

The requirement that communication must be in the course of the A&S employment means that:

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 o Privilege doesnt extend to situations in which A&S is being consulted merely as a friend
must be qua lawyer (Smith v Daniell, ARX)
o Litigation need not be contemplated at the time of communication (Greenough v Gaskell
per Lord Brougham)
o Lawyer need not be retained (Minter v Priest as well as S 2(1) of LPA a client is any person
who retains or employs, or is about to retain or employ)

C. Privileged Info may include factual info from 3P source

While s 128 only privileges communications made by or on behalf of (the) client, privilege also
extends to communication that is not privileged in its own right, but is so embedded or has
become such an integral part of the entire report that it cannot be redacted (Skandinaviska at [98])
In such a situation, the non-privileged communication (forms) the backdrop of the legal advice
(Skandinaviska, citing In re Sarah C Getty Trust at [99]) and parties should be slow to claim privilege
over the entire report since the non-privileged parts do not play an important role in the context
of legal analysis
o C/f situations where the document deals with a single subject-matter and can be said to
have been brought into existence either for the purpose of giving or getting legal
advice or for the dominant purpose of gathering evidence can claim privilege for the
entire document as well
o Or if it doesnt satisfy the single subject matter test cannot claim privilege over whole
document, but if part of the document refers to privileged matters, the privileged part may
be blanked out
o Or part of the document is privileged and the remaining is unprivileged and the
unprivileged part is separable from & not integral to the privileged part privileged
part can be redacted, and the rest of the document is revealed to the opposing party
This was applied on the facts of Skandinaviska:
o CoA found that the privileged material communicated was inseparably embedded in the
reports, so much that redaction and separation of the drafts to exclude passages
containing privileged info would not be practical
o Therefore the PWC Draft Reports (non-privilege) were in all likelihood so intertwined with
the legal advice & assistance given by D&N to PWC (privileged) that these reports
became part of the privileged solicitor-client communications (at [98])

D. Clients Info Need Not Actually be Communicated

Should information that a client intended to communicate to the lawyer, but failed to due to a
technical error (e.g. I sent it to the wrong email address) still be privileged?
o The case of Three Rivers (No. 5) concerned a set of documents prepared for the purpose of
legal advice intended to be communicated to the lawyers, but were actually never received
Tomlinson J held that the documents were still protected by LiPri if the
principle is that a person should not be in anyway fettered in communicating with
his solicitor, and must not be fettered in preparing the documents to be
communicated to his solicitor it must be axiomatic that it is the confidentiality of
the whole process of communication which requires protection, and not just
the documents which can be recognised as comprising the actual or final
communication

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 o Pinsler argues that this is because the objective of LAPri isnt completely fulfilled if its
operation depends on the actual receipt of the clients communication by the legal adviser
clients ability to prepare for consultation with his lawyer is compromised if he is not
assured that LAPri protects all info intended to be communicated
Additionally, the communication is confidential the moment it is communicated
purpose of LAPri is compromised if the privilege is withheld from confidential
communication simply because the communication was not received by the other
party
o HOWEVER
A plain reading of both s 128(1) & 131 indicate that communication must actually
be received before it is protected by privilege
Under s 128, the communication must be made to the solicitor;
Under s 131, privilege protects the communication which has taken
place
This indicates that LAPri only protects actual communication
Pinsler also argues that since LAPri confers a very special advantage by overriding
the public interest of ensuring the courts access to all the relevant evidence,
the scope should be limited as per the EA, and should not be extended as a
concession to clients failure to ensure proper communication of information
Also may lead to abuse client can just claim that he had intended to give
information to the lawyer for the purpose of legal advice, when he did not
actually have that intention

E. By or on behalf of the client

(1) WHEELER CONDUIT TEST VS. PRATT DOMINANT PURPOSE TEST

S 128(1) explicitly protects communications made from a client, or on behalf of a client, to his
lawyer
Narrow traditional UK position:
o The words on behalf of in s 128 mean that only a communication made through the
agent as a conduit of the client can be protected under LAPri (Wheeler v Le Marchant)
If the 3rd party representative is employed as an agent on the part of the client to
obtain legal advice of the solicitor, he stands in exactly the same position as the
client as regards to protection, and his communications with the solicitor stand in
the same position as his principals communication PROTECTED
Broader Australian position
o Information obtained from 3P can be privileged if the communication was obtained for the
dominant purpose of giving legal advice (Pratt Holdings)
Inquiry should focus on what the nature and the function of the document rather
than the nature of the 3Ps relationship with the client if the function of the
document was to enable the client to make the necessary communications to
obtain the legal advice they need, there is no reason to withhold privilege from
3Ps documentary communication
Finn J at [41]-[43] (cited favourably by Skandinaviska at [57]): Especially once we
take into account the fact that modern legal advice is often sought for complex and
technical matters, and the party seeking to obtain that advice may not have the

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 aptitude, knowledge, skill, expertise or resources to make adequately,
appropriately, or at all such communication to its legal advisor as necessary to
obtain the advice required, and demanding that a party must make his own
communications or forego his privilege, thereby denying his ability to use a 3P to
remedy his own inadequacy, disadvantages the party relative to another party who
can make the desired communication on his own knowledge & resources
E.g. Under the Wheeler model, if APBS or APBL had their own accounting
department, they wouldnt need PWC to communicate with D&N, and the
very same information would be privileged
Significantly, it undercuts the privilege itself if the law incentivizes parties not to
utilize services of 3P since it doesnt facilitate
Access to effective legal advice;
Effective communication with legal advisers for the purpose of obtaining
legal advice

(2) SG POSITION
The broader Australian approach will most likely be accepted in Singapore law if this issue arises,
since the CoA has viewed the approach very favourably in Skandinaviska
o Especially for cases for cases of large commercial frauds where the victims need expert
advice not only to protect themselves from future frauds but also to determine the
rights & liabilities in connection with the fraud (at [62])
Arguably, while Skandinaviska was ultimately decided on the grounds of: -
LiPri information provided by both D&N and PWC were protected by LiPri
since the draft reports were made for the dominant purpose of litigation;
Redaction Principle Info provided by PWC, even if non-privileged
material, was material that formed the backdrop against which legal advice
was based on, such that they were so inextricably intertwined with the
report that they were also protected by LAPri
o However, CoA did discuss Pratt at length, and in particular seemed to take into account the
fact that modern business may require the client to look for multidisciplinary advice from
different professions, and a broader approach would arguably be more practical and
more in line with the realities of legal practice
o Post-Skandinaviska, the position seems to be that the Balabel relevant legal context test
still applies for LAPri in general, while the Pratt dominant purpose test (as opposed to the
Wheeler conduit test) should be applied specifically in situations of 3P communication with
lawyers.
This is confirmed by the SAL Law Reform Committee on Legal Professional
Privilege, which argued that the rule of law rationale as it applies to direct
communications between lawyer & client should not be weakened by merely
requiring that they have to be created for the dominant purpose of seeking &
obtaining legal advice
The counterweight to too liberal an extension of LAPri in relation to 3P is the
requirement that the communication concerned must be for the dominant purpose
of giving legal advice (at [47])

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 Dominant purpose test (a) what was the function of the expert advice and
(b) was it really required to instruct the legal advisers fully (Stone J in Pratt,
cited by Skandinaviska at [60])
E.g. in the case where the principal conducts himself in such a manner that
indicates that the intended use of the 3Ps document was to advise &
inform the principal on the subject matter, as opposed to being
communicated to the legal adviser as the principals communication,
then the less the principal acts as a conduit for the information and the
more he filters, adapts, or exercises independent judgment in relation to
what of the document is to be communicated to the legal advisor, the less
likely it is that the document will be found to be privileged more
likely that the intended use of the document is to advise & inform the
principal in making his own communication to the legal advisor

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 (Australia

Facts Client wants to restructure coy, hires lawyer. Lawyer instructs client to appoint an
accountant to provide lawyer with info
Can we say that the accountant is acting on behalf of the client in
communicating with the lawyer, therefore protecting accountants info to the
lawyer under LAPri?
/held/ English position is that you must be an agent or a conduit, or else no privilege
boi
o Even though if the report was prepared for an impending case then LiPri
would apply
o Or if you had your own accounting department you could argue they
acted as your conduit
Problem is that the client cant give the lawyer the info he needs, he requires the
services of an accountant to get that info and numbers, and its clearly confidential
AND helpful in allowing lawyer to advice on how best to restructure coy
Court said that theres no reason someone w/o the knowledge or the reasons
should be disadvantaged in this sense test is whether the dominant purpose
of asking 3P was to enable client to make communication necessary to get the
legal advice it required

Skandinaviska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2006] 3 SLR(R)
441; [2007] 2 SLR(R) 367.

