Summary:
The Court of Appeal in Citic Pacific Limited v Secretary for Justice (2015 HKEC 1263) disagreed with the narrow approach in Three Rivers (No.5) to the definition of “client”. In the context of corporations where the information may be acquired from employees in different departments or at various levels of the corporate structure, the court considered that the process of gathering information for the purpose of obtaining legal advice needs to be protected. The Court of Appeal also held that the “client” is simply the corporation, and the question is “which of its employees should be regarded as being authorized to act for it in the process of obtaining legal advice.”
Relying on the constitutionally entrenched right of legal professional privilege (hereinafter, “LPP”) (which is protected by Article 35 of the Basic Law), the Court of Appeal adopted a broader test for legal advice privilege than that previously adopted. It held that the “dominant purpose test” espoused by Tomlinson J (as he then was) in Three Rivers (No.5) sets the proper limit for legal advice privilege, i.e. an internal confidential document produced or brought into existence with the dominant purpose that it or its contents are used to obtain legal advice is privileged from production.
Conclusion
The impact of the Court of Appeal judgment is two-fold. Firstly, a broader definition of “client” has been embraced, one that is not just limited to the legal department of a corporate entity. Secondly, the “dominant purpose test” is considered more appropriate in setting the proper limit to legal advice privilege. As a result of this case, this means that documents produced by employees for the dominant purpose of obtaining legal advice are likely to be privileged.
Further, the Court of Appeal also noted the unsatisfactory nature of the procedure by which the matter had proceeded before the judge (the judge did not have the assistance he should have had from the parties in examining the documents), and urged the Department of Justice and the legal profession to consider the English experience of engaging an independent lawyer to deal with LPP material.