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Disclosure of Legally Privileged Documents under Compulsion of Law: Whether Privilege is Lost
This article discusses the issue of whether privilege is waived when privileged
documents are disclosed voluntarily or under compulsion of law for the purpose
of investigations being conducted by law enforcement agencies.
Privileged documents are with good reason closely guarded by the party whose
interest lies in ensuring that legal privilege is preserved. The slightest
lapse in efforts to restrict dissemination of privileged documents can lead
to legal privilege being lost irrevocably in not just that particular document
but also in the series of related documents. Therefore, establishing well-defined
privilege protocols between lawyer, client and third party assumes utmost
importance. Case law has demonstrated that inadvertent disclosure of privileged
documentation throws up complex questions of law. But there is little in terms
of judicial or statutory guidance on the effect of voluntary or compelled
disclosure of privileged documents, ie will privilege stand waived in such
situations?
A peculiar situation that may arise is where a party seeking privilege protection has to produce those privileged documents for investigations by law enforcement agencies such as the Commercial Affairs Department ('CAD') and other similar government organs. Such a situation can give rise to a number of anomalies. The question then is whether privilege is deemed to have been waived as a result of complying with compulsory state process. Another question that needs to be addressed is how privilege would be affected if a party voluntarily aids investigations being conducted by state investigative bodies, without any apparent or indirect compulsion. A review of local evidence law as well as civil procedure yields little but an uneasy silence on these subtle, but potentially pivotal points. However, some insights can be gained by studying the approach of the Courts in two oft-cited common law jurisdictions, the UK and Australia.
The Courts in the UK and Australia have locked horns with such issues resulting in innovative approaches being applied to the facts to resolve the issue. To set the ball rolling, it would be apt to thresh out the import and relevance of the phrase 'compulsion of law of legal process' which can be dressed up to take on multiple meanings in the absence of a statutory definition.
In Singapore, an apt embodiment of the power to legally compel documents and/or other source of recorded information is s 58 of the Singapore Criminal Procedure Code (Cap 68) which empowers any Court or police officer to issue a summons for the production of any document or other thing which the Court or the respective police officer considers necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Criminal Procedure Code by or before that Court or officer. (By virtue of s 62(2) and s 64(3)(a) of the Police Force Act (Cap 235), a Commercial Affairs Officer is deemed a police officer and has the same powers of investigation as a police officer, which are enshrined in Part V of the Criminal Procedure Code.) This provision can be deemed as the basis of 'compulsion' to produce documents in respect of the police as well as the CAD. However, power to compel production of documents is by no means limited to s 58 of the Criminal Procedure Code and may be embodied in other statutes which envisage investigations and inquiries, where such power to compel will be for the limited purpose of the statute.
Assuming for the sake of argument that the relevant authority compelling a party to furnish a certain privileged document is the CAD, as provided for under s 58, then the issue that would arise is whether legal privilege attached to the document could be treated as waived, by virtue of co-operating with the CAD and producing the requisite document(s). The provisions of both the Singapore Evidence Act (Cap 97) as well as the Rules of Court (Cap 322, R 5) pertaining to privilege do not cover such a situation, thus creating a legal blind spot for both the Court as well as the party compelled to produce the document. In Australia, the Supreme Court of New South Wales ('NSWSC') had to decide on issues pertaining to privilege and compulsion of law. However, the Australian Court did not have to grope in the dark as it relied on the yardstick provided by s 122(2)(c) of the Supreme Court Act 1970. The section is clear in its mandate that where 'voluntary' disclosure of privileged communication is made under compulsion of law then privilege does not stand waived. Nevertheless, the import of the phrase 'compulsion of law' was something which the NSWSC felt worthy of elaboration in Woollahra Municipal Council v Westpac Banking Corp & Anor (1994) 33 NSWLR 529. The issue was whether prior voluntary disclosure premeditating legal compulsion amounts to disclosure triggered by 'compulsion of law'. The case is discussed in due course, whilst addressing the question how privilege will be affected when there exists a situation of 'voluntary' obedience to a legal obligation in view of the impending eventuality of being compelled before the eventuality has taken place.
Coming back to the central question of voluntary production of privileged documents under the shadow of legal compulsion, the inquiry ought to veer onto probing the nature of 'compulsion', ie whether an express order by or on behalf of a law enforcement agency is a sine qua non for the 'compulsion of law' exception to waiver of privilege to apply or, on the other hand, whether premeditated voluntary compliance in light of the impending action to compel production is sufficient to be treated as production of documents under compulsion of law.
The NSWSC, in Woollahra, was presented
with facts whereupon it had to analyse the issue of what amounts to a 'compulsion
of law'. Certain privileged and confidential documents relating to an independent
investigation undertaken by a law firm were requested by the inspector appointed
under the statutory machinery. There was a request for the said documents.
