Legal Professional Privilege – Navigating the Fine Line of Adequate Disclosure

Introduction

In the course of legal proceedings, the courts will require the disclosure of all relevant documents. However, documents subject to legal professional privilege are protected from disclosure. This includes legal advice privilege, which covers communications for seeking or receiving legal advice, and litigation privilege, which protects communications made for the dominant purpose of litigation.

The assertion of legal professional privilege involves treading a fine line of disclosure. Disclose too little, and the court may not have adequate information to establish privilege; disclose too much, and one risks waiving such privilege. This is particularly relevant for organisations and in-house counsel involved in potential or existing disputes, where internal correspondence (including correspondence with in-house counsel copied) and external correspondence (including correspondence with legal counsel) often contains key information which may affect the outcome of the dispute.

In Wesley Widjaja v Ng Wei San (alias Oei Wei San alias Wilson Hasan Widjaja) and others [2025] SGHCR 32, which involved a dispute over the beneficial ownership of shares, the Singapore High Court was faced with an application by the Claimant for the production of correspondence regarding the transfer of the shares. While the Defendants sought to resist production on the basis that the correspondence was protected by litigation privilege, the Court found that privilege had not been established and ordered the production of the documents.

The Claimant was successfully represented by Foo Xian Fong and Jodi Siah of Rajah & Tann Singapore LLP.

In reaching its decision, the Court provided guidance on legal professional privilege, including the procedural requirements for asserting privilege, and the sufficiency of affidavits supporting an assertion of privilege. The Court highlighted that a bare assertion of privilege will not suffice, nor is it enough that solicitors are copied on the relevant correspondence.

This Update highlights the key elements of the Court’s decision and sets out guidance on how to navigate the threshold of disclosure in asserting legal professional privilege.

Brief Facts

The case involved a family inheritance dispute over shares in a company (“Company“) beneficially owned by the late Testator. The Defendants included Wilson, the Managing Director of the Company, and Kelvin and Jethro, directors and shareholders of the Company. The Claimant and Wilson were the beneficiaries of the estate, with Wilson being the executor.

The Claimant brought proceedings against Wilson, claiming that Kelvin and Jethro had held the Company’s shares on trust for the Testator, and that Wilson ought to have included the shares in the estate.

In response, Wilson claimed that he was entitled to the beneficial ownership of the Company’s shares pursuant to a settlement agreement.

A few months after the suit was commenced, Kelvin and Jethro transferred the Company’s shares to a trust company (“Crawford Trust“).  

The Claimant then added claims against Kelvin and Jethro for breach of trust, breach of fiduciary duties, and dishonest assistance, and against Crawford Trust for knowing receipt.

Kelvin’s and Jethro’s defence was that they performed a purely facilitative role in transferring the shares and that they were merely following instructions from Wilson.

The Claimant sought the production of documents from Wilson, Kelvin and Jethro, including all their correspondence on the Company’s shares and their transfer to Crawford Trust. The Defendants submitted that the correspondence was protected by litigation privilege, with their main argument being that their solicitors were copied on all correspondence.

The Court thus had to determine:

1. What a party would need to do in order to assert legal professional privilege;
2. Whether the Defendants had succeeded in establishing that the documents were protected by litigation privilege; and
3. If the documents were protected by privilege, whether the Defendants had waived their privilege.

Holding of the High Court

The Court ordered the Defendants to produce the disputed documents, finding that they had not properly established a claim of privilege.

General Law

The Court set out the applicable principles where a party seeks to resist the production of documents on the ground of privilege:

1. The party asserting privilege should state in his response affidavit that he is resisting production on this ground, and identify the relevant head of privilege.
2. The party asserting privilege bears the legal burden of proving, at least on a prima facie basis, that the preconditions for privilege are present in respect of the disputed documents.
3. To discharge this burden, the party asserting privilege must set out sufficient facts and evidence to support its claim that the preconditions for the relevant head of privilege are met – at least on a prima facie basis, and albeit without disclosing the allegedly privileged material itself. Bare assertions of privilege in affidavits are insufficient. 
4. If the party asserting privilege succeeds in discharging this burden, the burden shifts to the party seeking production to adduce material to rebut this prima facie.

Application

On the facts, the Court held that the Defendants had failed to discharge their legal burden to prove that the disputed documents were privileged. Importantly, the Defendants’ affidavits contained only bare assertions and did not provide sufficient factual basis to establish litigation privilege. 

Litigation privilege requires the protected communications to have been made for the dominant purpose of litigation. While the disputed documents here comprised correspondence between Wilson, Kelvin and Jethro regarding the Company’s shares and their transfer to Crawford Trust, which was the subject of the Claimant’s claim, it did not follow that any and all correspondence about the shares would automatically have been made for the dominant purpose of the suit.

The Defendants argued that their solicitors were copied in the disputed correspondence, and that this should make a difference to the analysis. However, the Court held that the mere fact that solicitors were copied in correspondence did not, by itself, establish that the dominant purpose of the communications was litigation.

Waiver

Even if litigation privilege had existed over the disputed documents, the Court indicated that it was inclined to find that the Defendants had impliedly waived such privilege by referring to the instructions and correspondence in their evidence and pleadings. In particular, Kelvin and Jethro had stated in their affidavits that Wilson had instructed them to sign directors’ resolutions to transfer the Company’s shares, which would be relevant to their defence that they were merely following Wilson’s instructions in the transfer of the shares.

However, the Court did not need to decide this point, as litigation privilege was not established in the first place.

Concluding Words

The Court’s decision demonstrates its approach to assertions of legal professional privilege, including what is needed for parties to establish privilege.

In light of this nuanced balance, litigants – particularly businesses and in-house counsel – may wish to consider the following recommendations on the assertion of legal professional privilege.

1. Provide sufficient particulars: When asserting privilege, affidavits should include enough details to establish the factual basis for the claim (e.g., who was involved, the context, the purpose of the communication). 
2. Avoid bare assertions: Do not rely on generic or conclusory statements. Instead, provide a reasoned explanation, referencing the nature of the documents and their connection to legal advice or litigation. 
3. Do not disclose the substance of privileged material: While providing particulars, avoid revealing the actual content of the privileged communications or documents. The affidavit should describe the context and purpose, not the substance.
4. Be consistent: Avoid inconsistent conduct that could be construed as waiver, such as consenting to production without reservation and later asserting privilege. 
5. Understand the threshold for waiver: Waiver of privilege requires a clear, voluntary, and informed election not to claim privilege. Implied waiver may arise from conduct that is inconsistent with maintaining privilege, especially if privileged material is put before the court to advance a case. 

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