Facts X was finance manager of APBS

o Used name of APBS to obtain credit facilities & loans for 4 banks
o Convicted of cheating
APBL (also the initials of the judge!), the parent coy of APBS, appointed a special
committee made of D&N & PWC to investigate the matter
o PWC gives essential info to D&N on behalf of APBS
AT HC

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 o Court found that PWC, although not a conduit, was acting on behalf of
APBS
o Even though it acted on own info, it wasnt an agent, so communication
wasnt by and on behalf of the client
CoA found this holding inconsistent with English authority that 3P must be an
agent
/held/ S 128 & 131
S 128: ONLY APPLIES TO A&S, AND NOT TO THE CLIENT
o A&S may not:
(1) Disclose any communication made to him by or on behalf of his
client; or
(2) State the contents or condition of any document of which he
has become acquainted; or
(3) Disclose any advice given by him to his client
o If all of these events occurred in the course & for the purpose of his
employment as such A&S)
o No explicit reference to confidentiality as a necessary quality in
communication to the lawyer, but it is implied that the nature of business
involved in obtaining legal advice have the element of confidentiality
S 131: Complements s 128 by giving the full effect of legal advice privilege
APPLIES TO CLIENT, protects him from having to disclose to any other party any
legal advice which he has obtained from his legal adviser
o Expressed to operate in the broader context of court proceedings, where
the client may be called as a witness and may be compelled to disclose
any communication the court deems necessary
o This also extends the area of LAPri to the domain of LiPri s 131 refers
to a legal professional adviser, who need not necessarily be an A&S

LAPRI
Cited Three Rivers (No 5) its ruling does not lay down a general principle that all
communications between a coy & its legal advisers must be made by a specially
appointed committee, or that no communication made by an employee to the
coys legal adviser is privileged
o CoA held that the BIU, which was established to deal with inquiries and to
seek & receive Freshfields advice, is the client, rather than any single
officer, no matter how eminent he or she may be only BIU was
authorised to communicate with the Bank of Englands lawyers
o Therefore any other communication with the solicitors was not authorised
and is not protected by legal advice privilege
Issue is that when the client is a coy, a coy can only act through its employees, so
any communications made by employees authorised to do so is a
communication ON BEHALF OF HIS CLIENT

LAPri & LiPri

Several operational differences:
LAPri LiPri

13
 Exists at any time a client seeks Only exists when litigation exists
legal advice from his solicitor, or is contemplated
regardless of whether litigation
is contemplated
Applies only to confidential Applies to every communication
communications made for the whether confidential or
purpose of selling legal advice otherwise, as long as it is for the
not just any communication purpose of litigation
to the lawyer Therefore can include
Therefore applies to only communications from 3P
communications by client or by (regardless of whether they are
an agent employed to obtain agents of the client) CRITICAL
legal advice on behalf of the DIFFERENCE BETWEEN THE
client would stand in PRIVILEGES BECAUSE THEY
EXACTLY THE SAME POSITION PLAY DIFFERENT (CRITICAL)
AS THE CLIENT (citing Wheeler) ROLES
Concerned with protecting Concerned with protecting info &
confidential communications materials created & collected for
between lawyers & clients the dominant purpose of
litigation
However, there is one area of overlap between the two forms of privilege:
Legal advice is frequently sought or given in connection with current &
contemplated litigation, but can also be sought for purposes that have
nothing to do with litigation
Therefore any advice that is sought or given in connection with litigation
would fall into both categories (Lord Scott in Three Rivers No. 6)

Impacts on Modern Developments of LAPri

R/s with lawyers has changed business is more complex nowadays, so clients
need not just legal advice, but also multi-disciplinary advice from different
professions in many of the problems they face or encounter (at [47]). Lawyers may
also be asked to give advice (extending) to other fields of learning which go
beyond what was traditionally legal advice
o Reflected in Balabel Taylor LJ opened that there is a continuum of
communication & meetings between lawyer & client, and legal advice isnt
confined to one end of the continuum i.e. just telling the client the law. It
also includes advice as to what should prudently & sensibly be done in
the relevant legal context
This complexity can be seen on the facts of the case APB & APBS needed not
only the advice of accountants, but also the advice of lawyers to determine the
nature of the legal claims which would inevitably be made
o Resp now claiming legal advice privilege not just in context of its
communications with solicitors, but also in the context of
communications rendered to it as a result of joint efforts of solicitors &
accountants in investigating massive fraud by its financial controller
o So are PWC draft reports protected by LAPri?

14
 Australian approach Pratt Holdings
o Broader & more flexible approach court held that the distinction
between communications via agents and communications via 3Ps was
an apparently arbitrary one
If party had an appropriately qualified accounting staff which
prepared the report for the lawyers report protected by privilege
If they directed PWC to send report to the lawyers directly
protected privilege (agency)
But in this case, where the report went from accountant party
lawyer no privilege
o Starting point should be what is the intended use of the document,
which accounted for it being brought into existence, with focus on the
purpose of the person who created the document
o Whats important should not be the nature of the 3Ps r/s with the party,
but THE NATURE OF THE FUNCTION IT PERFORMED FOR THAT
PARTY. If the function was to enable the principal to make the
communication necessary to obtain the legal advice it required no
reason to withhold privilege from 3Ps documentary communication
Esp taking into account that advice today is sought for complex &
technical matters, the party seeking to obtain legal advice may not
have the aptitude, knowledge, skill, expertise, or resources to
make adequately, appropriately or at all all such communication
to its legal adviser as necessary to obtain the advice required
To deny a party the ability to use a 3P to remedy his own
inadequacy unless he is prepared to forego privilege is a
disadvantage, relative to someone else who can make this
desired communication on his own knowledge & resources
o It the undercuts the privilege itself if the law incentivizes parties not to
utilize services of 3P since it doesnt facilitate
Access to effective legal advice;
Effective communication with legal advisers for the purpose of
obtaining legal advice
o However, although CoA favourably considered Pratt, neither party
actually cited it, so it couldnt be applied
Essentially, modern business environment requires new rules
dominant purpose test (same as LiPri) the dominant purpose is
to get legal advice, LAPri applies
o However, at [62], CoA opined that Pratt is suited to large commercial
frauds would it apply to other types of cases?
Does it mean that its especially applicable to large commercial
frauds, but should apply to all cases?
Still endorsed at [65] dominant purpose test with regard to 3P
communications as an appropriate safeguard against an overly
broad appn of LAPri
Pinsler says there seems to be a different test for normal
lawyer-client direct communication situation (legal context

15
 test), and the Pratt situation (dominant purpose of legal advice
test)
o Also authority for the fact that if communication includes info that forms
the backdrop to mount the legal advice as to how Resp should mount the
best defence against Apps claims (e.g. PWC reports containing parts that
were just mere accounting info) still privileged

o This approach would not lead to an uncontrollable extension of privilege

Client still has to prove the dominant purpose requirement,
which can present difficulty
E.g. advice as to commercially advantageous ways to
structure a transaction is unlikely to attract privilege since
the dominant purpose is independent of the need for
legal advice
o Looking at the facts if the case (a) what was the function of the expert
advice and (b) was it really required to instruct the legal advisers fully
Court cited with approval Pratt Holdings approach of substance rather form
o Esp for large commercial frauds where victims need expert evidence just
to determine rights & liabilities connected with the fraud
o In this case, Resp was seeking BOTH LEGAL & ACCOUNTING ADVICE
when appointing PWC & D&N to report on the problem issue is which
is the dominant purpose?

