Legal Advice Privilege – Should the ‘Dominant Purpose’ Approach Prevail?

The principles surrounding privilege have existed in the legal sphere for centuries. The modern-day approach to privilege is widely known in common law as Legal Professional Privilege (LPP). Essentially, there are two limbs to LPP which are Litigation Privilege and Legal Advice Privilege (LAP). This discussion centres on the principles and development of LAP which in recent times, has seen a wave of uncertainty across the Commonwealth.

Distinguished author Colin Passmore defines LAP broadly as a privilege that attaches to ‘any confidential communication between a client and his lawyer, for the purpose of giving or receiving legal advice in a relevant legal context’. By and large this definition has gained widespread approval with the exception of the ‘purpose’ prefacing the existence of the document or communication in question. Two opposing schools of thought emerge from this, namely whether the said purpose should be determined in a broad or narrow context.

The broad approach to construing ‘purpose’ first found favour in the seminal English Court of Appeal (COA) case of Balabel[1]  decided in 1988, where the Court set out the test for LAP as ‘whether the document or communications was made for the broad purpose of obtaining or giving legal advice’. Since the decision in Balabel, many Commonwealth jurisdictions including Australia and Singapore have moved away from the ‘Broad Purpose’ approach and had instead opted for the ‘Dominant Purpose’ approach in dealing with claims of LAP. It is noteworthy that this latter approach is the applicable test when dealing with a claim for Litigation Privilege, the other limb of LPP.

The ‘Dominant Purpose’ test in the context of LAP was examined by the apex court of Australia in Grant v Downs which was subsequently affirmed by the same Court in the case of Esso[2]. In short, the ‘Dominant Purpose’ approach sets out that in order for LAP to apply, the dominant purpose behind the creation of a document or communication must have been for the giving or receiving of legal advice. Short of this threshold, the claim to LAP would fail. Closer to home, the Singaporean Court of Appeal in Skandinaviska[3] has also concurred with the ‘Dominant Purpose’ approach being applicable to both limbs of LPP, albeit that the remarks with regard to LAP were set out by way of obiter. It bears stating that in Hong Kong too, the Courts there have conclusively adopted the ‘Dominant Purpose’ test as being the applicable test for LAP[4].

The culmination of the above authorities across the Commonwealth make it clear that the ‘Dominant Purpose’ test is largely preferred in contrast to the approach in Balabel. However, the position in the UK on this issue is to a large extent, muddled. In the 2003 COA decision of Three Rivers (No. 5)[5] the Court chose to depart from the approach in Balabel and instead preferred the dominant purpose approach. Barely a year later, the House of Lords in Three Rivers (No. 6) reverted to the Balabel approach. However, it is important to note that the English apex court there did not conclusively rule that the dominant purpose approach in the context of LAP was inapplicable. It is widely accepted that Three Rivers (No. 6) was decided on its own particular facts.

Recently, the English COA in the 2020 case of Jet2.com[6]  has made some headway in this regard. The COA undertook a detailed and comprehensive analysis of the law on LAP and ultimately concluded that the ‘Dominant Purpose’ approach is the correct approach. The judges in Jet2.com were troubled by the narrow interpretation of the concept of privilege in Three Rivers (No.6). This issue, therefore, remains ripe for consideration at the Supreme Court. In the same breath, it ought to be mentioned that to date, there is no Malaysian apex court decision that sets out the applicable test to be applied in the context of LAP.

As the law on privilege and in particular LAP continues to develop, it will be interesting to see if Jet2.com will transform the application of LAP in the UK. Additionally, it will be of great value for the Malaysian Federal Corut to address the lacuna in the law that presently exists concerning what the applicable test ought to be in the context of LAP.