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Contents
(ii)
(iii)
Practical points
This judgment is welcome news to companies which may find themselves the
subject of investigation or parties of litigation, particularly where an internal
investigation needs to be conducted. It is now clear that internal documents,
including preparatory materials, staff statements and interview notes created
by a companys employees in different departments or at various levels of the
corporate structure for the dominant purpose of getting legal advice would be
protected by legal advice privilege. The same applies to communications
between the companys employees with external legal advisers, as long as
the communications also satisfy the dominant purpose test. In this regard,
careful consideration should be given to the scope of engagement with
external counsel, so that communications could be structured in a way that
meets the dominant purpose threshold.
The CA has helpfully recognised that where information is required to be
gathered by the management from employees, it is unlikely that a restricted
group of employees (e.g. within the Group Legal Department) would always
be best qualified to contribute towards the information gathering process, or
the giving of suitable instructions to the companys lawyers. Companies
therefore will no longer be burdened with the task of formulating an artificial
client for the purpose of seeking and obtaining legal advice, which has
created much legal uncertainty.
It is likely that regulators and law enforcement agencies will now face greater
difficulties in challenging claims of legal advice privilege and limited waiver of
privilege. However, it remains to be seen whether the CA decision
represents settled law, pending any potential appeal to the Court of Final
Appeal.
Contacts
For further information
please contact:
Melvin Sng
Partner
(+852) 2901 5234
melvin.sng@linklaters.com
Marc Harvey
Partner
(+852) 2842 4122
marc.harvey@linklaters.com
Jelita Pandjaitan
Partner
(+65) 6692 5881
jelita.pandjaitan@linklaters.com
Gavin Lewis
Partner
(+852) 2901 5388
gavin.lewis@linklaters.com