[10] In order that proper assessment may be made as to the propriety of a claim of litigation or
dominant purpose privilege it is necessary that sufficient particulars of the documents be given.
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Where a workplace accident has occurred, and the employer has statutory duties under sections 18 and 19 of the OHSA and simultaneously undertakes an internal investigation, claiming legal
privilege over all materials derived as part of that investigation, an inquiry is properly directed to a referee under Rule 6.45 to determine the
dominant purpose for the creation of each document or bundle of like documents in order to assess the claims of legal
privilege.
[53] The chambers judge erred in finding that the
dominant purpose of the internal investigation was in contemplation of litigation and therefore every document «created and / or collected» during the investigation is clothed with legal
privilege.
Only litigation
privilege applies a
dominant purpose test.
Unlike Hong Kong, Singapore does not apply a
dominant purpose test to legal advice
privilege.
Legal advice
privilege arises over confidential communications between lawyer and client that are created for the sole or
dominant purpose of giving or seeking legal advice, even if there is no actual or potential litigation.
For
purposes of defeating a defence of qualified
privilege malice means the defendant had a «
dominant and improper motive» to utter the publication.
Lawyers should be careful not to extend blanket «litigation
privilege» over documents; serious consideration should be given to whether the documentation was created with the
dominant purpose of actual or reasonably anticipated litigation, just as it is with documentary discovery under the Rules of Civil Procedure.
Litigation
privilege is a form of legal
privilege that can be claimed over documents and information created for the
dominant purpose of preparing for reasonably anticipated litigation — such as a prosecution under health and safety legislation.
In light of the Court of Appeal decision, additional steps could involve more specifically identifying documents and information over which
privilege could reasonably be asserted and materials that are unlikely to be considered privileged (because they were not created or prepared for the
dominant purpose of preparing for litigation or receiving legal advice).
The Judge ruled that litigation
privilege can only protect documents which are prepared with the sole or
dominant purpose of conducting litigation, and that it can not protect documents produced with the
purpose of enabling advice to be taken in connection with anticipated litigation.
Similarly, a plain reading of Bill 132 suggests an organization's right to claim litigation
privilege over documents created pursuant to the investigation will be diminished, because an investigation is arguably conducted for the
dominant purpose of compliance with Bill 132 and an organization's internal policies, rather than for the
dominant purpose of litigation.
The Court of Appeal has considered more recently the ambit of litigation
privilege in one of the many cases relating to the SFO's investigation into the Tchenguiz brothers, stressing the importance of the «
dominant purpose» test.58 (See also Chapter 31 on
privilege.)
The position in relation to interviews with third parties is less clear but an interview with a genuine third party is unlikely to attract legal advice
privilege, whereas all interviews conducted for the
dominant purpose of anticipated litigation ought to attract litigation
privilege.
Legal professional
privilege may be claimed over any communication between a client and their lawyer seeking or giving legal advice and over communications between a lawyer and a third party if litigation was in contemplation and the document or communication was created for the
dominant purpose of litigation.
Litigation
privilege (which was expressly not considered in the Walter Lilly case) is slightly different in that it applies to communications both between a lawyer and client, and between either the lawyer, the client and a third party, made for the
dominant purpose of litigation where litigation is pending, reasonably contemplated or existing.
That failure, in these circumstances, undermines the defendant's affidavit evidence, calls into question the
dominant purpose for the creation of Item 4.3, and is fatal to the defendants» claim for litigation
privilege over Item 4.3.
Litigation
privilege will only apply if litigation is reasonably contemplated when the investigation begins, and any communication or document is created for the
dominant purpose of that litigation.
The decision re-affirms that such documents are not covered by litigation
privilege and protected from disclosure unless it is proved that the
dominant purpose for their creation was in contemplation of litigation.
RBS argued that litigation
privilege applied: the
dominant purpose of the investigation and the documents was for RBS to defend itself against HMRC whose letter was effectively a pre-action letter before claim.
[58] For litigation
privilege to apply, however, the
dominant purpose of the interviews must be in reasonable contemplation of litigation.
Note, however, that in the ENRC decision, on the facts of that case it was determined that litigation
privilege would not apply to material created for the
dominant purpose of litigation where it was intended that the document would be shown to the other side.
Litigation
privilege protects confidential communications by clients or solicitors to a third party from the point that litigation is in contemplation, provided such communications are for the
dominant purpose of the litigation.
In order for communication to be protected by litigation
privilege, there must be current litigation or a reasonable contemplation of litigation and the
dominant purpose of the communication must be for use in the current or contemplated litigation.
This
privilege applies to all communications that are made in the course of or in contemplation of litigation where the
dominant purpose of the communication is the pending litigation.
For a communication to be subject to litigation
privilege, it must have been made for the
dominant purpose of being used in aid of, or obtaining, legal advice from a lawyer about actual or anticipated litigation.
The judges emphasised that where documents are prepared for multiple
purposes, it is incumbent on a party to establish that the litigation is the
dominant one when asserting
privilege.
Furthermore, where a party asserts litigation
privilege over documents with dual or multiple
purposes, they must take great care to establish that the litigation is the
dominant purpose in any evidence they provide in support of their claims.
litigation
privilege, for communications between lawyers and their clients, or either of them and a third party, for the
dominant purpose of seeking or obtaining legal advice, or preparing a party's case, in relation to contemplated litigation.
In determining that Jones's affidavit fell short of establishing the claim to
privilege, the judge noted that the affidavit did not make reference to any documents in support of its assertions as to
dominant purpose.
We now understand that confidential communications with third parties for the
dominant purpose of litigation are generally protected by litigation
privilege but not by solicitor - client
privilege [ii].