A case note on Boey Ghim Huat v Singapore Sports Council (Neo Meng Yong, third party) [2013] SGHCR 15.

Introduction

In Boey Ghim Huat v Singapore Sports Council (Neo Meng Yong, third party)[2013] SGHCR 15 (Boey v SSC), the claimant was a fifteen-year old boy who suffered serious personal injuries while participating in a lifesaving course at a swimming complex. He sued the Singapore Sports Council (SSC) which owned the swimming complex and sought disclosure of various documents including witness statements and a SSC Committee of Inquiry (COI) Report on the accident. The SSC argued that the witness statements were protected from disclosure by litigation privilege while the COI report was protected by legal advice privilege.

Legal advice privilege and litigation privilege are two types of legal professional privilege which exist at common law and under statute. Where a document is protected by either litigation privilege or legal advice privilege, it is exempt from disclosure in litigation.

Briefly, legal advice privilege attaches to a confidential communication between a lawyer and his client for the purpose of seeking legal advice, whether or not litigation is contemplated. One example would be a  client’s email asking for advice on how to structure a corporate takeover. In this example, legal advice privilege will protect the client’s communication from disclosure even though no litigation is on the horizon.

Litigation privilege will apply where a communication is for the purpose of existing or contemplated litigation, even if the communication is not between a lawyer and his client but originates from a third party (for example, an expert opinion written by a medical expert in the context  of pending litigation by a motor accident victim).

Litigation privilege

For litigation privilege to apply, the party claiming such privilege must show, firstly, that there is a reasonable prospect of litigation at the time the document is created, and secondly, that the dominant purpose for the creation of the document over which privilege is claimed is pending or contemplated litigation.

In determining whether there is a reasonable prospect of litigation, litigation does not have to be certain, but it is not enough for the party claiming privilege to show that litigation is merely possible. In Boey v SSC, the court found that there was a reasonable prospect of litigation at the time the witness statements were recorded because the claimant’s injuries were very severe and resulted in permanent disabilities.

Whether a document has come into existence for the  dominant purpose of litigation does not necessarily depend on whether it is routinely created, although the fact that a document is a routine one will tend to suggest that it would normally have come into existence as a matter of course and is therefore not produced for the dominant purpose of litigation. In Boey v SSC, the court found that the witness statements were not recorded for the dominant purpose of litigation, because the evidence showed at least three purposes for which the statements were recorded: firstly, to establish the circumstances surrounding the incident; secondly, to prepare a report to the SSC’s in-house counsel, and, thirdly, to be supplied to the COI for its investigations. Since the use of the witness statements to compile a report to SSC’s in-house counsel was merely  one of the purposes for which the statements were created, the SSC’s claim to litigation privilege over the witness statements failed.

Legal advice privilege

In Boey v SSC, the court also had to decide whether the COI report on the incident was protected by legal advice privilege. On the facts of the case, the COI was of a  fact-finding nature, that is, to ascertain what happened during the incident and look into possible ways to ensure  safety within swimming complexes operated by the SSC. There was also evidence before the court that the formation of a COI was for safety purposes. Therefore, the SSC did not claim litigation privilege over the COI report  because it would not have been able to show that the dominant purpose of the  COI report was for anticipated or actual litigation.

The SSC argued that since the COI report was sent to the SSC’s in-house counsel for legal advice, it formed part of solicitor-client communications traditionally protected by legal advice privilege. They also urged the court to confine the dominant purpose test to litigation privilege. Therefore the court had to decide whether a document passing between a lawyer and his client is protected by legal advice privilege even though it  was not created for the dominant purpose of legal advice.

The court found that simply sending a document to an in-house lawyer does not automatically confer upon it immunity from discovery. In relation to the COI report, there was no legal advice embedded in it or which formed an integral part of the COI report, which would have protected  it from disclosure. Ultimately, a document would be protected by legal  advice privilege if its dominant purpose at the time of its creation was for provision to the client’s legal counsel for the purpose of seeking legal advice. Therefore, the COI report was not protected by legal advice privilege, and the court ordered disclosure of both the witness statements and the COI report.

Practical tips for preserving legal professional privilege

We set out below some practical tips on how to maximise the protection afforded by litigation privilege following the decision in Boey v SSC:

  • When a document (such as a witness statement or internal investigation report) is being created for the purpose of legal advice, or for impending or existing litigation, make this clear by labelling the document “For legal advice” or words to this effect. While the court will examine the substance of the document to determine its dominant purpose,  the label on the document will make its purpose less ambiguous.
  • Instruct any experts whose reports will be used for legal advice through lawyers whenever possible. If it is not practicable to instruct lawyers yet, consider marking documents created for the purpose  of eventually seeking legal advice “For legal advice.” The text of the communication instructing the expert should state clearly that the expert’s opinion is being sought for the purpose of legal advice, or for the purpose of contemplated or existing litigation, as the case may be.
  • Where possible, do not use the same document for multiple purposes. For example, witness statements taken for the purpose of facilitating legal advice by an in-house lawyer should generally not be forwarded to third parties for other purposes, as this may result in privilege being lost.