LiPri
LiPri exists by virtue of CoLaw, and since s 131 clearly envisages LiPri, s 2(2) would
apply to confirm the applicability of LiPri at CoLaw in the local context
o Cited Mariwu at [67]: there is no inconsistency between LiPri in CoLaw & s
128 and 131 read together
Elements
o [1] Threshold question was litigation contemplated?
Question is at the time client sought legal advice did he have THE
PROSPECT OF LITIGATION in mind?
Generally accepted that a reasonable prospect of litigation is
sufficient to warrant privilege no requirement that the chance of
litigation must be higher than 50%
o [2] Purpose for which legal advice had been sought?
If its just in anticipation or contemplation of legal proceedings,
then no problem
However, in cases where there is more than one purpose of
seeking legal advice, must prove that the dominant purpose for
which legal advice was sought & obtained was the anticipation
or contemplation of litigation (cited Waugh at [75], previously
endorsed locally in Brinks)
Rule App
Dominant purpose of the reports was in aid of litigation
o Facts of the case support the finding that both legal & accounting advice

16
 was foremost in minds of the directors of the respondent or else no
point in appointing D&N to undertake jointly with PWC
o Inquiry not just into quantifying the financial impact of all the unauthorised
transaction, but also their nature & the circumstances in which they
occurred
o In fact, given the huge unauthorised loans that Respondent would be
called upon to repay, its just unarguable that Respondent would not have
concluded that litigation was bound to occur by the time it appointed
PWC & D&N to investigate the unauthorised loans
Depends on the factual matrix of the case (at [95])
o If a report is made as a matter of routine and not with reference to liti at all
obviously not privileged;
o However, the fact that a report may lead to factual findings is not terminal
to the partys case since what is legally material is the purpose for which
the factual findings were to be used

(3) EVALUATING PRATT

Skandinaviska recognised that the evolution of lawyering due to the changing nature & scope of
legal advice in the modern context called for a more flexible approach.
o Considering the increased complexity in corporate structures and agreements, legal
knowledge and skills required by lawyers is significantly more complex
o Nature of the advice that lawyers are asked to give may extend to other fields of learning
and other professions
It would be unfair to demand that a party make his own communications or forego his privilege,
thereby denying his ability to use a 3P to remedy his own inadequacy, and disadvantaging the party
relative to another party who can make the desired communication on his own knowledge &
resources (Pratt)
This ultimately undercuts LAPri itself because this would not facilitate access to effective
communication with legal advisors or obtaining legal advice
Finally, the risk of abuse is exaggerated, and curbed by the dominant purpose test (Skandinaviska)
o The counterweight to too liberal an extension of doctrine vs--vs 3Ps is the requirement
that the communication concerned to be for the dominant purpose of giving legal advice

Arguments against the Pratt approach in SG

Pratt approach is inconsistent with the wording of s 128
o Pinsler argues that the wording of s 128 clearly does not cover the situation where 3P
provides separate information in a capacity independent of the client such as Pratt or
Skandinaviska
o By and on behalf of client clearly accord with the traditional model in Wheeler
Pratt is inconsistent with the candour rationale
o Pinsler argues that even if information from 3Ps may assist clients in obtaining more
effective legal advice, that does not necessarily it deserves the same protection as solicitor-
client communications
o LAPri exists because the law acknowledges that the need to encourage candid
communications between the lawyer & his legal advisor may outweigh the competing

17
 public interest of ensuring the court has available all relevant evidence, but the same
cannot be said in favour of 3P-lawyer communications
3P does not have to be encouraged to be candid in its provisions of this
information since 3P is normally paid for this purpose
The case of protection of 3P communications is therefore relatively weaker than
that for the clients direct communication to his lawyer, which, but for the
privilege, would never have been made
In fact, confidentiality has already been eroded to some extent by 3Ps
involvement
o As per Chin Teck Yung, Extending the Scope of LAPri, the candour rationale does not
work in corporate environments in the sense that corporations work in a regulated regime,
where it isnt privilege that encourages full disclosure, but statutory obligations & even
possibly individual risks of liability & penalty imposed on company staff
Corporate clients will be candid with their legal advisors regardless of privilege,
because the potential costs of withholding info is far more likely greater than any
disadvantage flowing from the risk that communicated will be later divulged
Practical difficulties with application
Difficult to really ascertain what the dominant purpose of a report is, especially if its prepared by
several employees & independent contractors
o May involve an element of artificiality in defining what dominant is CoA in
Skandinaviska conceded that the exercise may be difficult, but not more so than many
questions that come before courts (citing Pratt at [60])
o Is it really less artificial than distinguishing agents as conduits or those who provide
information
Difficult to ascertain anyones state of mind
o Your question really is whether the client has uppermost in his mind the seeking of legal
advice when he made the communication or caused it to be made, which isnt an easy fact
to ascertain even in the best of circumstances
Encourages corporate misconduct
Increases zones of secrecy in opposition of open discovery rules may allows lawyers to be roped
in to creating facades to achieve secrecy, and engineering circumstances to make it appear as
though the dominant purpose of a communication was legal advice
o Creates a potential for pulling a blanket of privilege over an ever-increasing range of
internal records & memoranda

(4) ALTERNATIVES TO PRATT

Chinty
Suggests a but-for test coupled with a finding that the lawyer acted in a relevant legal context
(Balabel) Pf must show that but for the purpose of obtaining legal advice, the document would
not have been produced whether by client himself or by 3P on the clients authorisation
o But for more certain than dominant purpose
o Courts also could use their powers of inspection under s 164, or their powers of redaction
(Skandinaviska) when claims of privilege appear overblown or exaggerated.
HHL
Suggests a more principled approach by narrowing advice privilege coupled with a larger role for
the law of confidentiality

18
 o Candour rationale should be abandoned
Arguing that encouraging candour allows lawyer to represent the client more
effectively doesnt explain why we dont extend professional privilege to doctors or
priests
Secondly and more importantly, just because the client is more candid doesnt
actually advance the courts search for truth, right? Because even if the client
is candid and reveals everything to his lawyer, its not like the lawyer can tell the
court COURT STILL HAS THE SAME AMOUNT OF EVIDENCE
Also misguided to think that lawyers can stop their clients from embarking on
wrongful acts that have been communicated the most the lawyer can do is
withdraw his services, doesnt really stop anyone
o HHL argues instead that LPP exists because the administration of justice loses its
integrity by forcing the lawyer to speak or act against the client
Client has a right to legal representation because the legal system was responsible
for drawing him into the legal process, and drawing him involuntarily into a state
of dependency on legal representation
And since the legal system therefore must give him a right to representation
compelling a lawyer to give advice against his client is compelling him to betray his
role as representative
This is why privilege doesnt apply to doctors or priests they were never given
the role as the clients legal representative, and theres no loss of integrity on the
legal process by compelling them to disclose against their clients (Patients?
Parishioners?) Any professional communications
o HHL thinks LLP should be limited therefore to LiPri (connected to being legal
representative), and LAPri should fall under the less rigid realm of confidentiality law.

