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1. THE LAW ON LEGAL PROFESSIONAL PRIVILEGE IN MALAYSIA: ANY ROOM FOR COMMON LAW?
[2002] 1 MLJ xcvii
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 THE LAW ON LEGAL PROFESSIONAL PRIVILEGE IN MALAYSIA: ANY
ROOM FOR COMMON LAW? [2002] 1 MLJ xcvii
Malayan Law Journal Articles

THE LAW ON LEGAL PROFESSIONAL PRIVILEGE IN MALAYSIA: ANY ROOM FOR

COMMON LAW?

See Eng Teong

LLB (Hons) King's College London Barrister-at-Law, Lincoln's Inn Advocate & Solicitor,
High Court of Malaya
This article ventures to examine the law in Malaysia in relation to legal professional privilege as
provided for in the Evidence Act 1950 (‘Evidence Act') to determine if the statute concerned
comprehensively deals with the law on legal professional privilege. The author is of the view that
the Evidence Act does not comprehensively deal with the law on legal professional privilege.
Legal professional privilege is conventionally divided into two limbs, the first limb covering
communications between solicitors and client for the purpose of seeking or obtaining legal
advice, whilst the second limb covering communications, whether oral or written, passing
between the client, or his solicitors, on the one hand, and some other third persons, not being a
party to the litigation, on the other hand. The first limb of legal professional privilege, whilst
owing its root to the common law, has since found its way to the statute. The second limb, on
the other hand, is largely based on the common law.1 More emphasis, however, will be placed
on the second limb in this article.

Examining the law aside, this article will also consider some recent cases reported in Malaysia
and Singapore in the light of the principles set out here. A few words will also be said about
some inter-related concepts such as ‘confidentiality' and ‘public interest' as well as the relevant
procedure in determining the issue of legal professional privilege.

Privileged communications are generally of a wider scope and include other privileges, such as
‘without prejudice' communications or public interest privilege, something without the scope of
this article. As such, wherever the word ‘privilege' appears in this article, it refers to the narrow
sense of ‘legal professional privilege', unless stated otherwise. The word ‘communications'
primarily means communications, whether oral or written, save where stated otherwise to
include other forms of documents. The general rule is that communications between clients and
solicitors are privileged from disclosure whilst documents passing between the parties to a
dispute are open to discovery.

Before homing in on the main topic of this article, a brief glance on the sources of law on
evidence in Malaysia may be of assistance for the purpose of identifying the basis, statutory,
common law or otherwise, on which this article is written.
Sources of law on evidence in Malaysia

In Malaysia, the law of evidence is primarily found in the Evidence Act. The Evidence Act is
modelled on the Indian Evidence Act 1872 which is a codified form of the English law.2 The
statute aside, the author is of the view that the common law has its role to play in the law of
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evidence in Malaysia, particularly in respect of the issue to be discussed in this article. Where
the Evidence Act is silent on any matter, it has been held that well-established principles of law
may be resorted to. As stated by Lord Diplock in PP v Yuvaraj:3

In Malaysia, as in India, the law of evidence has been embodied in a statutory code: the Evidence [Act]. In so far as any
part of the law relating to evidence is expressly dealt with by that [Act], the courts in Malaysia must give effect to the
relevant provisions of the [Act] whether or not they differ from the common law rule of evidence as applied by the English
courts. But no enactment can be fully comprehensive.…[U]pon matters about which it is silent or fails to be explicit it is to
be presumed that it was not the intention of the legislature to depart from well established principles of law.

The two limbs of the privilege

As indicated at the commencement of this article, the privilege is conventionally divided into two
limbs as follows.4
The first limb

The first limb of the privilege covers all communications, whether oral or written, between a
client and his agents, on the one hand, and the legal adviser, on the other hand for the purpose
of obtaining or giving legal advice. In cases falling within the first limb, it is immaterial whether
or not the possibility of litigation was contemplated when such communication took place.5
Rationale of the first limb

To understand the rationale of the first limb, one may borrow the words of Jessel MR in
Anderson v Bank of British Columbia:6

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only
be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to
defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so
absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to
the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the
claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that
the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the
privilege of the confidential agent), that he should be enabled properly to conduct his litigation.

Agents of client to the communications

Agents of a client stand very much in the same position as the client himself in relation to the
privilege,7 the question being one of determining whether the agent was acting as such.

Even with the existence of an agency, the privilege was held, in the case of Andersen v Bank of
British Columbia,8 not to attach to the documents in question. The plaintiff, Andersen & Co,
merchants in London, had been engaged in certain shipping transactions with Laidlaw, Gate &
Co, commission merchants at Portland, Oregon, in respect of which credit was granted, bills had
been drawn and proceeds lodged with the Bank of British Columbia. The plaintiff alleged that the
proceeds were appropriated by the bank in satisfaction of a balance claimed to be due to the
plaintiff from Laidlaw, Gate & Co. The plaintiff called at the London branch of the bank and
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stated generally the nature of the claim to such money. The manager of the bank in London
wrote to the manager of the Portland branch to make inquiries and in due course received a
letter from the manager of the Portland branch setting forth certain facts connected with the
account. A few days later, solicitors for the plaintiff made a formal demand on the bank
threatening litigation in default of compliance. The manager of the bank in London wrote to the
manager in Portland again asking for full particulars. The London bank manager received a
letter from the Portland branch in respect of his second request and privilege was claimed for
that letter. The Court of Appeal decided that the letter in question was not subject to the
privilege, primarily on the ground that it was a document prepared by an agent in compliance
with the request of its principal. In the words of Mellish LJ:

The question is whether a letter by a mercantile agent to his principal, giving information respecting what the agent has
actually done for and on account of the principal, is to be privileged because it is sent in compliance with the request of the
principal after the principal has been threatened with litigation respecting the matter on which he requires information. I am
clearly of the opinion that such a communication is not privileged.'9

