Check Your Privilege

There are broadly three types of legal privilege - legal advice privilege, litigation privilege and "Without Prejudice" privilege.

In Malaysia, legal privilege stems from both the Evidence Act 1950 ("Evidence Act") and common law. Issues arise as to which of these laws provide the basis for legal advice privilege and which for litigation privilege and the application and reach of these two types of privilege.

In brief, legal advice privilege is codified in section 126 of the Evidence Act. Litigation privilege remains substantially within the realm of common law save for when section 129 of the Evidence Act applies to remove the protection of privilege in very limited circumstances. "Without prejudice" privilege cloaks written or oral communications which were genuinely made in an attempt at settlement negotiations.

This article will consider the recent developments in the law of legal privilege, specifically legal advice privilege and litigation privilege in Malaysia. Where relevant, comparisons will be made to the position in Singapore. "Without Prejudice" privilege falls outside the scope of this discussion.

LEGAL ADVICE PRIVILEGE

Legal advice privilege arises out of the relationship between a client and his lawyer. As is evident from the name, this type of privilege relates to the provision and receipt of legal advice. No legal proceedings need to exist or be in contemplation for legal advice privilege to apply.

Legal advice privilege is codified within section 126 of the Evidence Act. The extent of the protection rendered by section 126 of the Evidence Act has been extensively elucidated by the Malaysian Federal Court in Dato' Anthony See Teow Guan v See Teow Chuan & Anor [2009] 3 MLJ 14. Our apex court referred to and relied on the Singapore Court of Appeal judgment of Skandinaviska Enskilda Banken AB (PUBL), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR 367 ("Skandinaviska"). Skandinaviska considered section 128 of the Singaporean Evidence Act which is identical to section 126 of the Evidence Act. In short, legal professional privilege under section 126 of the Evidence Act concerns legal advice or communications between a lawyer and his client with a view to obtaining legal advice. This privilege is absolute and can only be waived by the privilege holder, i.e. the client, save where protection into such privilege has been eroded by legislation. This will be further discussed below.

LITIGATION PRIVILEGE

Litigation privilege extends further than legal advice privilege, to communications which is for the purposes of or leading to evidence for use in legal proceedings. This applies to such communications with third parties as well.

The Malaysian position is set out in Tenaga Nasional Bhd v Bukit...