F. Clients Perspective s 131 of the EA

(1) ROLE OF S 131

S 131 Confidential communications with legal advisers
131.(1) No one shall be compelled to disclose to the court any confidential communication which
has taken place between him and his legal professional adviser unless he offers himself as a witness,
in which case he may be compelled to disclose any such communications as may appear to the
court necessary to be known in order to explain any evidence which he has given, but no others.
(2) In subsection (1) and section 129, legal professional adviser means
o (a) an advocate or solicitor; or
o (b) in the case of any communication which has taken place between any officer or
employee of an entity and a legal counsel employed, or deemed under section 128A(4) or
(5) to be employed, by the entity in the course and for the purpose of seeking his legal
advice as such legal counsel, that legal counsel.
Effect of s 131
o S 131 essentially mirrors s 128
LAPri protects the client from having to disclose to any party any legal advice which
he has obtained from his legal adviser

19
 LAPri is a right that the client can assert or waive, such that the client cannot be
compelled to disclose communications
o Therefore s 131 read together with s 128 give full effect to LAPri (Skandinaviska at [33])

(2) APPLICABILITY OF PRIVILEGE TO AN ADVISER WHO IS NOT AN ADVOCATE OR SOLICITOR

Previous statutory position
A&S in s 128(1) v. Legal professional adviser in s 131
o If read literally, this means that client doesnt have to disclose anything even if he was just a
legal professional adviser, but a legal professional advisor can just be compelled to reveal
things because hes not an A&S client loses out
o Position is that privilege has been extended to all legal advisers s 128A applies s 128(1)
to legal counsel of entities
S 128A Communications with legal counsel in entity
o 128A.(1) A legal counsel in an entity shall not at any time be permitted, except with the
entitys express consent, to disclose any communication made to him in the course and for
the purpose of his employment as such legal counsel, 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 employment as such legal counsel, or to disclose any legal advice given by him to the
entity, or to any officer or employee of the entity, in the course and for the purpose of such
employment.
S 131(2) which defines legal professional adviser includes both A&S (defined in s 3(6)) and
legal counsel of an entity (defined in s 3(7))

Are foreign lawyers covered by privilege as well?

Common law rules apply to foreign lawyers insofar as they are not inconsistent with provisions of
the EA the common law position, which extends privilege to communications between the client
and the foreign legal adviser applies in SG (CIFG Special Assets)

CIFG Special Assets Capital I Ltd v Polimet Pte Ltd [2015] SGHC 325

/held/ [1] Which law applies to govern the issue of legal professional privilege as between
parties & Mr Yip, bearing in mind he is a Malaysian lawyer, and most of the
communications took place in Msia
o Starting point is whether legal professional privilege is a matter of
procedure or substance
Procedural matters are always governed by the law of the forum (SG);
o However, the test of whether something is substance or procedure is to
distinguish the existence of a right (substantive) from the enforcement of a
right (procedural)
This is the traditional broader approach as cited in Star City ask
whether the rule in question is one that affects the existence of the
right or its enforcement (at [40])
Considering foreign authorities, it suggests that legal professional
privilege is a matter to be addressed by the law of the forum (at [56])
Citing Besanko J in Stewart while the issue of privilege is linked to

20
 the contract between a lawyer & his client, it inevitably is dictated by
and subject to, in the statute or designated legislation based on
considerations relevant to the administration of justice turns on
public policy considerations that find expression in the law of the
forum
[2] SG Rules on legal professional privilege
o Legal professional privilege is statutorily embodied in s 128 & 131 of the
EA provisions cover LAPri and an element of LIPri (Skandinaviska)
Apply to communications between clients and A&S of the Supreme
Court of SG, or a legal counsel as defined by s 3(7)
However, this doesnt cover foreign lawyers communications with
foreign lawyers therefore fall outside the ambit of statutory privilege
BUT EA ONLY EXHAUSTIVE TO THE EXTENT THAT ALL RULES
NOT SAVED BY THE STATUTE WHICH ARE INCONSISTENT WITH
THE EA ARE INAPPLICABLE (Phyllis Tan)
o So even though LPP is codified, CoLaw rules of privilege still apply to foreign
lawyers insofar as they are not inconsistent with provisions of the EA
o Even though one of the 2012 amendments concerned extending the EA so
that LPP covers communications with in-house counsel for the purposes of
obtaining legal advice, there was no intention on Parliaments part to affect
the CoLaw position regarding LPP between foreign lawyers & local clients
Accepted even during the debates that law of evidence comprised of
EA and CoLaw rules, at least where the latter were not
inconsistent with statutory provisions (at [60])
Parliaments extension did not mean they intended to make
affirmative that communications with foreign lawyers was not
protected
o Citing IBM v Phoenix - Correct approach is to look at the substance & reality
of the documents, the circumstance in which it came into existence, and also
its purpose
o Citing Kennedy v Wallace members of the community may need to seek the
assistance of foreign lawyers considering the multiplicity & complexity of the
demands of the modern state on its citizens, the complexity of modern
commercial life, and increasing inter-relationships of legal systems
The purpose & rationale of privilege is enabling persons in a
civilized complex modern society to be able to conduct their affairs
with the assistance of legal advice. Refusing to recognise foreign
lawyers advice privilege undermines the rationale of the privilege,
Finally, part of the practical guarantee of the fundamental HR and
the practical worth of the fundamental CoLaw privilege is the right
to seek advice from a lawyer as to ones rights & privilege in this
complex environment
o Court therefore accepted that the CoLaw position which extends privilege to
communications between client & foreign legal advisor applies in SG

21
G. Exceptions to Privilege

Exceptions to Privilege consist of:

o Express Consent (s 128(1), s 128A(1))
o Waiver (s 130, s 131)
o Illegal Purpose (s 128(2)(a), s 128A(2)(a))
o Crime or fraud (s 128(2)(b), s 128A(2)(b))
Additional exceptions for in-house counsels:
o Any communication made to the legal counsel not for the purpose of seeking his legal
advice S 128A(2)(c);
o Any document which the legal counsel was acquainted with otherwise than in the course
of and for the purpose of seeking his legal advice s 128A(2)(d)
Rationale this ensures that LAPri is restricted to communications directly
concerned with legal advice, and is a necessary emphasis because a legal counsel
is a salaried employee working for the entity, and would have communications with
the entity not directly related to legal advice
Could this be a problematic provision would this apply instead of Balabel? Or
are they the same thing?

(1) EXPRESS CONSENT S 128(1) & S 128A(1)

Professional communications
128.(1) No advocate or solicitor 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 or solicitor 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.

Communications with legal counsel in entity

128A.(1) A legal counsel in an entity shall not at any time be permitted, except with the entitys
express consent, to disclose any communication made to him in the course and for the purpose of
his employment as such legal counsel, 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 employment as such
legal counsel, or to disclose any legal advice given by him to the entity, or to any officer or
employee of the entity, in the course and for the purpose of such employment.

Since the provision is silent on the form of consent, Pinsler argues that consent may be expressed in
whatever manner the client chooses
o However, if several parties jointly retain a lawyer, privilege can only be waived if all the
parties agree to do so (Gelatissimo)
o Difference is that you never intentionally waived privilege but have you lost it in any way?

(2) IMPLIED WAIVER S 130 & S 131(1)

Privilege not waived by volunteering evidence

22
 130.(1) If any party to a suit gives evidence therein at his own instance or otherwise, he shall
NOT be deemed to have consented thereby to such disclosure as is mentioned in section 128 or
128A.
(2) If any party to a suit or proceeding calls any advocate or solicitor as a witness, that party shall be
deemed to have consented to such disclosure as is mentioned in section 128 only if that party
questions the advocate or solicitor on matters which but for the question the advocate or solicitor
would not be at liberty to disclose.
(3) If any party to a suit or proceeding calls any legal counsel in an entity as a witness, that party
shall be deemed to have consented to such disclosure as is mentioned in section 128A only if
that party questions the legal counsel on matters which but for the question the legal counsel
would not be at liberty to disclose.