The law on the privilege has since developed and it is highly doubtful, if the same facts as in
Andersen v Bank of British Columbia were to be relitigated, the outcome would be the same
again. It is clear that the letter in compliance with the second request of the London branch was
made or came into existence in contemplation of litigation or for the purpose of seeking legal
advice after the threat of litigation had arisen. Subsequent development has made it plain that in
such circumstances, the privilege10 attaches to such a document. This sentiment was echoed by
Bingham LJ in Ventouris v Mountain (The Italia Express)11 where his Lordship stated:

On modern principles (and unless the manager was disbelieved, which was not stated) I think it plain that the
representative's letter was privileged as a letter written (whether or not he knew it) for the purpose of laying before a
solicitor to obtain legal advice.12

A brief, and yet not insignificant observation may be made in respect of the words ‘ whether or
not he knew it' in the above passage. From these words, though it is debatable whether they
were so intended by Bingham LJ to have such an effect or not, it appears that so long as a
communication or document was requested by the client and so came into existence for the
purpose of the client seeking legal advice, the privilege attaches and it matters not whether the
maker, as opposed to the client or the legal adviser, of the communication or document knew
that it was for such a purpose. This observation has some correlation to the issue of determining
the dominant purpose as discussed below.
The first limb as embodied in the Evidence Act

Legal professional privilege, or rather the first limb thereof, is found in ss 126 to 129 of the
Evidence Act. A full restatement of the sections is necessary in order to see the scope of legal
professional privilege as provided in the Evidence Act.

s 126 Professional communications

(1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication
made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state
the contents or condition of any document with which he has become acquainted in the course and for the purpose of his
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professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such
employment:

Provided that nothing in this section shall protect from disclosure

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been
committed since the commencement of his employment.

(2) It is immaterial whether the attention of the advocate was or was not directed to the fact by or on behalf of his client.13

Section 127 extends the privilege to interpreters, and clerks or servants of the advocates.

s 128 Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented
thereby to such disclosure as is mentioned in s 126; and if any party to a suit or proceeding calls any such advocate as a
witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but
for such question he would not be at liberty to disclose.

s 129 Confidential communications with legal advisers

No one shall be compelled to disclose to the court any confidential communication which has taken place between him and
his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any
such communications as may appear to the court necessary to be known in order to explain any evidence which he has
given, but no others.

Scope of the statutory provisions

From the wording of s 126, it is clear that it covers communications from the client to the
advocate as well as the advice given by the advocate to client, thus covering the first limb of
legal professional privilege. However, s 126 also deals with the prohibition to disclose ‘the
contents or condition of any document with which he has become acquainted in the course and
for the purpose of his professional employment'. Arguably, the words ‘any document' can
include documents that the advocate has become acquainted, be it documents from the client or
documents from or made by some other persons14 for the purpose of assisting the client in
seeking legal advice or for the purpose of assisting the advocate in the advice to the client. If so,
s 126 would prima facieappear to transgress into the domain covered by the second limb of
legal professional privilege at common law, subject to the requirement that the documents from
the third persons must have been prepared or come into existence for the purpose of
preparation for the anticipated or pending litigation. There seems to be no direct judicial
pronouncement in Malaysia on this issue. The author is of the view that by the express words
‘the contents or condition of', what is prohibited from disclosure is merely the contents or
condition of such documents as the advocate has acquainted himself with. On the issue of the
disclosure of a document itself, it is governed by the general rules on discovery between the
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parties to litigation. If such a document is prepared by some other persons or comes into
existence at the instance of such persons, the issue as to whether such a document is privileged
or not would be governed by the second limb of the legal professional privilege.

In addition to the two provisos in s 126, s 129 further curtails the privilege by giving the court a
wide discretion, restricted only by the need to explain the evidence already given by the client, to
compel disclosure of any confidential communications between the client and the solicitors that
appear to the court to be necessary. Section 126 aside, ss 128–129 seem to deal with
communications between client and solicitors, and as such, do not seem to deal with the second
limb of legal professional privilege.15
Comparison of s 126 with the common law

In Balabel & Anor v Air India,16 the English Court of Appeal was afforded an opportunity to
restate the scope of the first limb of legal professional privilege at common law. In that case,
there was a dispute in relation to an alleged grant of an underlease. To prove such an
underlease, the plaintiffs sought from the defendant documents under three heads:

(1) Communications between the defendant and its solicitors other than those seeking or
giving legal advice;
(2) Drafts, working papers, attendance notes and memoranda of the defendant's solicitors
relating to the proposed new underlease;
(3) Internal communications of the defendant other than those seeking advice from their
Indian legal advisers.

The defendant's solicitors declined to disclose those documents on the ground of legal
professional privilege. Having gone through a series of cases, Taylor LJ, delivering the judgment
of the court, took the view that:

These cases undoubtedly show a divergence of judicial authority as to the scope of the privilege. It is therefore important to
go back to the basic principle justifying such privilege as an exception to the general rule that all relevant evidence is
discoverable and admissible. The principle is that a client should be able to obtain legal advice in confidence.

Taylor LJ went on to quote the dictum of Jessel MR in Anderson v Bank of British Columbia17
before his Lordship concluded that:

Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business.
Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and
given in confidence. In my judgment, therefore, the test is whether the communication or other document was made
confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches
to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it
does not follow that all other communications between them lack privilege. In most solicitor and client relationships,
especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or
small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The
negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the
solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and
given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please
advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation
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that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is
not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the
relevant legal context.18

From the dictum of Taylor LJ it is clear that at common law, the first limb of legal professional
privilege extends only to such communications and documents passing between client and
solicitors for the purpose of seeking or obtaining legal advice. However, s 126 of the Evidence
Act has taken a slightly different, if not wider, approach. By prescribing ‘any communication
made to [the advocate] in the course and for the purpose of his employment as such advocate' it
seems that it matters not whether the communication passing between the advocate and the
client is meant for seeking or obtaining legal advice. So long as the communication passed
between them in the course of and for the purpose of the employment of the advocate as such,
the privilege attaches by virtue of s 126.

