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2013 MarsdenLR 1476
HIGH COURT MALAYA KUALA LUMPUR
MALAYSIAN NEWSPRINT INDUSTRIES SDN BHD – Appellant
Versus
BECHTEL INTERNATIONAL INC & ANOR – Respondent
[Civil Suit No: S6-22-1126-2002]
Solicitor-client privilege is absolute under the Evidence Act, and waiver requires express, intentional consent, which was not present in this case.
Headnote:(A) Evidence Act, 1950 - Sections 126 to 129 - Privilege - Plaintiff's application to exclude privileged documents - Court held that solicitor-client privilege is absolute and can only be waived by express, intentional, and deliberate consent - No waiver found as plaintiff did not intend to disclose privileged documents, nor was there express consent quoted - Documents obtained by defendant through a third party improperly are inadmissible - Totality of circumstances led to privilege being upheld. (Paras 50, 52, 67, 82)
(B) Waiver of Privilege - Common law principle 'once privileged, always privileged' established - Waiver must meet strict criteria to be effective - Disclosure to a known third party does not automatically negate privilege unless expressly authorized. (Paras 54, 58, 64)
Facts of the case:
The plaintiff sought to expunge documents that were claimed to be subject to solicitor-client privilege and included communications between the plaintiff and its solicitors. The defendants contended that documents had been improperly disclosed, which led to a dispute regarding the assertion of privilege. The court evaluated multiple documents, their categorization, and the circumstances surrounding their disclosure.
Findings of Court:
The court found that the solicitor-client privilege remained intact, and the documents in question could not be disclosed due to lack of express consent for their use by the defendants.
Issues: Key issues included determination of whether privilege was waived through implied consent and if documents were improperly disclosed by an agent of the plaintiff.
Ratio Decidendi: Solicitor-client privilege upheld as absolute, with only express and deliberate consent allowing for its waiver. Disclosure through a third party does not negate privilege.
Result: Plaintiff's application granted; documents upheld as privileged and excluded from the proceedings.
| Table of Content |
|---|
| 1. plaintiff's application to exclude documents raised. (Para 1 , 2) |
| 2. details of documents involved in the application. (Para 3 , 4 , 8 , 12) |
| 3. defendants' objections and lack of legal basis for application. (Para 5 , 6 , 7 , 19 , 20) |
| 4. the first category of disputed documents and their implications. (Para 14 , 15 , 18 , 30) |
| 5. defendants' objections to the application. (Para 16) |
| 6. overview of solicitor-client privilege and waiver. (Para 28) |
[1] This is the plaintiff's application in encl 64 to exclude and expunge documents which are privileged from disclosure and/or use in this present action ("application").
[2] The defendants objected to the plaintiff's application.
[3] The relevant cause papers filed in respect of the plaintiff's application and the defendants' objection herein are as follows:
(a) The plaintiff's notice of application dated 9 April 2013 ("notice of application");
(b) The affidavit in Support of Nathan Kandapper which was affirmed on 5 April 2013 ("the plaintiff's first affidavit");
(c) The affidavit in reply of Yau Yat Loong which was affirmed on 7 May 2013 ("the defendants' first affidavit"); and
(d) The affidavit in reply No 1 of Nathan Kandapper which was affirmed on 22 May 2013 ("the plaintiff's second affidavit").
(e) The affidavit in reply of Yau Yat Loong which was affirmed on 4 June 2013 ("the defendants' second affidavit").
Attached Documents (Under Prayer (i))
[4] At the outset, the issue was raised that the plaintiff is also seeking to exclude and/or prohibit the documents attached to the privileged documents (hereinafter referred to as "attached documents") without establishing whether the same is privileged or not.
[5] I agree with the defendants' solicitor that there is no legal basis to do so. This would essentially mean that the documents that are otherwise subject to disclosure are automatically prohibited merely because they were attached, referred and/or enclosed with properly exempted documents. For example whenever a client submits documents to a solicitor for advice and to which the solicitor does so by referring or attaching the said documents, the extension of the plaintiff's argument would mean that such documents forwarded by the client to the solicitor become privileged. It is pertinent to cite a passage in a Canadian case namely Murchison v. Export Development Canada [2009] FC 77 that dealt with a situation similar to this where the court held at pp 29-30 paras 44-46, "no automatic privilege attaches to documents which are not otherwise privileged simply because they come into the hands of a party's lawyer."
[6] The plaintiffs' solicitor was not aware if there could be other documents emerged later which are privileged documents. However he conceded, the documents and communications passing between the plaintiff and its solicitors which are subject to solicitor-client privilege, including the documents listed in Appendix A of the plaintiff's first affidavit in exh "P2" should be dealt with by this court.
[7] In the circumstances it was agreed that the words "attached documents" as appearing at prayer (i) of plaintiffs' application is unnecessary and the argument will proceed to 12 Solicitor-Client Communications which the court will determine whether to exclude and expunge from disclosure and/or use in this present action.
Privileged Documents
[8] There are two types of documents which the plaintiff seeks to expunge and exclude in this application:
(a) Documents and communications passing between the plaintiff and its solicitors which are subject to solicitor-client privilege, including the documents listed in Appendix A of the plaintiff's first affidavit (exh "P2"); and
(b) Documents marked and made "without prejudice" namely the letter from Messrs Owen Bird to Messrs Shook Lin & Bok dated 7 September 1998.
Documents Subject To Solicitor-Client Privilege
[9] On 6 March 2013 the defendant had served on the plaintiff the defendant's Bundle of Documents Volumes A to G ("DBOD"). Inc
