Legal advice privilege - taking a closer look at the Hong Kong Court of Appeal judgment in adopting a wider test

The judgment recently delivered by the Hong Kong Court of Appeal (CA) in Citic Pacific Limited v Secretary for Justice and Commissioner of Police (unrep, 29/06/2015, CACV 7/2012) sets a new precedent in Hong Kong for legal advice privilege. In its decision, the CA expressly disagreed with the restrictive definition of a ‘client’ adopted by the English Court of Appeal in Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474 and decided to take a more liberal approach in interpreting who the ‘client’ is for the purpose of legal advice privilege. According to the CA’s judgment, the client is simply the corporation and the question is which employees should be regarded as being authorised to act for it in the process of obtaining legal advice. In addition, and importantly, the CA has adopted a broader test for legal advice privilege than had previously applied. As a result of the decision, legal advice privilege is no longer restricted to communications between a lawyer and a client, but now extends to cover an internal confidential document of a client organisation which is produced or brought into existence with the dominant purpose that the document or its contents be used to obtain legal advice.

Click here to access our recent ebulletin in which Gareth Thomas, Julian Copeman and Dominic Geiser take a closer look at the expanded test for legal advice privilege, the new definition of 'client' and its application, procedures to be adopted when privilege is in dispute including the CA's recommendation of instructing an independent lawyer to deal with privilege materials and some salient take away points.

For more information or if you wish to discuss any matters, please contact the authors or your usual Herbert Smith Freehills contact.