Another significance to be distilled from Taylor LJ's dictum above is that legal professional
privilege attaches throughout the continuum of communication at various stages, of course, so
long as the communication was meant for the purpose of seeking or obtaining legal advice, and
that advice includes, not merely the law, but what a client should prudently and sensibly do in a
particular situation. This point, though significant at common law, may not be of significance in
the Malaysian context as s 126 appears to give a much wider privilege in relation to
communication between client and solicitors.
The second limb

If the Evidence Act merely deals with communications between solicitors and the client, what
would be the relevant legal principles in relation to the second limb of legal professional
privilege? The second limb to the privilege covers communications, whether oral or written,
passing between the client, or his solicitors, and some other persons, not being a party to the
litigation. The second limb is found only in cases decided according to the common law. Since
such communications can include those of either the client, or the solicitors acting for the client,
the second limb of the privilege has sometimes been conveniently broken down to two sub-
limbs. Let us take a glance at the rationale underlying the second limb of legal professional
privilege before taking a closer look at the principles of law governing the second limb.
Rationale of the second limb

A good place to begin in the quest for the basis to justify such a privilege may be found in the
judgment of James LJ in Andersen v Bank of British Columbia19 where his Lordship stated:

[B]ut looking at the dicta and judgments cited, I think that they possibly all be based upon this, which is an intelligible
principle of production, namely, that you have no right to see your adversary's brief; and, as you have no right to see your
adversary's brief, you have no right to see the materials, that which comes into existence simply as the materials, for your
adversary's brief.20

Qualifications to the second limb

There are, however, a few qualifications to the second limb of the privilege, and they are, the
communications must be prepared for, or at their inception have come into existence with, the
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dominant purpose of submission to a legal adviser in connection with pending21 or anticipated22

litigation.23 It is not necessary that the communications should have come into existence at the
instance of the lawyer. It is sufficient if they have come into existence at the instance of the party
himself with the dominant purpose of being used in the anticipated litigation: Buttes Gas and Oil
Co v Hammer & Ors (No 3).24 The qualifications will be discussed in the ensuing paragraphs.
Actual or anticipated litigation

In Wheeler v Le Marchant,25 the plaintiff sought specific performance of an agreement under

which the defendants were to grant a lease of certain land to the plaintiff. In the course of
discovery, the defendants objected to the production of inter alia confidential correspondence
between the defendants and their former solicitors and their present solicitors and their estate
agent and surveyor and their present estate agent and surveyor, and between such solicitors
and such third parties. The Court of Appeal held that such communications were not privileged
for they came into existence for the purpose of obtaining more facts in order to enable the
solicitors to give better advice to the client, where no dispute had arisen. In the words of Jessel
MR:

But what we are asked to protect here is this. The solicitor, being consulted in a matter as to which no dispute has arisen,
thinks he would like to know some further facts before giving his advice, and applies to a surveyor to tell him what the state
of a given property is, and it is said that the information given ought to be protected because it is desired or required by the
solicitor in order to enable him the better to give legal advice. It appears to me that to give such protection would not only
extend the rule beyond what has been previously laid down, but beyond what necessity warrants.…It seems to me we
ought not carry the rule any further than it has been carried.26

An observation, not of insignificance to practitioners, made by Cotton LJ was:

In my opinion, the plaintiff is entitled to have an order for production of the documents as to which the contest has arisen,
except such, if any, as the defendants shall state by affidavit to have been prepared confidentially after dispute had arisen
between the plaintiff and defendants and for the purpose of obtaining information, evidence, or legal advice with reference
to litigation existing or contemplated between the parties to this action.27

Documents which came into existence for more than one purpose

Some documents may well have been prepared or come into existence for more than the mere
purpose of seeking legal advice. In such a situation, the issue is whether such a document is
subject to the privilege or is the privilege dependant on the document in question having come
into existence for the sole purpose of seeking legal advice.

There are divergent views in the Commonwealth. The English courts have preferred the test of
‘dominant purpose' established in Waugh v British Railways Board.28 The New Zealand courts
have since the case of Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart29
adopted the ‘dominant purpose' test. The Australian remains in favour of the stricter ‘sole
purpose' test as decided by the High Court of Australia in Grant v Downs.30 It does not appear
that the issue on the second limb of legal professional privilege has been litigated upon in
Singapore till a few years ago in the case of Brink's Inc & Anor v Singapore Airlines Ltd & Anor31
where the Singapore Court of Appeal followed the ‘dominant purpose' test in Waugh v British
Railways Board.32 As far as Malaysia is concerned, it does not appear that the issue of the
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second limb of legal professional privilege has been litigated, perhaps, mainly due to the
misapprehension that ss 126–129 of the Evidence Act covers all aspects of legal professional
privilege and, as such, the statutory provisions are to be solely resorted to whenever a dispute
on legal professional privilege arises.