Confidential communications with legal advisers

131.(1) No one shall be compelled to disclose to the court any confidential communication which
has taken place between him and his legal professional adviser unless he offers himself as a
witness, in which case he may be compelled to disclose any such communications as may appear
to the court necessary to be known in order to explain any evidence which he has given, but no
others.

Effect of the Provisions:

o S 130 & 131(1) provide for waiver in specific circumstances
S 130(2) client calling lawyer as a witness and questioning him on any matter
protected by privilege;
S 130(3) client calling an in-house counsel as a witness and questioning him on
any matter protected by privilege;
S 131 privilege may be lost if he voluntarily offers himself as a witness, as he
may be compelled to disclose privileged communications that are necessary to
explain any evidence that he has given
s 130(1) isnt a waiver provides that if the client merely gives evidence, this would
not be deemed a waiver of the clients privilege
Rationale
o With an implied waiver, even though the possessor of the privilege has not evinced an
intention to waive his privilege, fairness & consistency demands that the full advice be
made available (ARX at [52])
o Prevents a party from voluntarily putting privileged material before the court, and then
relying on the advantageous aspects of it to advance his case but claiming privilege in
respect of other less advantageous aspects of the documents for fear that it may damage
his case
Unfairness arises from the inconsistency of a posited act and the subsequent
maintenance of privilege, thereby implying a remedy

(3) ILLEGAL PURPOSE S 128(2)(A) & S 128A(2)(A)

Professional communications
128. (2) Nothing in this section shall protect from disclosure
o (a) any such communication made in furtherance of any illegal purpose;

23
 Illustrations
o (a) A, a client, says to B, a solicitor: I have committed forgery and I wish you to defend
me. As the defence of a man known to be guilty is not a criminal purpose this
communication is protected from disclosure.
o (b) A, a client, says to B, a solicitor: I wish to obtain possession of property by the use of a
forged deed on which I request you to sue. This communication being made in
furtherance of a criminal purpose is not protected from disclosure.
Communications with legal counsel in entity
128A. (2) Nothing in subsection (1) shall protect from disclosure
o (a) any such communication made in furtherance of any illegal purpose;
Scope of the Exception
Does the illegal purpose cover solely criminal wrongs, or does it also encompass civil wrongs?
The court held that under s 128(2), LAPri can only be overridden in cases of fraud and crime
Gelatissimo at [63]-[64]: While there is no judicial consensus on the exact ingredients of fraud, it
would clearly include all forms of civil and criminal frauds
The difficulty occurs when we move away from the core of the word fraud and into the penumbra
where reasonable disagreement may exist as to whether a particular purpose amounts
sufficiently to fraud such that privilege ought not to be attached to communications made in
furtherance of it
As per Gelatissimo, for such penumbra cases, a multi-factorial approach should be applied the
approach takes into consideration
o Public policy considerations that militate against the purpose for which the legal advice
was given;
Factors:
Dishonesty the court must evaluate the importance of preventing the
achievement of the purpose for which the legal advice or communication
was given
o E.g. The seriousness of the practical consequences if the allegedly
iniquitous purpose succeeds;
o Whether the victim may suffer losses akin to those suffered by
victims of criminal or civil fraud
The importance of preserving legal privilege in the particular case
o Prima facie, the policy of upholding the privilege is stronger if the
privilege sought to be protected consists of both LiPri & LAPri
o Claim to privilege will also generally be stronger when the conduct
of the claimant is itself an issue in the proceedings rather than
being a separate and distinct factor
The extent to which the party seeking to lift privilege is able to show that
privileged communications were made as part of an ongoing fraud
o Party opposing the privilege must adduce at least some prima facie
evidence concerning the claimants improper conduct because
they are effectively asking the court to deprive their counterparty
of a right he is prima facie entitled to, based on incomplete
evidence
o While the court acknowledged that there would be a lower
standard of proof the more the alleged fraud is closer in nature to

24
 the core/traditional fraud cases, the risk that the allegation is
unfounded must be balanced with the risk that failing to lift the
privilege furthers the fraud
o Whether the purpose is sufficiently iniquitous that it can be classified as fraud under s
128(2) therefore it is not enough to show a compelling interest in favour of lifting
privilege, there must still be some wrongdoing or iniquity attached to the
communication (at [66])
o This applies to LiPri as well, because since LiPri exists in SG in s 131 by virtue of the
common law, it is also subject to the common law exceptions (at [67])
Furthermore, since both legal professional privileges do stem from the same public
policy interest of facilitating justice for non-legally trained persons, one privilege
should not be broader than the other, and they should be subject to the same
exceptions
Application of the factors:
o Email thread protected by both LPPs
o Making false statement in affidavit to support pre-discovery application is a serious
misconduct, but any practical consequences are not as severe as those arising from
traditional frauds even if Dfs application fails, it still will be paid in costs, and the order
doesnt prejudice its chances at trial
o Additionally, issue of whether the affidavit contained a false statement is precisely the issue
that had to be determined at interlocs if you lift privilege because you think Y is lying,
thats tantamount to judging the pre-action discovery itself

PINSLER DOES NOT LIKE THIS CASE

The court conflated both exceptions under s 128(2)(a) & (b) because the case held that both limbs
encompassed both criminal & civil fraud

o Both exceptions should be interpreted & applied separately because they consider two very
different situations
o Additionally, limb (b) is irrelevant to the facts of Gelatissimo because it only operates when a
crime or fraud has been committed by the client since the engagement of his lawyer
o Finally, we arent sure if limb (b) even extends beyond criminal fraud considering (a), (b)
doesnt refer to criminal fraud, but since limb (b) is primarily concerned with unlawful creation
or modification of documents, fraud here is arguably just a subset of the word crime

The penumbra extension isnt even in the terminology of the section

o HC failed to examine whether the extension of fraud to include mere improper (but iniquitous
conduct) is consistent with the wording of s 128(2), despite the fact that under s 2(2),
common law authorities can only be applied to they extent that they are consistent with
the statute
o Especially an issue considering the terminology of the provision is arguably not flexible enough
to compartmentalize fraud into core and penumbra fraud
It is artificial to consider only the interests underlying the prevention of fraud, and not the other
interests which compete with privilege in the absence of any issues of conduct
o E.g. In situations where the court arguably needs full access to all relevant documents to
defend the Accused in the face of strict MDA presumptions
Finally, Gelatissimo is a pre-trial case, and it is still unclear whether the EA applies to pre-trial issues

25
 o Also Pinslers last point (which you cant use in the exam because its unpublished) is that the
sentence was all this gobbledygook I dig up, I will feed to the press, which is really neither
legal advice nor relevant to litigation privilege shouldnt even have been triggered in the first
place

(4) INADVERTANT DISCLOSURE

RULE
Even though a document is privileged, once the privileged document is disclosed, the privilege
ceases and the other party may adduce secondary evidence of the contents of the document
(Calcraft v Guest), regardless of whether the documents were obtained by improper or even
criminal means (Lord Ashburton v Pape)
o Rationale LAPri is a procedural rule of immunity rather than an evidentiary rule of the
inadmissibility, and therefore can actually be surrendered by accident as long as its
relevant it is admissible
EXCEPTIONS
o Discretion to exclude advice inherent in courts jurisdiction to exclude relevant evidence
if:
Prejudicial effect outweighs probative value at trial (Kadar);
On the grounds that evidence was obtained through procedural irregularities
(Dahalan);
Obtained through entrapment (Rayney Wong (HC));
Illegally obtained (SM Summit)
None of them cover I accidentally emailed the wrong side
o Injunctions as long as the injunction was applied for before the document has been
presented & relied on in court
A party asserting privilege on the documents may apply for an injunction to prevent
copied from being adduced, if he does so before the copies have been adduced or
otherwise relied on at trial (Kennedy LJ in Lord Ashburton)
The fact that privileged documents are admissible does not affect the
courts equitable jurisdiction to grant an injunction and restrain
disclosure of the documents, on the basis that they contain confidential
information that has been obtained (Wee Shuo Woon)
This injunction is based on the fact that there has been a breach of
confidence thereby justifying the protection of the document
Conditions for injunction:
Document has not yet been entered into evidence if it has become part
of the record in court proceedings, then its exclusion is governed by the
common law rules of evidence;
As an equitable remedy, the court has the discretion in deciding whether or
not to restrain the use of privileged documents as per equitable principles
(e.g. clean hands etc.)
There still is a point in enforcing the duty of confidence (Wee Shuo Woon):
o Information was in the public domain was on the internet;
o Pf had a compelling reason to protect the information since he was
a victim of cybercrime
o SG position as affirmed in Wee Shuo Woon and Mykotowych:

