In the recent case of ARX v Comptroller of Income Tax [2016] 5 SLR 590, the Singapore Court of Appeal confirmed that legal professional privilege attaches to in-house counsel communications even before the coming into force of amendments to the Evidence Act (Cap 97) on 1 August 2012.

Privilege generally

The process of mutual discovery is a fundamental feature of the common law legal system – parties are enjoined to furnish all documents in their possession, custody or power that could support, or adversely affect, the case of any of the parties to the matter. A significant exception to the discovery process may be found in the doctrine of privilege, of which legal professional privilege is particularly important and commonly asserted.

Legal professional privilege protects communications between a solicitor and a client for the purpose of providing or obtaining legal advice (legal advice privilege), and between a solicitor and third parties in contemplation of litigation (litigation privilege).

While originating in the common law, legal professional privilege in Singapore is enshrined in sections 128 and 131 of the Evidence Act[1], which covers both legal advice privilege and one element of litigation privilege[2]. As originally drafted, those provisions (which referred to “advocate and solicitor” and “legal professional adviser”) were intended to apply exclusively to advocates and solicitors in independent legal practice, and not to in-house counsel[3].

Amendments to the Evidence Act (which came into force 1 August 2012)

This position has changed. By way of the Evidence (Amendment) Act 2012[4], which came into force on 1 August 2012, the Act was amended to expressly extend the scope of the privilege to in-house counsel:

  1. A new section 128A extends the scope of the privilege to any “legal counsel in an entity”, including legal counsel employed by corporate entities that are “related” within the meaning of section 6 of the Companies Act[5].
  2. Section 131 was amended to clarify that the term “legal professional adviser” includes in-house counsel.

These provisions, however, only apply to in-house communications on or after 1 August 2012. What then of in-house communications prior to 1 August 2012?

In-house counsel communications prior to 1 August 2012

In the recent case of ARX v Comptroller of Income Tax[6], the Court of Appeal put this question to rest, and confirmed that legal professional privilege attaches to in-house counsel communications even before the coming into force of the Evidence (Amendment) Act 2012.

The Court of Appeal conducted a comprehensive review of Commonwealth case law, and found that the common law protects in-house counsel communications, provided that:

  1. the in-house counsel in question possesses professional legal expertise (whether in the Singapore context or otherwise);
  2. the communications were qua legal advisers; and
  3. the communications were confidential.

The Court of Appeal held that the common law rule applies in Singapore, and commented that “the raison d’etre of legal professional privilege is that full, free and frank communication between persons and their legal advisors… can only take place if such communications can be carried out in confidence… [and i]t would be artificial, unjust and unfair to draw a distinction between the advice proferred by an in-house counsel on the one hand and advice proferred in the more traditional context of practice on the other[7].

Takeaways

  • In-house counsel communications are privileged and are not subject to discovery, provided that: (a) the in-house counsel is legally trained; (b) the communications were qua legal advisers; and (c) the communications were confidential.
  • The privilege extends to in-house counsel employed by related corporate entities.
  • Notwithstanding, the privilege continues not to apply to communications made in furtherance of any illegal purpose, and to any fact observed by the in-house counsel in the course of his employment showing that any crime or fraud has been committed since the commencement of his employment as in-house counsel.