A perusal of the facts of Waugh v British Railways Board may be helpful in understanding the
meaning of ‘dominant purpose'. In that case, the widow of the deceased (who was an employee
of the Board) claimed damages against the Board in respect of the death of the deceased,
alleging that a collision between the two of the Board's locomotives had been caused by the
negligence of the Board, as a result of which the deceased died. By their defence, the Board
denied negligence and alleged that the collision had been caused or contributed to by the
deceased's own negligence. The plaintiff sought discovery of an internal inquiry report made by
two officers of the Board two days after the accident, but the Board refused on the ground of
legal professional privilege. From the judgment of Lord Wilberforce it is clear that the report in
question was the second report in a series of three reports prepared when there was an
accident. The report in question was a joint internal report incorporating statements of witnesses
prepared soon after the first report which was prepared on the day of the accident.33 The report
was prepared for a dual purpose: for railway operation and safety purposes and for the purpose
of obtaining legal advice in anticipation of litigation, both being described as of equal rank or
weight though the former was more immediate than the latter.34 The House of Lords
unanimously ruled in favour of the test of the ‘dominant purpose' as opposed to the stricter test
of the ‘sole purpose' favoured by the High Court of Australia in Grant v Downs35 and ordered the
disclosure of the report.
Determination of the dominant purpose

In Guinness Peat Properties Ltd & Ors v Fitzroy Robinson Partnership (a firm)36 the first plaintiff,
building developers, engaged the defendant, a firm of architects, to design for the development
of a building. Upon completion of the work, it appeared that there was a lack of natural light and
in consequence of that, the plaintiffs37 sued the defendant. The issue before the Court of Appeal
was in relation to the claim of privilege by the defendant to a letter dated 27 June 1984 to the
insurers' agent informing the insurers of the potential claim. The letter, referred to in the
judgment of Slade LJ as the ‘McLeish letter' was inadvertently disclosed to the plaintiffs'
solicitors during the discovery. According to Mr McLeish who wrote the letter:

After discussing with two of my partners they agreed with me that this matter should be referred to our Insurers via the
ABS Insurance Agency Limited as a ‘notification of claim made against the Partnership' pursuant to condition 4 of the said
policy. Accordingly I wrote the letter of the 27 June 1984 to the ABS Insurance Agency Limited.38

In asserting the claim for privilege, the defendant contended that though it was the defendant
who brought the McLeish letter into existence, the defendant did so on the requirement of the
insurers who had the real interest in seeing that the claim was defended. In those
circumstances, the McLeish letter owed its genesis to the dominant purpose that it should be
used for the purpose of obtaining legal advice and in any ensuing litigation. The Court of Appeal,
in accepting the defendant's contention, held that in considering the purpose for which a
document came into existence regard must be paid not only to the intention of the composer of
the document39 but also to all the evidence, which would include the intention of those who
procured or called for the document,40 and in the instant case, the intention of the insurers was
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relevant. The court further held that if two parties with a common interest and common solicitor
exchange information for the dominant purpose of informing each other of the facts, or the
issues, or advice received, or of obtaining legal advice in respect of contemplated or pending
litigation, the documents or copies containing that information are privileged from production in
the hands of each, and applying this principle to the facts of the case, the defendant was able to
claim privilege despite having lost it.41

In Re Highgate Traders Ltd,42 the English Court of Appeal in upholding a claim for privilege in
respect of certain reports procured by an insurance company from specialists in fire
investigations and others, in a case where arson was suspected, regarded as crucially relevant
the purpose of the insurers in instigating the reports, not the intention of the writers of the reports
themselves.43

It is further to be noted that where more than one dominant purpose is alleged or where the
affidavit in support of the claim to privilege asserts a ground which is contrary to other evidence,
the court is entitled to go behind the affidavit and ascertain for itself the real dominant purpose.44
Documents in existence prior to litigation

A common dispute amongst litigants is whether communications or documents which, already

in existence, were handed to their solicitors are privileged. It has been held that where
communications or documents are already in existence aliunde, the mere fact of their being
handed to a solicitor for the purpose of conducting an action cannot create a privilege; but
where communications or documents are brought into existence by a solicitor or through a
solicitor for the purposes of consultation with such solicitor, with a view to his giving professional
advice or to the conduct of an action, these are in the nature of professional communications
and as such are privileged.45

In Ventouris v Mountain (The Italia Express),46 the vessel, Italia Express, was subject of a series
of violent explosions which made her a total loss. The plaintiff was the owner of the vessel and
claimed on her war risk underwriters, who rejected the claim. In the suit for the insured value of
the vessel, the defendant averred, amongst other things, with considerable particularity that the
explosions were caused or connived at by the plaintiff himself. The defence relied heavily on
information said to have been given by a cousin of the plaintiff, referred to as GDV. It is alleged
that GDV was initially party to the plan to destroy the vessel but was at a later stage excluded
from it. The plaintiff sought further and better discovery of various classes of documents. The
defendant asserted legal professional privilege, in particular, one class of ‘all documents
received by or on behalf of Underwriters from GDV'. The ground on which the privilege was
claimed was that the categories of documents in issue all related to documents obtained by the
defendant's solicitors after the date the defendant's solicitors were instructed for the purpose of
the anticipated or pending litigation, that whatever the original purpose for which they had been
brought into existence, they were all obtained by the defendant's solicitors from GDV for the
purposes of assisting in the anticipated or pending litigation, and that they were only in the
defendant's custody, possession or power by virtue of their having been obtained in that
capacity.47 The judge at the first instance upheld the claim of privilege. The plaintiff appealed and
the issue for the Court of Appeal was:
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[Can] legal professional privilege be claimed for [original] documents which were not previously in the possession, custody
or power of a party to actual or contemplated litigation, which have not come into existence for the purposes of that
litigation, but which have been obtained by the solicitors of that party for that purpose?48

Bingham LJ, whose judgment the other two members of the bench agreed, having gone
through a series of decided cases, concluded that in such circumstances, the documents in
question were not protected by legal professional privilege on the basis that, in principle, a pre-
existing document obtained by a solicitor for the purposes of litigation should not be privileged
from production and inspection, save perhaps in the Lyell v Kennedy49 situation which, according
to his Lordship, ‘in an age of indiscriminate photocopying, cannot often occur'.50
Some instances for reflection

Having set out the relevant principles in relation to legal professional privilege, it is perhaps the
ideal moment to consider certain cases decided recently.

