Documents and the protection of privilege

The Dispute Resolution Review

 

Documents and the protection of privilege


Date Published: 5 April 2021


Authors and Contributors:  See Tow Soo Ling, Subramanian Pillai, Venetia Tan, Ervin Roe and Lim Shu-Yi.


 

i. Privilege

Generally, there are two kinds of privilege in Singapore between solicitor and client: legal advice privilege and litigation privilege.

Legal advice privilege is generally governed by Section 128 of the Evidence Act, which provides that nothing shall be disclosed that was given to an advocate or solicitor in the course of his or her employment. The rules that apply with regard to legal advice privilege extend to in-house lawyers by virtue of the recent amendments to the Evidence Act. It must be noted that there are circumstances in which privilege does not operate where communications are made in furtherance of an illegal purpose and where a solicitor becomes aware of a crime or fraud after engagement.

Litigation privilege is relied upon to protect information provided for the purpose of pending or anticipated court proceedings.

 

ii. Production of documents

Under Singapore law, a party to a court proceeding is under an obligation to make and serve on the other party a list of the documents that are or have been in their possession, custody or power. The list of documents has to be verified by an affidavit. The documents that may be ordered to be discovered are documents on which the other party relies or will rely, and documents that could affect his or her own case, adversely affect another party’s case or support another party’s case. This obligation to continue to give discovery remains until the conclusion of proceedings. Parties must also be aware that it is the duty of a litigant to preserve documents relevant to proceedings. Destroying documents could result in detrimental circumstances such as dismissal of the action or striking out the defence.

If a party is not satisfied with the documents provided in discovery, it may make an application under the Rules of Court for a document that the other party has or has not had in his or her possession, custody or power. This is often referred to as a request or application for specific discovery. In this regard, this could be broader than the general discovery obligations referred to in the preceding paragraph given that a party can seek a document that may lead to a line of inquiry which provides information that adversely affects its own case or the other party’s case, or supports the other party’s case. Even so, the court may find that the discovery is not necessary for disposing fairly of the cause or matter, or for saving costs.

The rules governing e-discovery are not set out in the Rules of Court, but are set out in the practice directions produced by the Singapore courts. The practice directions provide for parties to consider using e-discovery when a claim or counterclaim exceeds S$1 million, where the documents discoverable exceed 2,000 pages, or where the documents discoverable substantially comprise electronic mail or electronic documents.

 

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Disclaimer: This update is provided to you for general information and should not be relied upon as legal advice. The editor and the contributing authors do not guarantee the accuracy of the contents and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the contents.

 

CNPLaw’s Dispute Resolution Lawyers

See Tow Soo Ling - Oct2017
Partner

    Soo Ling’s main areas of practice are intellectual property and dispute resolution. She has experience in a diverse range of matters such as building construction, company law, commercial law, disciplinary proceedings, employment law, family law, intellectual property, property law, probate & administration and shareholder disputes. Soo Ling is recognised as a Recommended Lawyer by The Legal 500 Asia Pacific 2021 for the Dispute Resolution practice, and is featured as a leading individual in the 2021 Edition of the World Trademark Review 1000, under the Prosecution and Strategy category.



    Subramanian Pillai Partner at CNPLaw
    Partner

      Subramanian’s practice has been primarily in the field of commercial litigation and arbitration. He heads the firm’s International Arbitration and Construction, Engineering and Infrastructure teams. Subramanian is “Recommended” by The Legal 500 Asia Pacific 2020 for the Dispute Resolution practice.



      Venetia2018
      Partner

        Venetia is a disputes lawyer with experience handling international arbitration, litigation and advisory work on international and local commercial disputes, in particular, disputes relating to foreign investments and joint ventures, financing, distributorships, and jurisdictional challenges. Venetia was listed as Singapore’s 20 most influential lawyers aged 40 and under in 2018 by the Singapore Business Review, and is also recognised as one of Asia’s Super 50 Dispute Lawyers by the Asian Legal Business in 2021.



        ervin roe is an associate at CNPLaw

          Associate
          Ervin is an associate in the Construction, Engineering & Infrastructure Projects team. He advises on matters related to civil and commercial litigation and regularly acts for clients in construction projects and insolvency disputes.


          With globalisation providing not only a myriad of opportunities but also increased challenges in dealing with the various stakeholders, disputes are bound to arise in the normal course of businesses and transactions.

          At CNPLaw, our dispute resolution lawyers seek to provide support to our clients through the lifecycle of transactions. At the very beginning, we seek to mitigate risk and avoid disputes. However, should it transpire to the latter, our lawyers work closely with our clients to either resolve the matter through alternative dispute resolution matters like arbitration and mediation, or through litigating the matter, either in the civil or criminal courts. We have extensive legal experience at every level of the Singapore courts of justice, and our lawyers have appeared in a number of cases reported in the Singapore Law Reports.