Court Of Appeal Adopts A Broader And More Generous Interpretation Of 'Client' For Legal Advice Privilege

Keywords: dominant purpose test, Hong Kong

On 29 June 2015, the Court of Appeal handed down judgment in the case of Citic Pacific v. Secretary for Justice1 and rejected the narrow definition of "client" found in the leading English Court of Appeal case on legal advice privilege, Three Rivers (No.5)2.

The Court of Appeal preferred the liberal approach to defining "client" for protection of legal advice privilege and confirmed the dominant purpose test was the proper test for such a claim. The Court also offered some guidance regarding the proper procedure for handling future claims of legal advice privilege.

Background

In the leading decision of the English Court of Appeal in 2003, Three Rivers (No.5), it was held that the protection of legal advice privilege was only available to a narrowly defined classification of "client", comprising of the group of core individuals responsible for obtaining legal advice on behalf of a corporation, and typically confined to the directors and the in-house lawyers of the corporation.

In effect, corporations would only enjoy legal advice privilege if the correspondence and documents were sent to/from this select group of individuals of the corporation and their lawyers. All other relevant communications and materials made with or by "third parties" in the organisation would be outside the scope of legal advice privilege, even if they were prepared for the purpose of obtaining legal advice for the corporation.

Although the decision...