In Sykt Chin Seng Supermarket v United Continental Insurance Sdn Bhd,51 the plaintiff claimed
on the insurance policy for loss and damage suffered by the plaintiff when the premises of the
plaintiff were flooded in November 1979. The defendant insurers denied liability and quantum. In
the course of the trial, an application arose by which the plaintiff sought an order that the
defendant produce an adjuster's report prepared on the instructions of the defendant to
determine the plaintiff's claim. The defendant objected to the production of the adjuster's report
on the ground of privilege and prejudice to the defendant. The learned judge found on the facts
that the adjuster's report was prepared ‘well before litigation was even contemplated' and ruled,
inter alia, that it was thus not privileged under s 126 of the Evidence Act. From the report it is
unclear if any arguments were advanced in respect of the difference between the two limbs of
legal professional privilege and whether the adjuster's report came within the scope of ‘the
contents or condition of any document with which he has become acquainted in the course and
for the purpose of his professional employment'. The author is of the view that the adjuster's
report, as it is common in the insurance industry, was prepared at the instance of the relevant
adjuster after the flood. As such, the adjuster's report prima faciecomes within the second limb
of legal professional privilege, ie a document prepared by some third persons for the client. The
sole issue for the determination of the court would then be whether the adjuster's report was
prepared for the purpose of enabling the defendant insurers to obtain legal advice when
litigation was contemplated or anticipated. If the adjuster's report was prepared for more than
one purpose, such as for the purpose of obtaining legal advice for the defendant as well as
enabling the defendant to assess the damage or report to some statutory authorities, then the
court would have to determine whether the purpose of obtaining legal advice was the dominant
purpose, in accordance with the principle laid down in Waugh v British Railways Board,52
Guinness Peat Properties Ltd & Ors v Fitzroy Robinson Partnership (a firm)53 and Re Highgate
Traders Ltd.54 On the facts, as the learned judge has found, the adjuster's report was prepared
‘well before litigation was even contemplated', therefore, it would not be covered by legal
professional privilege and as such would be liable to be produced to the court. Hence, s 126 of
the Evidence Act should have played no role indetermining the claim to privilege of the
adjuster's report.55

In Cheong Heng Loong Goldsmiths (KL) Sdn Bhd v Chan Kim Swi (Capital Insurance Bhd,
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garnishee),56 the material facts for the purpose of determining the issue of legal professional
privilege may be briefly stated. There was an insurance policy issued by Capital Insurance Bhd
(the defendant in the judgment) in favour of Chan Kim Swi (the second plaintiff in the judgment)
by which the defendant agreed to insure and indemnify the second plaintiff against, inter alia,
loss arising from any hold-up or robbery of stock and merchandise of the second plaintiff's
business and bank notes whether the same be the property of the second plaintiff or entrusted
to him for any purpose whatsoever in the insured sum. A claim form was submitted by the
second plaintiff and a firm of adjusters duly submitted a report to the defendant in respect of the
alleged robbery. The trial was ordered pursuant to O 4957 r 5 of the Rules of the High Court 1980
and the issue for the trial was whether there was any debt due or accruing due and if so what
was the amount under the policy from the defendant to the second plaintiff at the time the
garnishee order nisi was served. The first plaintiff would only be able to garnish such sum due
from the defendant to the second plaintiff under the policy if the first plaintiff could prove the loss
of the second plaintiff was covered by the policy and therefore the defendant was liable under
the policy. The second plaintiff having disappeared, the first plaintiff stepped into the shoes of
the second plaintiff in proving the loss. To prove the robbery, the first plaintiff relied on a report
entitled ‘Final Report on Armed Robbery Loss' prepared by the adjusters who were instructed by
the solicitors58 for the defendant. The defendant objected to the production of the adjusters'
report on the ground of privilege. The learned judge after hearing submissions for both parties
and upon a close scrutiny of the report held that the report was not ‘a communication between
client and solicitor as to attract the protection of ss 126–129 of the Evidence Act 1950'.59 It is
clear that the adjusters' report was a document prepared by a third person for the client, the
insurers, and as such, the privilege, if any, would be the one under the second limb. As such, ss
126–129 which deal with the first limb of the privilege should have played no role in determining
the discoverability of the adjusters' report.60 It does not appear from the judgment that the report
was prepared, or came into existence, for the dominant purpose of submissions to a legal
adviser in connection with pending or anticipated litigation.61 Therefore, upon that assumption,
the adjusters' report would not be privileged and would be liable to be disclosed.

Before leaving Cheong Heng Loong Goldsmiths (KL) Sdn Bhd v Chan Kim Swi (Capital
Insurance Bhd, garnishee), there is another observation that merits some extrapolation. Further
down the judgment,62 the judge stated that the report ‘was compiled at the request of the
defendant'. Thus, it is unclear as to whether the report was prepared at the instance of the
defendant insurers or the solicitors for the defendant insurers. This slight factual difference may
well bear some legal difference that could well determine the claim to privilege. In practice,
insurers will invariably instruct adjusters to prepare a report, particularly on a major claim, and in
some instances, there may well be several reports prepared, some coming into existence after
litigation is anticipated, such as after the service of a demand by the insured's solicitors, and
upon the advice of solicitors for the insurers. On the one hand, it is arguable that in a major
claim, there may be more than one purpose for the preparation of the adjusters' report, such as
to enable the insurers to determine the cause of the loss and the extent of the loss, or to
determine whether to accept or repudiate liability, as well as to enable the insurers to seek legal
advice in contemplation of a possible legal claim by the insured in the event of repudiation of
liability. In such circumstances, upon the principle in Waugh v British Railways Board,63 one has
to determine the dominant purpose for the preparation of the report, the process of determining
such a dominant purpose being guided by the principles laid down in Guinness Peat Properties
Ltd & Ors v Fitzroy Robinson Partnership (a firm)64 and Re Highgate Traders Ltd.65 It is also
invariable, particularly in a major claim, that there is a preliminary report by the adjusters
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followed by a few other reports or the final report. In such circumstances, the privilege may
attach to some but not all reports, the dividing line being determined by the time when litigation
was anticipated or contemplated. Even if a follow-up adjusters' report is prepared upon the
instructions or advice of solicitors for the insurers, the privilege may nevertheless not attach as
the report may well merely serve the purpose of enabling the solicitors to know more facts in
order to better advise the insurers. In such circumstances, the principle enunciated in Wheeler v
Le Marchant66 would apply to exclude the privilege and to render the report discoverable.

