Legal privilege part 1: English law and Hong Kong practice


Published: 14 May 2014

The Association is grateful to Andrew Horton, Partner at Smyth & Co (in association with RPC), Hong Kong for contributing to this update.

Key advice

In order to mitigate the risk of suffering prejudice in legal proceedings, it is important to ensure careful records are kept of documents and communications.

When in doubt, or when an incident has occurred, prompt contact with the Association can assist in putting in place a sound strategy for a matter that may become the subject of legal proceedings.

The duty to disclose and privileged documents

We live in a world of emails, texts, recorded phone conversations and social media, and each one of us is capable of producing dozens (if not more) of records daily in our working life.

Most of the time these are routine matters, and we do not think very much about them, especially once they are sent, published, posted or filed. What we say and do, however, becomes very significant should one of our matters become the focus of legal proceedings, be it directly or on an ancillary basis. Said another way: the emails we write today may become the subject of legal scrutiny tomorrow.

The law, as found in jurisdictions with a common law background such as the UK or Hong Kong, generally considers that if a document or record is material to a legal dispute then it may have to be disclosed to both the court and other parties to that dispute. This duty to "disclose" the existence of a document or record is a fundamental part of the process of justice in common law countries.

There can be exceptions to this duty of disclosure, with the most relevant being so called "Litigation Privilege" and "Legal Advice Privilege", and it can be easy to misunderstand these two concepts and their functions.

In the attached article, Andrew Horton discusses some of the issues with respect to possible "Privilege" and also raises some practical issues that need to be kept in mind.

It also helps to illustrate why the Association may at times recommend the retaining of external legal counsel early in a case, or have external legal counsel assist in the collecting and preserving of evidence as well as the taking of witness statements. This would be particularly the case in a collision or other casualty scenario.

Should Members have any queries with respect to these matters, they are asked to contact the Association.