§ 386AE — Meaning of “legal privilege”

386AE.—(1) For the purposes of this Part, information or a document is subject to legal privilege if —(a)

it is a communication made between a lawyer and a client, or a legal counsel acting as such and the legal counsel’s employer, in connection with the lawyer giving legal advice to the client or the legal counsel giving legal advice to the employer, as the case may be;

(b)

it is a communication made between 2 or more lawyers acting for a client, or 2 or more legal counsel acting as such for their employer, in connection with one or more of the lawyers giving legal advice to the client or one or more of the legal counsel giving legal advice to the employer, as the case may be;

(c)

it is a communication made —(i)

between a client, or an employer of a legal counsel, and another person;

(ii)

between a lawyer acting for a client and either the client or another person; or

(iii)

between a legal counsel acting as such for the legal counsel’s employer and either the employer or another person,

in connection with, and for the purposes of, any legal proceedings (including anticipated or pending legal proceedings) in which the client or employer (as the case may be) is or may be, or was or might have been, a party;

(d)

it is an item, or a document (including its contents), that is enclosed with or mentioned in any communication in paragraph (a) or (b) and that is made or prepared by any person in connection with a lawyer or legal counsel, or one or more of the lawyers or legal counsel, in either paragraph giving legal advice to the client or the employer of the legal counsel, as the case may be; or

(e)

it is an item, or a document (including its contents), that is enclosed with or mentioned in any communication in paragraph (c) and that is made or prepared by any person in connection with, and for the purposes of, any legal proceedings (including anticipated or pending legal proceedings) in which the client or the employer of the legal counsel (as the case may be) is or may be, or was or might have been, a party,

but it is not any such communication, item or document that is made, prepared or held with the intention of furthering a criminal purpose.

[15/2017]

(2) In subsection (1) —“client”, in relation to a lawyer, includes an agent of or other person representing a client and, if a client has died, a personal representative of the client;

“employer”, in relation to a legal counsel, includes —(a)

if the employer is one of a number of corporations that are related to each other under section 6, every corporation so related as if the legal counsel is also employed by each of the related corporations;

(b)

if the employer is a public agency within the meaning of section 128A(6) of the Evidence Act 1893 and the legal counsel is required as part of the legal counsel’s duties of employment or appointment to provide legal advice or assistance in connection with the application of the law or any form of resolution of legal dispute to any other public agency or agencies, the other public agency or agencies as if the legal counsel is also employed by the other public agency or each of the other public agencies; and

(c)

an employee or officer of the employer;

“lawyer” means a solicitor or a professional legal adviser, and includes an interpreter or other person who works under the supervision of a solicitor or a professional legal adviser;

“legal counsel” means a legal counsel as defined in section 3(7) of the Evidence Act 1893, and includes an interpreter or other person who works under the supervision of a legal counsel.[15/2017]

—(1) For the purposes of this Part, information or a document is subject to legal privilege if —(a)

it is a communication made between a lawyer and a client, or a legal counsel acting as such and the legal counsel’s employer, in connection with the lawyer giving legal advice to the client or the legal counsel giving legal advice to the employer, as the case may be;

(b)

it is a communication made between 2 or more lawyers acting for a client, or 2 or more legal counsel acting as such for their employer, in connection with one or more of the lawyers giving legal advice to the client or one or more of the legal counsel giving legal advice to the employer, as the case may be;

(c)

it is a communication made —(i)

between a client, or an employer of a legal counsel, and another person;

(ii)

between a lawyer acting for a client and either the client or another person; or

(iii)

between a legal counsel acting as such for the legal counsel’s employer and either the employer or another person,

in connection with, and for the purposes of, any legal proceedings (including anticipated or pending legal proceedings) in which the client or employer (as the case may be) is or may be, or was or might have been, a party;

(d)

it is an item, or a document (including its contents), that is enclosed with or mentioned in any communication in paragraph (a) or (b) and that is made or prepared by any person in connection with a lawyer or legal counsel, or one or more of the lawyers or legal counsel, in either paragraph giving legal advice to the client or the employer of the legal counsel, as the case may be; or

(e)

it is an item, or a document (including its contents), that is enclosed with or mentioned in any communication in paragraph (c) and that is made or prepared by any person in connection with, and for the purposes of, any legal proceedings (including anticipated or pending legal proceedings) in which the client or the employer of the legal counsel (as the case may be) is or may be, or was or might have been, a party,

but it is not any such communication, item or document that is made, prepared or held with the intention of furthering a criminal purpose.

[15/2017]

(2) In subsection (1) —“client”, in relation to a lawyer, includes an agent of or other person representing a client and, if a client has died, a personal representative of the client;

“employer”, in relation to a legal counsel, includes —(a)

if the employer is one of a number of corporations that are related to each other under section 6, every corporation so related as if the legal counsel is also employed by each of the related corporations;

(b)

if the employer is a public agency within the meaning of section 128A(6) of the Evidence Act 1893 and the legal counsel is required as part of the legal counsel’s duties of employment or appointment to provide legal advice or assistance in connection with the application of the law or any form of resolution of legal dispute to any other public agency or agencies, the other public agency or agencies as if the legal counsel is also employed by the other public agency or each of the other public agencies; and

(c)

an employee or officer of the employer;

“lawyer” means a solicitor or a professional legal adviser, and includes an interpreter or other person who works under the supervision of a solicitor or a professional legal adviser;

“legal counsel” means a legal counsel as defined in section 3(7) of the Evidence Act 1893, and includes an interpreter or other person who works under the supervision of a legal counsel.[15/2017]