One step closer - English Court of Appeal aligns itself with other common law jurisdictions to find legal advice privilege subject to a "dominant purpose" test

Clients and legal practitioners often come across a fairly common question during the course of discovery/disclosure in litigation or arbitration: is the document privileged? Legal professional privilege is a fundamental and constitutionally guaranteed right in Hong Kong and, generally speaking, can be split into two branches: litigation privilege and legal advice privilege.  Legal advice privilege (LAP) offers broad protection to documents prepared by a client or its lawyers for the purpose of obtaining legal advice. In practice, however, clients and practitioners need to carefully consider what documents specifically, amongst all those prepared for seeking legal advice, would attract LAP. A related and important question is, who qualifies as the “client”.

The Hong Kong Court of Appeal (HKCA) in Citic Pacific Limited v Secretary for Justice and Commissioner of Police (unrep, 29/06/2015, CACV 7/2012) adopted the “dominant purpose” test for LAP, a broader one than had been previously applied. LAP now covers 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. In essence, this can include background documents or communications prepared by the client for use in instructions to the lawyers. The HKCA also took a liberal approach in interpreting the "client". In a corporate context, the HKCA held that the client is the corporation itself and the question is to ascertain which employees are authorised to act for it to obtain legal advice. With that, Hong Kong courts moved away from the English Court of Appeal’s (English CA) narrow definition of "client" in Three Rivers No 5 [2003] QB 1556 (i.e. documents did not attract LAP unless the employee was tasked with seeking and receiving such advice on behalf of the company).  Similarly, other common law jurisdictions such as Australia and Singapore, too, chose to depart from English case law in this area.

The latest English CA decision on the scope and test of LAP aligns with Citic Pacific and has expressly taken Hong Kong authorities into consideration. We welcome this development. In The Civil Aviation Authority v The Queen on the application of Jet2.com Ltd [2020] EWCA Civ 35, the English CA found that LAP was subject to a “dominant purpose” test. The English CA held that in order to benefit from LAP, it is necessary to show that the dominant purpose of a communication was to give or obtain legal advice. The finding was based on two grounds. First, both litigation privilege and LAP are limbs of legal professional privilege and there is no compelling rationale for differentiating between limbs of the same privilege in this context. Second, in addition to Hong Kong, the English CA considered the position in other common law jurisdictions such as Singapore and Australia, and recognised that not only is the "dominant purpose" test able to work in practice but also that there is an advantage in the common law adopting similar principles.  As to the meaning of “client”, the English law position remains unchanged and is out of step with other common law jurisdictions. Any change to the law on that point will have to await a Supreme Court decision.  We hope to see in the future that the Supreme Court will steer the law on this point to align with Hong Kong and other common law jurisdictions.

For more details, please see our blog posts on the latest EWCA judgment here and the HKCA judgment reported in June and August 2015.