A recent landmark court decisions affecting common law countries have reinforced a ruling that has deemed e-mails exchanged between in-house lawyers and their managers are not protected by legal professional privilege and could be called to court as evidence.
The decisions affect companies operating in common law jurisdictions such as Singapore, Malaysia, Pakistan, India and Australia.
A recent decision by the European Court of Justice in Akzo Nobel Chemicals Ltd and Akcros Chemicals Limited v Commmission of the European Communities (Case-550/07 P) issued on 14 September 2010 decided that e-mails exchanged between a company manager and its in-house lawyer was not protected – the court regarded in-house lawyers as employees rather than independent professionals.
Another recent decision by the English Court of Appeal in Prudential PLC and Prudential (Gibraltar) Ltd v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes) [2010] EWCA Civ 1094 on 13 October 2010 also restricted the principle of legal professional privilege.
According to Singapore-based Wikborg Rein Alliance director Chee Fang Theng, taxation is a particularly sensitive area and the implications of getting things wrong could result in serious consequences. “If your business is ever challenged, you must consider how much of the confidential information or proprietary information you disclose could make it to the court room or the public domain,” Chee said.
In the case of Prudential, the English Court of Appeal decided that privilege would be confined to members of the legal profession acting in a professional capacity, mainly on the grounds that it promotes public interest in the administration of justice by ensuring effective legal representation.ALB
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