Additionally, there was a threat that if the law firm failed to co-operate
then the inspector would proceed to issue a summons to compel production of
the privileged documents. Thus, it could be potentially averred that the documents
were produced under a threat of reprisal rather than under any existing compulsion
of law. The Court was of the view that compliance under the threat of compulsory
processes and for the purpose of enabling the inspector to carry out statutory
duty was sufficient and thus did not constitute waiver of privilege. Thus,
indirectly, without having to delve into the import of the phrase 'compulsion
of law', the Court in effect gave the phrase a wider interpretation by including
instances where a party acts in the shadow of an impending compulsive action
and releases privileged documents. The underlying basis of the Woollahra
Court's decision was its recognition of the fact that the disclosure required
by the inspector was to be on the terms of his upholding confidentiality on
his part.
However, of yet greater interest is a scenario where there is no apparent 'compulsion of law' and the circumstances do not lean in favour of building a case of constructive compulsion of law. One such situation is where a party, whose interests lie in preserving privilege, would be willing to release such documents with a view to assisting law enforcers in investigations rather than out of any impending or actual legal compulsion. A greater purpose is served by genuinely wilful co-operation, as opposed to 'volunteerism' sparked by an impending compulsion, in the release of such documents. Courts in England and Australia have come to formulate and apply one of the two tests in deciding whether legal privilege stands waived or not. One is a subjective yardstick whether the information disclosed was for the 'limited purpose' of assisting in investigation and/or court proceedings. And the second is a yardstick directing the Courts to analyse whether information was disclosed on clear and cogent terms of confidentiality, with emphasis on restricting further dissemination of the privileged documents.
The English Court of Appeal, in British Coal v Dennis Rye (No 2) [1988] 1 WLR 1113 (CA), adjudicating a case involving voluntary release of privileged documents to the police, held that privileged documents disclosed to the police by British Coal in connection with a criminal investigation and trial remained privileged in subsequent civil proceedings brought by British Coal against Dennis Rye Ltd. The Court of Appeal found that public policy considerations would have received a blow had British Coal been penalised in this way for assisting the police with their enquiries. Neill LJ, with whom both Dillon and Stocker LJJ concurred, held that:
In my judgment, the action of the Plaintiff in making documents available for the purpose of the criminal trial did not constitute a waiver of the privilege to which it was entitled in the present civil proceedings. Its action in regard to [the documents] was in accordance with its duty to assist in the conduct of the criminal proceedings, and could not properly be construed as an express or implied waiver of its rights in its own civil litigation. Indeed, it would in my view be contrary to public policy if the Plaintiff's action in making the documents available in the criminal proceedings has the effect of automatically removing the cloak of privilege which would otherwise be available to it in the civil litigation for which the cloak was designed.
The relevance of this observation is in the heightened significance that the Judge accords to public interest, because of the criminal nature of the trial. Thus, privilege is treated as preserved in spite of there being no actual or constructive compulsion. It can be argued that such a public interest may fizzle out where the matter is a civil action in which the only interests at stake are those of the parties to the dispute. However, as demonstrated by British Coal, the English Court of Appeal was quick to apply the test of 'limited purpose' to such a situation.
In the same year as the British Coal decision, the Queens Bench Division ('QBD') rendered its decision in Downey v Murray [1988] NI 600. The QBD followed the Court of Appeal in British Coal in holding that:
The plaintiff was entitled to claim legal professional privilege for the statement. In determining the purpose for which the document in question was made, the court should look at the first and immediate purpose and not at the remote purpose. In the present case the dominant purpose was to enable the plaintiff's solicitors to prosecute a civil action, even thought they may not have had it in mind to furnish a copy to the police either in the fulfilment of a citizen's duty to assist the police or because a successful prosecution of the defendant would assist the plaintiff's case.
The abovementioned observation of the QBD is of relevance because the Court found looking into the voluntary/mandatory nature of the disclosure somewhat irrelevant, and turned the focus of judicial inquiry to what was the 'immediate purpose' of the disclosure.
As regards the second test where the Court ought to attempt to cull from the facts a guarantee of confidentiality on the part of the receiving agency, the observations of the NSWSC in Woollahra, as discussed above, serve as a pertinent illustration of an application of the second approach. This is a more objective approach as compared to the test of looking into an 'immediate purpose' for disclosure of privileged documents.
To sum up, what can be of relevance to lawyers, in-house counsel and law enforcers alike is to try and understand the niceties that emanate and revolve around the issue of compelling production of privileged and confidential documents, bearing in mind the fact that the Courts in Singapore have not had the opportunity to address the issue. Nevertheless, as a prudent pre-emptive measure, it would be germane for the party compelled or contemplating compulsion to produce its privileged documents, to communicate to the recipient the special status of the documents requested and draw up in writing a protocol that sets out in express terms a procedure for the handling and treatment of those documents at the hands of the third party receiving those documents.
Ankur Gupta
Alban Tay Mahtani & de Silva LLP
E-mail: ankurgupta@atmdlaw.com.sg