26
 The fact that a document is privileged and then inadvertently released is not a bar
to admissibility
But when the document is already in the possession of the other party, the issue
isnt about privilege & withholding disclosure, but about admissibility
The question in equity is therefore whether the document should be
admitted, regardless of the fact that it is admissible equity may, through
the granting of injunctions, intervene to prevent the unauthorised use in
court proceedings of information contained in privileged material which
would in most instances, be of a confidential nature
Conflict on the area of law is regarding whether evidence that is protected by
privilege but has come into possession of the other party should be admitted
Calcraft secondary evidence in the form of copies of the contents of
documents protected by privilege were admissible even though the
originals were privileged
Lord Ashburton the fact that the documents were admissible (which it
viewed as the effect of Calcraft) did not affect the courts equitable
jurisdiction to grant an injunction to order the delivery of the documents
or to restrain the publication or copying of the documents on the basis
that they contained confidential info that was improperly obtained
Webster and Goddard attempt to reconcile the cases Scott J in
Webster held that the two cases involved two independent & free-
standing principles of jurisprudence, with Calcraft dealing with privileged
documents & the scope of protection provided by LPP, while Lord
Ashburton deals with confidential documents and the protection equity
provides such documents
o When a document passes into the hands of some other party to the
action, then prima facie the benefit of the privilege is lost. Other
party has in his hands evidence, which, pursuant to Calcraft, can be
used in trial.
o However, the privileged document will almost invariably contain
confidential info, which is eligible for protection against
unauthorised disclosure or use.
o (Similar observations were made in Goddard)
Same position adopted locally in Tentat at [34] & [39], a party in
possession of a privileged document was entitled to adduce copies of that
document as secondary evidence subject to the right of the person
claiming privilege to apply to restrain the use of the document PRIOR
to its presentation in court as evidence & its introduction into the
public domain
o Gelatissimo cited Kan Js observations in Tentat and held that
Tentat rejected the principles stated in Calcraft in favour of a
protective attitude and therefore the position in Calcraft
consequently no longer applies to the law of privilege in Singapore
however, Mykytowych rejects this holding and argues that this
wasnt the position taken in Tentat

27
 o WSW corrected that the principle of Calcraft was part of the law of
evidence and related to the scope of protected offered by LPP,
while Lord Ashburton comes under the law of confidentiality and
affords protection to confidential information via equity
o Court in Mykytowych held that the cases involve different principles
but agree that it is not entirely satisfactory that the question of
whether privileged documents will be admitted should depend
on when, in the course of litigation, applications are brought &
steps are taken to restrain their use

HT S.R.L. v Wee Shuo Woon [2016] SGHC 15.

Facts Pfs computer systems were hacked by 3P, info obtained from the systems were uploaded
onto the Internet included privileged & confidential emails between Pf & solicitors
pertaining to the pending suit
Df accessed the emails & sought to rely on its contents to strike out the bulk of Pfs claims
o Pf applied to have emails expunged from Dfs affidavits in support of the striking
out action
/held/ Court held that the CoLaw rules on LPP applied to affidavits filed in interlocs which
precede a trial such as a striking out action
On the issue of expunging the emails, court was clear that admissibility & privilege are
distinct concepts
o The fact that a privileged document is admissible in evidence doesnt actually
affect the courts equitable jurisdiction to grant an injunction to restrain their
disclosure on the basis that they contain confidential info that has been
improperly obtained
o Party just has to apply for an injunction before evidence is used use refers to
info becoming part of the record in any court proceedings
Injunction is based on the law of confidentiality;
However, once the documents have entered into evidence, their exclusion
is governed by CoLaw rules of evidence
o In this case, since the hearing for the striking out had not yet taken place, emails
not formally admitted into evidence emails had not been used
On the issue of whether the emails published on the Internet are still protected by
confidentiality:-
o Duty of confidentiality is subject to the limitation that confidentiality only applies to
info to the extent it is confidential
o So once something is in the public domain, principle of confidentiality generally has
no application
However, public domain is not a test, its just one factor impacting the
scope of the duty of confidentiality
The test is rather whether there is still a point in enforcing the obligation
of confidence
o On the facts of the case the imposition of an obligation of confidence remained just
& reasonable even though the info was online public domain
Pf had a compelling interest in restraining use of the emails to prevent

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 privileged & confidential info from his solicitor from being used against him
Pf was victim of a cybercrime he had not waived his privilege in the
documents
Df knew all of this, but used the emails anyway
o Therefore the preservation of LPP here prevails over the public interest of having
maximum relevant material available to court court did not have discretion to
refuse relief unless there are other reasons affecting the granting of an equitable
remedy

Mykytowych, Pamela Jane v V I P Hotel [2016] SGCA 44.

/held/
Resp submitted that Dr Tays medical report is inadmissible because it is covered by LiPri
o Not legally correct conflates distinct concepts of admissibility, privilege &
confidentiality
o Privilege
Allows party to withhold disclosure of info which would otherwise be
compulsory to disclose
o Admissibility
Relates to question of whether a piece of evidence may be received by the
court which is governed by whether that piece of evidence is relevant to
the matters in issue
o On the facts of the case, the medical report is already in possession of the other
party issue is no longer whether you can withhold disclosure, but one of whether
its admissible
Only way privilege is relevant is if you can show that the report shouldnt be
admitted and argue in favour of the court making use of its equitable
jurisdiction to restrain breaches in confidence
Conflicting approaches
o Calcraft secondary evidence (in the form of copies) of the contents of documents
protected by privilege are admissible even though originals were privileged
o Lord Ashburton the fact that documents may be admissible doesnt affect the
courts equitable jurisdiction to grant an injunction to order the delivery up of the
documents or to restrain the publication or copying of documents on the basis that
they contained confidential info that had been improperly obtained
o Webster looks at them as two different principles of jurisprudence Calcraft deals
with privileged docs & the scope of protection of LPP, and Lord Ashburton deals
with confidential documents and the protection equity will provide such documents
When a document passes into the hands of some other party to the action,
then prima facie the benefit of the privilege is lost. Other party has in his
hands evidence, which, pursuant to Calcraft, can be used in trial.
However, the privileged document will almost invariably contain
confidential info, which is eligible for protection against unauthorised
disclosure or use
o This is the approach SG law agrees on as well although the court concedes that

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 it is not entirely satisfactory that the question of whether privileged documents will
be admitted depends on whether, during the course of litigation, applications are
brought, and steps are taken to restrain their use

3. LITIGATION PRIVILEGE

A. Definition, Rationale and Scope

Litigation privilege (LiPri) only attaches to communications which at their inception come into
existence with the dominant purpose of being used in aid of pending or contemplated litigation
(Ventouris v Mountain)
Rationale
o Main objective is ensuring the efficacy of the adversarial process & administration of justice
by maintaining the confidentiality of the legal advisers strategy in litigation &
preparation of the case and preserving the autonomy of the parties to prepare &
strategise their cases free from prying eyes
Scope
o Only applies where litigation exists or is contemplated;
o Applies to every communication whether confidential or otherwise, as long as it is for the
purpose of litigation, and therefore can include communications from 3P (regardless of
whether they are agents of the client)
o Can also overlap with LAPri in the situation where the clients lawyer or legal adviser
provides advice or information regarding pending or contemplated litigation e.g. a
written opinion on the likely outcome of proceedings in court

