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Rule of evidence
Neither Solicitor nor Client can be ordered to give evidence in court/ elsewhere on
communication between them/ work done by Solicitor in giving advice/preparing litigation
Police and Criminal Evidence Act 1984
S.9:
- search warrant shall be cease to have effect so far as it relates to the authorisation
of searches for items subject to legal privilege.
S.10:
- AS & Client (Legal Advice)
- AS & Client/ Client & Third Party (legal proceedings)
Greenough v Gaskell
Rationale:
promote the conduct of legal business by encouraging the Client to confide unreservedly in his
legal adviser
Rationale:
a. facilitate access to legal advice
b. facilitate the trial preparation of a case by securing to the Solicitor a zone of privacy
c. duty of confidentially which a Solicitor owes to his Client
Background of privilege
Re Le Wah Cane
Receiver take over board of directors of client, their demand equal to client’s demand
Solicitor obliged to uplift the privilege and surrender document to receivers
B. It extends to all communication received and advice given arising from Solicitor & Client
relationship and include documents from third party
If you are common Solicitor for both parties, all communication received would be protected for
both Clients. You cannot separate the information received as privileged to one and not the other.
R v King
The rule of evidence that legal professional privileges attaches to confidential
communications between a Solicitor and an expert but not to the expert opinion or the
chattels or documents on which he has based his opinion applies to criminal as well as
civil proceedings.
S.126 (1) Unless with his client’s express consent, an A&S shall not
disclose any communication made to him;
state the contents or condition of any document;
disclose advices given by him
in the course and for the purpose of his professional employment.
Illustration (a)
Defence of man committed an offence is not criminal purpose.
Proviso (b): showing that any crime or fraud has been committed since the
commencement of his employment.
Illustration (c)
Crime/ fraud committed after employment does not entitled legal privilege.
Explanation – The obligation stated in this section continues after the employment
has ceased.
S. 128 gives evidence at his own instance does not means consented to such disclosure;
and
calls any such advocate as a witness, not deemed to have consented to the disclosure
UNLESS he questions the advocate on matters which he would not be at liberty to
disclose.
S.129 No one shall be compelled to disclose to the court any confidential communication
between him and his legal professional adviser UNLESS
he offers himself as a witness, and
he may only be compelled to disclose any such communications necessary to
explain any evidence which he has given to the court.
Ambit of coverage
S.126(1)
communication made between A&S and client;
- Oral or writing
contents or condition of any document which the A&S; and
- conditions refer to nature of the documents, original, duplicate, triplicate; and
also, physical condition legible or in good form or in tatter
advices given by A&S
- oral or writing
in the course of his professional employment.
Waiver of privilege
UK MALAYSIA
Litigation privilege
S.10(1)(b) PACE 1984 S.126 EA1950
Communication made in relation to with or Between A&S and Client only
pending of litigation
Eg: Expert report PP v Yuvaraj
Litigation privilege accepted by S.3 of civil
law act 1956 subject to local circumstances
In-House-Counsel
Alfred Crompton’s case communications of in-house-counsel are
English Court of Appeal first paved the way not privileged.
for extension of legal advice privilege to
communications with in-house counsel.
Lord Denning: They [in-house counsel] are
regarded by the law as in every respect in
the same position as those who practise on
their own account. The only difference is
that they act for one client.