An instance in which an adjusters' report was held not privileged and hence discoverable may
be seen in Brink's Inc & Anor v Singapore Airlines Ltd & Anor.67 Incidentally, the case concerned
an incident that took place in Penang, Malaysia. The appellants in that case provided security
services for escorting some 50kg of gold bars worth over half-a-million US Dollars and delivered
the same to Singapore Airlines Ltd, the first respondent, for carriage by air to Bayan Lepas
Airport in Penang, Malaysia on 6 January 1993. Upon arrival, the gold bars were received by
Malaysian Airlines System Bhd, the second respondent, who were the ground handling agents.
The gold bars were taken to the strongroom office in the cargo complex where they were
temporarily placed on a table before they could be moved into the vault where they were to be
stored. It was at that moment that three armed robbers entered the strongroom, tied up the
security guards and made off with the gold bars. There had been no trace of the robbers or their
loot till the day of the interlocutory judgment on discovery of the adjusters' report. The adjusters'
report was dated 3 March 1993. The claim of the cargo owners having been settled by the
insurers for the first appellants, the cause of action was assigned to the appellants who
commenced an action against the respondents for the loss. The respondents denied liability. In
the course of discovery, objection was taken in relation to the disclosure of an adjusters' report
commissioned by the first respondent and confirmed by the insurers. In speaking for reports
usually prepared in the aftermath of an incident, Karthigesu JA had this to say:

The privilege clearly should not attach to all professional advice taken merely on the basis that it is normal or procedural for
the insurer to instruct such reports to be made in the immediate aftermath of an incident and for such reports to be
forwarded to their solicitors.68

On the evidence in support of the claim to privilege, the court took the view that:

16 …In our view, the evidence did raise a strong possibility that Beaumont & Sons were generally retained as legal
advisers to the insurers. However, there was insufficient evidence to find that the [adjusters'] report had been specifically
commissioned to aid Beaumont & Sons, or for that matter any other legal adviser, in providing legal advice. Indeed, on the
evidence before us, we could not agree with the finding that Beaumont & Sons clearly would not have been able to advise
without the report.

17 The de Souza affidavit appeared to us to suggest that because of the size of the loss and the fact that it was caused by
robbery, the respondents believed that litigation would be in reasonable prospect. Was this a reasonable supposition of the
probability of litigation on the facts?

18 …The de Souza affidavit merely alluded to the practice for obtaining a report on the cause of an incident where the
quantum was potentially high.The fact that the robbery of the gold bars caused a substantial loss should not, [Counsel for
the appellants] contended, immediately permit the inference that litigation was in reasonable prospect and therefore the
learned judge had erred in holding that the value of the potential claim was an important factor in deciding whether
assessors and solicitors should be engaged.
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19 Our view on this issue was that while the size of any claim is understandably an important factor in determining whether
or not to seek legal advice, the material consideration must be whether on the facts the value of the gold bars stolen
elevated an average possibility of a claim to a level that litigation was a reasonable prospect. … We were satisfied from the
evidence before us that the appellants had as yet not intimated a claim at the time the report was made, which was some 2
months after the incident.69

The court went on to hold that the adjusters' report was not obtained for the dominant purpose
of obtaining legal advice at a time when litigation was in reasonable prospect.
Confidentiality

In reading cases on legal professional privilege, one cannot lose sight of the notion of
confidentiality being discussed in relation to legal professional privilege. The issue is: Is
confidentiality per se a sufficient ground justifying documents from being withheld from
disclosure? Is confidentiality per se a ground on its own or merely part of the notion of privilege?
In Wheeler v Le Marchant70 Jessel MR considered the notion of confidentiality of
communications as part of the overall concept of the privilege of client communications. In
Ventouris v Mountain71 Bingham LJ did the same.72 However, the time may come when
confidentiality will be recognized as a separate head of privilege.
Public policy

Confidentiality aside, legal professional privilege has been more often than not determined in
the name of, if not for the sake of, public policy. Is public policy per se a sufficient ground
justifying documents being withheld from disclosure? Is public policy per se a ground on its own
or merely part of the notion of privilege? In Ventouris v Mountain,73 Bingham LJ considered the
notion of public policy of communications as part of the overall notion of the privilege of client
communications. Will the time come when public policy will be recognized as a separate head
of privilege, distinct from the notion of ‘public interest privilege', or in its old name, ‘the Crown
privilege' at common law?
Application of legal principles or exercise of judicial discretion?

One query not of insignificance to the legal profession is whether the determination of the issue
of the second limb of legal professional privilege is one of the application of well-established
common law principles, in which event the court should apply the legal principles as such to the
facts of the case before him and decide whether as a matter of law the privilege attaches, or
alternatively, a matter of an exercise of the judicial discretion, in which event the court retains its
discretion whether to admit the communications in issue despite the applicability of the legal
principles.