Ventouris v Mountain [1991] 1 WLR 607 (CA)

Facts
Pf sought an order for Df to produce a better list of the documents which were in his
possession
Df resisted the application & claimed that the documents which had not previously been in
his possession and had not been created for the purpose of litigation, but had been
obtained by solicitors for this purpose, were subject to LPP
ISSUE: Whether LPP can be claimed for original documents which were not previously in
the possession of a party to the actual or contemplated litigation, and had not been
created for the purpose of the litigation, but which had been obtained by solicitors for the
purpose

30
/held/
Bingham LJ: Privilege does not cover any original document even if it was obtained by a
party to the litigation or his legal adviser, for the purposes of litigation if the document
did not come into existence for the purposes of litigation
o At law, disclosure of relevant evidence is generally considered beneficial, so any
exception must be justified as serving the public interests that give rise to the
exception
o In this case, hard to see how the rights of a potential litigant to seek & obtain legal
advice and conduct his proceedings under a seal confidence would be infringed if a
party is obliged to produce original documents in existence before litigation was
in the air, which a litigant obtained from a 3P for the purposes of litigation but
the 3P himself could actually be compelled to produce at trial without any
possible ground of exception

B. Compatibility of LiPri in the EA

Confidential communications with legal advisers

131.(1) No one shall be compelled to disclose to the court any confidential communication which
has taken place between him and his legal professional adviser unless he offers himself as a witness,
in which case he may be compelled to disclose any such communications as may appear to the
court necessary to be known in order to explain any evidence which he has given, but no others.
Effect of Provision
The common law doctrine of LiPri is compatible with s 131 of the EA (Skandinaviska at [67])
o Since s 131 clearly envisages the concept of litigation privilege, there is no inconsistency
between the common law & the statutory provisions
o Accordingly, s 2(2) would apply to confirm the applicability of common law litigation
privilege in the local context as there is no inconsistency between litigation privilege in
common law and s 128 & 131 read together (citing Mariwu Industrial)

o Pinsler argues that actually, s 131 appears to solely be concerned with the issue of whether
the witness is compellable to answer questions in court relating to information over
which he claims legal privilege can we really say its not inconsistent with LiPri?

(1) APPROACH TO LIPRI

While LAPri should arguably have an absolute status, Pinsler argues that the nature of LiPri is not
absolute
o This is why a lawyer cannot disclose anything without clients permission under LAPri, but
LiPri doesnt actually prevent opposing party from calling 3P as witness to give evidence of
his factual finding
o Pinsler therefore argues that LiPri should be subject to a balancing operation to determine
whether privilege should override the interest of the counterparty

C. Test for LiPri

As per Skandinaviska: -

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 o [1] Is there a reasonable prospect of litigation?
It is generally accepted that a reasonable prospect of litigation is sufficient to
warrant LiPri, and there is no requirement that the chance of litigation occurring
must be 50% or higher
If we required anything less than reasonable prospect LiPri would be
too readily invoked, diluting the connection on the basis of the privilege in
the need for parties to prepare for proceedings
However, anything more than a reasonable prospect ignores reality that
decisions are contingent on many factors, and its just not possible to
determine with certainty before the fact whether litigation should be
pursued

Between small chance and 50%, what must be shown is that there is
some possibility which is objectively probable (ARW)
Instead, the question is whether the client had the prospect of litigation in mind at
the time he sought legal advice or consulted his lawyer
Citing USA v Philip Morris Inc at [72]:
Insufficient for there to just have been a mere possibility of litigation, a
distinct possibility that sooner or later someone might make a claim,
or a general apprehension of future litigation
o [2] Was litigation the dominant purpose for which the legal advice was sought?
If the advice was sought purely in anticipation and contemplation of legal
proceedings, the privilege clearly applies
However, in cases where the client had more than one purpose in seeking legal
advice, he must prove that the dominant purpose for which legal advice was
sought and obtained was the anticipation or contemplation of litigation (citing
Waugh at [75])
Therefore in a case where the litigation purpose was not dominant and was
merely one of the several equal purposes behind a document, the
document would not attract LiPri (Waugh)
Litigation has to be the primary objective, and if another course of
action, such as a regulatory determination, is interposed, it can rarely
be said that primary objective is litigation (ARW)
It is trite that the question of dominant purpose is to be determined AT THE TIME
when the documents were created (at [97])
The court will consider all aspects of the case to make this determination,
including the state of mind of the entity/person who commissions the creation of
the document, and the state of mind of the 3P (Brinks)
Waugh v British Railways Board [1980] 1 AC 521 (HL)
Facts
Pfs husband was employed by the Df and died in an accident during work
o Dfs practice is that when an accident occurs, reports would be made and sent to
the boards solicitors so they could advise the board on its legal liability
o Pf brought action against Df and sought discovery of the reports
o Board refused to disclose report on the grounds that one of the principal purposes
of preparing the report was so that it could be passed to the solicitor so he could

32
 advise the board, and if necessary, conduct defence to the proceedings,
therefore making it subject to LPP

/held/
As per Lord Simon of Glaisdale: the dominant purpose test represents the intermediate
line between the equally important interests of [1] ensuring relevant evidence is presented
to the court, and [2] ensuring the effectiveness of adversarial proceedings
o So for that important public interest to be overridden by a claim of privilege, the
purpose of submission to the partys legal advisers must at least be dominantly for
the anticipation of litigation
o However, on the facts, the purpose of obtaining legal advice was both for obtaining
advice on railway operation and safety and in anticipation of litigation, with both
purposes having equal rank and wright boards claim had failed

Brinks Inc v Singapore Airlines Ltd [1998] 2 SLR(R) 372 (CA)

Facts
Robbery case gold bars escorted by Pf were stolen from a cargo room, where it was
received by Df, who then shipped the bars
Df commissioned a report of investigations, which Pf sought discovery of

/held/
Court applied the Waugh dominant purpose test ascertaining dominant purpose not only
by reference to the intention of the actual composer of the report, but by an objective
view of the whole of the evidence, particularly by reference to the intention of the party
who procured its genesis
o Presently, Df initiated the report by requesting that their insurers make such a
report, so insurers appointed the firm GM
However, there was insufficient eviedence that the report was specifically
commissioned to aid the lawyer in providing legal advice
o Df also tried to argue that due to the size of the loss and the fact that it was caused
by robbery, Df believed that litigation was a reasonable prospect court said that
the consideration was then whether on the facts, the value of the gold bars
stolen could elevate an average possibility of a claim to the level that litigation
was a reasonable prospect
o On the facts of the case, this point did not have to be considered since the fact that
it had been two months after the accident and no claim was made showed that
there was no reasonable expectation of litigation

Skandinaviska Enskilda Banken AB (Publ) v Asia Pacific Breweries (Singapore) Pte Ltd [2007] 2 SLR(R) 367
(CA)
/held/ Rule App
Dominant purpose of the reports was in aid of litigation
o Facts of the case support the finding that both legal & accounting advice was
foremost in minds of the directors of the respondent or else no point in
appointing D&N to undertake jointly with PWC
o Inquiry not just into quantifying the financial impact of all the unauthorised

