Litigation privilege continues to apply in the context of the Evidence Act 1950, recognizing the necessity to protect documents prepared with the dominant purpose of litigation.

[1] This appeal centers on the legal issue of litigation privilege and its application in this jurisdiction in the context of our adversarial system.

[2] The appellants, who were the defendants in the court below, applied by way of discovery for, inter alia, an investigation report dated 7 June 2012, prepared for the respondent, the plaintiff in the court below, by its officers. In other words, the report is an internal investigation report of the respondent. The application for discovery was made pursuant to O 24 r 7 of the Rules of 2012 and/or the court's inherent jurisdiction.

[3] The High court refused discovery of the said investigation report maintaining that the said report was protected by litigation privilege as it was prepared for the dominant purpose of litigation.

[4] Before us, learned counsel for the appellants adopted a two-prong approach in relation to the issue of litigation privilege. The first contention was that litigation privilege does not afford any privilege to the investigation report commissioned by the respondent, as such privilege does not subsist under the provisions of s 126 of the Evidence Act 1950 (' EA '). Secondly, if litigation privilege does subsist, then the investigation report is not caught by it.

[5] Apart from the issue of privilege, in line with the law on discovery, learned counsel for the appellants stressed the significance of the relevance of the investigation report that it sought discovery of. The report was of importance to the defence and it was therefore urged upon us that disclosure ought to be ordered.

[6] Reverting to the issue of privilege, it was the appellant's stance that litigation privilege did not subsist in light of s 126 of the EA . This submission was premised on a recent decision of this court in Tenaga Malaysia Berhad v. Bukit Lenang Development Sdn Bhd , [2016] 5 MLJ 127 ('Bukit Lenang').

[7] In that case, this court determined in the course of discussing the issue of privilege, that litigation privilege at common law had been displaced by s 126 of the EA . Given the existence of a statute codifying the law of evidence, there was no basis on which to rely upon the common law. This was particularly so, it was held, in view of s 3(a) of the Civil Law Act 1956 ('CLA').

[8] As such, reliance should only be placed on s 126 of the EA , and that section did not provide for litigation privilege.

[9] Litigation privilege could not therefore be relied upon, to protect from disclosure, any report produced by a third party at the behest of the advocate or the client for the dominant purpose of litigation.

[10] Alternatively, this court in Bukit Lenang (above) held that even if litigation privilege did apply, then the factual circumstances relating to the production of the impugned document did not permit the application of litigation privilege. This appeal pertains largely to the first line of reasoning formulated, namely that litigation privilege has been displaced by s 126 of the EA .

[11] In the instant case, having heard learned counsel, we concurred with the learned High court Judge that litigation privilege applied to protect the investigation report from disclosure to the appellant at the discovery stage. We therefore upheld the decision of the High court and dismissed the appeal with costs.