The author is of the view that the former position is to be preferred for, unless other legal
principles are applicable which give the court a discretion whether to admit or expunge the
communications in issue, the issue at stake is essentially a matter of judicial application of legal
principles on the facts of a particular case, though in making a finding, particularly in the context
of the second limb of the privilege, the judge is at liberty to make a factual finding, as opposed to
exercise his judicial discretion, whether the communications in question came into existence for
the dominant purpose of obtaining legal advice. In this respect, it may be pertinent to refer to the
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words of Bingham LJ in Ventouris v Mountain74 where, in considering the issue of the privilege,
his Lordship stated ‘[a]pproaching the issue as one of pure principle…' though it is debatable
that the same phrase may well be read out of its context.
Determination of privilege: Procedure

Having gone through the law on legal professional privilege, a few words should be said about
the procedure in relation to a claim to privilege.
Burden to justify the privilege

It is settled law that the burden to refuse disclosure on the basis of the privilege lies on the party
asserting such a privilege.75
Procedure

It is clear from the cases above that claims to legal professional privilege more often than not
arise in the process of discovery. In Malaysia, discovery of documents is governed by O 24 of
the Rules of the High Court 1980. Rules 2 and 3 provide for general discovery, r 7 provides for
specific discovery of particular documents, rr 8 to 11 deal with production of documents for
inspection, whilst r 12 deals with production of documents to the court. Whilst r 4 gives the court
a discretion to determine ‘any issue or question…before any discovery of documents is made by
the parties', there is no express provision for a claim of privilege to be determined first under r 4.
However, a claim to privilege is provided in r 13(2) which states:

Where on an application under this Order [ie O 24] for production of any document for inspection or to the court privilege
from such production is claimed or objection is made to such production on any other ground, the court may inspect the
document for the purpose of deciding whether the claim or objection is valid.

Where there is such a claim to privilege and the claim is disputed, the court is empowered to
look behind the affidavits and examine the documents or communications in issue to determine
for itself whether they are privileged.76
Closing: Balancing two competing interests

Having examined the legal principles as propounded in the cases referred to above, it is
obvious that the central issue concerning legal professional privilege is essentially a matter of
balancing two competing interests, the need for full discovery on the one hand, and the right of a
party against disclosing privileged communications on the other hand.77 As Bingham LJ put it:

Our system of civil procedure is founded on the rule that the interests of justice are best served if parties to litigation are
obliged to disclose and produce for the other party's inspection all documents in their possession, custody or power relating
to the issues in the action.…[D]isclosure being generally regarded as beneficial, any exception has to be justified as serving
the public interest which gives rise to the exception. As Lord Edmund-Davies said in Waugh v British Railways Board [1979]
2 All ER 1169 at 1182, [1980] AC 521 at 543:

‘…we should start from the basis that the public interest is, on balance, best served by rigidly confining within narrow limits
the cases where material relevant to litigation may be lawfully withheld. Justice is better served by candour than by
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suppression. For, as it was put in the Grant v Downs [1976] 135 CLR 674 at 686 majority judgment, ‘privilege … detracts
from the fairness of the trial by denying a party access to relevant documents or at least subjecting him to surprise'.'78

To conclude this article, nothing can perhaps be better achieved than to quote the much
enlightening dictum of Lord Taylor of Gosforth CJ in R v Derby Magistrates' Court, ex p B79 on
the fundamental significance the law attaches to legal professional privilege:

The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal
professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a
particular case. It is a fundamental condition on which the administration of justice as a whole rests.