33
 transaction, but also their nature & the circumstances in which they occurred
o When being informed of the fraud, there was an immediate & urgent response from
APBS to take all necessary actions to uncover the extent of Xs fraud in order to
determine its financial impact on APBLs business
o In fact, given the huge unauthorised loans that Respondent would be called upon
to repay, its just unarguable that Respondent would not have concluded that
litigation was bound to occur by the time it appointed PWC & D&N to
investigate the unauthorised loans
Depends on the factual matrix of the case (at [95])
o If a report is made as a matter of routine and not with reference to liti at all
obviously not privileged;
o However, the fact that a report may lead to factual findings is not terminal to the
partys case since what is legally material is the purpose for which the factual
findings were to be used
o ONLY ISSUE was whether PWC draft reports were commissioned & prepared
for the dominant purpose of litigation it was
While there were other purposes such as ascertaining potential financial
exposure of APBL & putting in place a more reliable system to prevent
future frauds, in the context of this case, they were just subsidiary
purposes

Comptroller of Income Tax v ARW [2017] SGHC 16

Facts Issue was whether documents, communications, and other papers generated in the course
of an investigatory audit by a public authority are protected by legal professional
privilege, either as LiPri or LAPri
ARW asked for these documents which were generated in the course of an investigatory
audit by CIT
/held/ [29]: S 128 & 131 of the EA are generally taken as providing for legal professional privilege
in SG
o However, sections do not stipulate the privilege in exactly the same form as the
common law rules
o In Skandinaviska, CoA noted that since s 128 & 131 were essentially founded on
English cases, English law principles apply to determine their scope, subject to the
limitation of s 2 (Asia Pacific Breweries)

Application of LiPri
o Elements:-
[1] There must be reasonable prospect of litigation;
[2] Documents must be created for the dominant purpose of litigation
At [32]: [1] Reasonable Prospect of Litigation
o Since the objective of the privilege is to protect confidentiality between a person
& his lawyers as they prepare to face off against their opponents, litigation must
be a reasonable prospect ([31], citing Sheldon Blank, as cited in APB)
Object of LiPri is ensuring the efficacy of the adversarial trial process, and
not to promote the solicitor-client r/s. To achieve this purpose, parties to
litigation must be left to prepare their contending positions in private,

34
 w/o adversarial interference & the fear of premature disclosure.
o If we required anything less than reasonable prospect LiPri would be too
readily invoked, diluting the connection on the basis of the privilege in the need for
parties to prepare for proceedings
o However, anything more than a reasonable prospect ignores reality that
decisions are contingent on many factors, and its just not possible to determine
with certainty before the fact whether litigation should be pursued
o Therefore, what counts as a reasonable prospect is not a 50% probability (citing
Philip Morris)
On the other hand a small chance would not count
Between small chance and 50%, what must be shown is that there is
some possibility which is objectively probable
o At present case, when audit was conducted, litigation was not yet embarked on,
but at least a possibility
Admittedly, there were a number of contingencies whether reassessment
would be contested, whether proceedings should be instituted but what
matters is that the level of probability that litigation would occur was
not negligible or very low
Even the fact that the litigation in contemplation at that time was of a
different basis doesnt matter once privileged, always privileged
applies in so far as a change in the litigation contemplated would not
disqualify reliance on the privilege
At [35]: Dominant Purpose
o Dominant purpose of the creation of the documents sought to be protected must
be for litigation
Otherwise, basis of the privilege is not sufficiently engaged
However, not necessary that litigation is the sole purpose
o At [37]: Where there is a high probability or likelihood of litigation, litigation is likely
to be made out to be the dominant purpose broad, practical approach in
determining dominant purpose by considering what is overarching
Highgrade insurers commissioned reports to determine both whether the
claim on the insurance could be supported, and whether there should be
litigation.
/held/ Dual purposes were inseparable since if the insurance claim
was held to be unsupported, litigation would inevitably follow
Plummers Accountants report prepared in order for Df to determine
whether immediate payment could be demanded and thus whether Pf
would likely withdraw or compromise their claim was essentially prepared
for the dominant purpose of determining whether claim should be made
APB Documents sought to be disclosed were created for several
purposes determining the respondents liabilities arising out of the fraud
of its employees, such rights pertaining to litigation, but also advised
respondent on how to prevent similar incidents of fraud
/held/ Even though they served other purposes, litigation was not
only a reasonable prospect, but a reality which would have been
foremost in the mind of the Respondent at the time documents

35
 were created
o [39]-[41]: However, on the facts of the case, objective of the document was to
determine whether a basis for additional assessment existed
If so, additional assessment would be the first step if the scheme was found
to be a tax avoidance arrangement, and litigation would occur if the 1st Df
did not accept this additional assessment
Litigation here may be probable, but the assessment creates a branching
set of events that could encompass a different outcome, and just because
litigation could follow a regulatory action doesnt mean litigation was a
dominant purpose or else any regulatory action can be the basis of a
claim in litigation very early stage, couldnt fairly say liti was contemplated
Litigation has to be the primary objective, and if another course of
action, such as a regulatory determination, is interposed, it can rarely be
said that primary objective is litigation
Application of LAPri
LAPri protects communication between the client & his lawyer, covering both advice
actually conveyed, and intended to be conveyed ([43], citing Three Rivers)
o Aims to allow a person to obtain advice from his legal adviser fully in confidence
o Privilege extends to advice obtained from in-house counsel (lawyers within the
same organisation or entity) (ARX)
LAPri arises where communication is made for the purposes of legal advice (Balabel)
o Further recognised that communications made between a client & lawyer may take
place across a continuum or spectrum of circumstances, ranging from, at one
end, a specific request for legal advice or a document conveying clear &
detailed legal advice, to the other end, where info or documents are
communicated for the purposes of keeping each other apprised to allow advice
to be given when needed.
Only one element advice must be given in a legal context
o Legal context is not narrowly defined, but a legal context must exist merely
communications that could possibly be referred on to lawyers for the giving of
advice doesnt clothe the communication with legal advice privilege
o Citing Bacon & Woodrow, court acknowledged that a solicitors professional duty
extends to the commercial wisdom of a transaction in respect of which legal
advice was also sought
In such a case, all communications between the solicitor & client relating to
the transaction would be privileged as ling as the communications related
directly to the solicitors performance of his professional duty as a legal
advisor
o Similarly, Balabel involved communications sent to lawyers in the midst of
discussions about a convenyancing transaction as well as the lawyers advice on that
transaction.
Court held that its artificial to draw a line between express requests for
legal advice and other matters passed on to the lawyers transaction
as a whole may require communications between client & solicitor
o In this case however, there was nothing to show that any of the requested
documents specifically were communicated or intended to be communicated to

36
 lawyers for their broad advice
o Mere fact that documents exist and may possibly considered & reviewed from a
legal perspective enough must be evidence that documents went to, or were
intended to be sent to, lawyers

D. Exceptions to LiPri

Since LiPri exists in s 131 by virtue of the common law, it should also be subject to common law
exceptions (Gelatissimo at [33])
o At [36]: considered that all common law jurisdictions recognise some form of fraud or crime
exception, and therefore concluded that the fraud exception applies to LiPri
While the court acknowledged that s 131 is drafted in such a way as to suggest that
LiPri is an absolute privilege that cannot e overridden in any circumstances, this
would lead to an absurd result
o Especially considering that both LPPs stem from the same public policy of facilitating
access to justice for non-legally trained persons, it would be anomalous if the
exceptions to one were much broader than the other. Accordingly, the court held at [67]
that LiPri in s.131 is subject to the same fraud exception that exists in s 128 and applied
both s 128(2)(a) and (b) to LiPri
Citing Kuwait Airways e.g. in the case of a conspiracy to deprive a widow of her
savings, and the fraudsters do not contemplate litigation, but litigation takes place
it would be absurd for the fraud exception to apply until litigation is
contemplated, but not thereafter. Furthering the same criminal purpose after
LITIGATION BEGINS (OR IS CONTEMPLATED) cannot attract more privilege
than the original criminal purpose
Or, if the criminal purpose only came into existence after litigation began

37