1 See Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma & Ceylon, 15th Ed (Nagpur: Wadhwa & Co Law
Publishers, 1999) Vol 2, ‘Commentary' at p 2048 et seq, in particular at p 2049. Incidentally, most of the textbooks on the law of
evidence in Malaysia, particularly on the issue of legal professional privilege, consist of annotation of the Evidence Act 1950 and
do not seem to draw a clear distinction between the two limbs of the legal professional privilege.
2 Looi Wooi Saik v PP[1962] MLJ 337 at p 339 (Court of Appeal).
3 [1969] 2 MLJ 89 at p 91 (Privy Council).
4 As per Lord Edmund-Davies in Waugh v British Railways Board [1980] AC 521 at p 541G–H; see also Guinness Peat
Properties Ltd & Ors v Fitzroy Robinson Partnership (a firm) [1987] 2 All ER 716 at p 721f (English Court of Appeal).
5Per Lord Edmund-Davies in Waugh v British Railways Board [1979] 2 All ER 1169 at p 1181, [1980] AC 521 at p 541–2; Buttes
Gas and Oil Co v Hammer (No 3) [1980] 3 All ER 475 at p 484, [1981] QB 223 at p 243–244.
6 (1876) 2 Ch D 644 at p 648–649.
7 Wheeler v Le Marchant (1881) 17 Ch D 675 (English Court of Appeal) at pp 682 and 684.
8 [1874–80] All ER Rep 396.
9 Ibid at p 400B.
10 The second limb of it.
11 [1991] 3 All ER 472 (English Court of Appeal).
12 Ibid, at p 477b.
13Emphasis added by the author. There are an explanation and three illustrations to s 126 but they are omitted here, save
where their relevance is called for.
14The word ‘person' is used here to distinguish it from the word ‘party'. The former refers to someone not a party to litigation
whilst the latter refers to a party to litigation.
15See Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma & Ceylon, 15th Ed (Nagpur: Wadhwa & Co Law
Publishers, 1999) Vol 2 ‘Commentary' at p 2048 et seq, in particular at p 2049.
16 [1988] 2 All ER 246.
17 (1876) 2 Ch D 644 at p 648–649, as quoted under the sub-heading ‘Rationale of the first limb' above.
18 [1988] 2 All ER 246 at p 254g–j. Emphasis added by the author.
19 [1874–80] All ER Rep 396 at p 399C.
20 Approved by the House of Lords in Waugh v British Railways Board [1979] 2 All ER 1169 at p 1177, [1980] AC 521 at p 537.
21 Some authorities have used the word ‘actual' though it appears that the word ‘pending' is more often preferred.
22Some judgments have used the word ‘contemplated'. Though it is debatable that the word ‘contemplated' is wider than the
word ‘anticipated', or vice versa, the difference does not appear to have been taken as anything other than merely semantic.
23 Wheeler v Le Marchant (1881) 17 Ch D 675 at p 682 (a case preceding the notion of ‘dominant purpose'); Waugh v British
Railways Board [1980] AC 521 at p 542C; Buttes Gas and Oil Co v Hammer (No 3)[1980] 3 All ER 475 at p 484, [1981] QB 223
at p 243–244; Ventouris v Mountain (The Italia Express) [1991] 3 All ER 472 at pp 476a, 481h.
24 [1980] 3 All ER 475 at p 484, [1981] QB 223 at p 243–244.
25 (1881) 17 Ch D 675.
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26 Ibid, at p 682.
27 Ibid, at p 685 (Emphasis added by the author).
28 [1979] 2 All ER 1169, [1980] AC 521.
29 [1985] 1 NZLR 596, at p 602.
30 [1976] 135 CLR 674.
31 [1998] 2 SLR 657, at pp 660C and 664E.
32 [1979] 2 All ER 1169, [1980] AC 521.
33 [1980] AC 521 at p 529H.
34 Ibid, at p 531B.
35 [1976] 135 CLR 674.
36 [1987] 2 All ER 716, [1987] 1 WLR 1027.
37 The second plaintiff being the tenant of the relevant building.
38 [1987] 2 All ER 716 at p 719e.
39 Which according to Bingham LJ in Ventouris v Mountain (The Italia Express) [1991] 3 All ER 472 at p 482h seemed to prevail
in Andersen v Bank of British Columbia.
40 [1987] 2 All ER 716 at p 723e–f. Where Barwick CJ's formulation of the test in Grant v Downs referring to the dominant
purpose of its author ‘or of the person or authority under whose direction, whether particular or general, it has produced or
brought into existence' was referred with implicit approval. Referred in Ventouris v Mountain (The Italia Express)[1991] 3 All ER
472 at p 482h. Slade LJ's view was followed in Brink's Inc & Anor v Singapore Airlines Ltd & Anor [1998] 2 SLR 657 at p 660I
(Singapore Court of Appeal).
41 [1987] 2 All ER 716 at p 725e. Dictum of Brightman LJ in Butts Gas & Oil Co v Hammer (No 3)[1980] 3 All ER 475 at p 502,
[1981] QB 223 at p 267 followed.
42 [1984] BCLC 151, at p 173.
43Referred to and accepted as correct in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 2 All ER
716 at p 723j.
44Neilson v Laugharne[1981] 1 All ER 829, [1981] 1 QB 736 followed by the Court of Appeal in Re Highgate Traders Ltd [1984]
BCLC 151 at p 166b–f.
45Pearce v Foster(1885) 15 QBD 114 at p 118-9, adopted by the Court of Appeal in Dubai Bank Ltd v Galadari[1989] 3 All ER
769, [1990] Ch 98.
46 [1991] 3 All ER 472.
47 Ibid, at p 475a.
48 Ibid, at p 475d.
49 (1884) 27 Ch 1, [1881–5] All ER Rep 814.
50 [1991] 3 All ER 472 at p 484j.
51 [1997] 5 MLJ 121 (High Court of Malaya).
52 [1980] AC 521.
53 [1987] 2 All ER 716, [1987] 1 WLR 1027.
54 [1984] BCLC 151 at p 173.
55Cf Augustine Paul, Evidence Practice & Procedure, second ed. (Kuala Lumpur: Malayan Law Journal Sdn Bhd, 2000), at p
905.
56 [1997] 5 MLJ 191 (High Court of Malaya).
57 Garnishee proceedings.
58 See the next paragraph. There seems to be a conflict of facts as to whether the adjusters' report was prepared upon the
instructions of the insurers or the solicitors for the insurers.
59 [1997] 5 MLJ 191 at p 197D.
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60Cf Augustine Paul, Evidence Practice & Procedure, second ed (Kuala Lumpur: Malayan Law Journal Sdn Bhd, 2000) at p
907.
61 Wheeler v Le Marchant (1881) 17 Ch D 675 at p 682 (a case preceding the notion of ‘dominant purpose'); Waugh v British
Railways Board [1980] AC 521 at p 542C; Buttes Gas and Oil Co v Hammer (No 3)[1980] 3 All ER 475 at 484, [1981] QB 223 at
p 243–244; Ventouris v Mountain (The Italia Express) [1991] 3 All ER 472 at pp 476a, 481h.
62 [1997] 5 MLJ 191 (High Court of Malaya) at p 197G.
63 [1979] 2 All ER 1169, [1980] AC 521.
64 [1987] 2 All ER 716, [1987] 1 WLR 1027.
65 [1984] BCLC 151 at p 173.
66 (1881) 17 Ch D 675.
67 [1998] 2 SLR 657 (Singapore Court of Appeal).
68 Ibid, at p 660E.
69 Ibid, at pp 663A–664D.
70 (1881) 17 Ch D 675 at p 681.
71 [1991] 3 All ER 472 at p 475h.
72See the judgment of Sir George Jessel MR in Andersen v Bank of British Columbia (1876) 2 Ch D 644 at p 649 as captured in
Lord Edmund-Davies' judgment in Waugh v British Railways Board [1980] AC 521 at p 542C–F.
73 [1991] 3 All ER 472 at p 475g.
74 [1991] 3 All ER 472 at p 476c.
75 As per Lord Edmund-Davies in Waugh v British Railways Board [1980] AC 521 at p 541G. Followed in Brink's Inc & Anor v
Singapore Airlines Ltd & Anor [1998] 2 SLR 657 at pp 660C and 664E (Singapore Court of Appeal).
76 The Supreme Court Practice 1991, Vol 1, para 24/3/5, as quoted in Dubai Bank Ltd & Anor v Galadari & Ors (No 7) [1992] 1
All ER 658 at p 663h.
77 Wheeler v Le Marchant (1881) 17 Ch D 675 at p 677.
78 Ventouris v Mountain (The Italia Express) [1991] 3 All ER 472 at p 476d–f.
79 [1995] 4 All ER 526 at p 540–541, [1996] AC 487 at p 507.

End of Document