Knowledge

Introduction

Legal professional privilege is one of the most important protections recognised by the common law. Its purpose is to enable clients to communicate freely and candidly with their lawyers without fear that those communications will later have to be disclosed to opponents, regulators or the court. This protection is fundamental to the administration of justice, because it encourages clients to seek legal advice and to provide complete information to their advisers. The privilege belongs to the client, not the lawyer. Accordingly, only the client can waive it.

The decision of Justice Jalil Asif in Han Vision Holdings Ltd v Raffles Interior Ltd (No. 3) [2026] CIGC (FSD) 49 ("Han Vision") (as one of several decisions relating to procedural matters, as well as summary judgment and injunction applications related to shareholder meetings) provides a Cayman Islands law reminder of the principles governing waiver of privilege, particularly where a party seeks to rely upon, summarise or publicise the contents of a privileged investigation report.

Legal privilege

At common law, legal professional privilege generally comprises two distinct categories:

• Legal advice privilege: legal advice privilege protects confidential communications between lawyer and client made for the dominant purpose of seeking or giving legal advice. The privilege extends not merely to the legal conclusions reached by lawyers but frequently to the communications through which legal advice is sought and given.
• Litigation privilege: litigation privilege is broader. It protects confidential communications and documents created for the dominant purpose of existing or contemplated litigation. It may extend to communications involving third parties, such as experts, investigators or witnesses, provided the dominant purpose test is satisfied.

A fundamental principle is that privilege can only subsist while confidentiality remains intact. Once confidentiality is destroyed, privilege generally falls away. This principle became central to the judge's reasoning in Han Vision.

Waiver of privilege

Express waiver: the clearest form of waiver occurs where a client voluntarily discloses privileged material or authorises its disclosure.

Implied waiver: more difficult questions arise where a party does not expressly waive privilege but nevertheless deploys or relies upon privileged material. The courts have repeatedly recognised that a party cannot selectively disclose only favourable portions of privileged material while withholding the remainder. Such conduct may amount to waiver because fairness requires that the other party be able to examine the entire context.

Objective test: a key point emphasised by the authorities is that waiver is assessed objectively. The question is not whether the party intended to waive privilege. Rather, the court asks whether, viewed objectively, the party's conduct has disclosed or deployed the privileged material in a manner inconsistent with maintaining confidentiality.

The judge's reliance on Documentary Evidence

Justice Asif expressly relied on the discussion in the book Documentary Evidence by Charles Hollander K.C. (15th edition Sweet & Maxwell, 2024) concerning so-called "non-waiver statements". At paragraph 107 of the judgment, the judge quoted paragraph 23 11 of Documentary Evidence, which explains that waiver is an objective, not subjective, doctrine. The authors state that declarations such as "nothing in this is intended to waive privilege" do not prevent a court from finding that privilege has in fact been waived.

The judge endorsed the authors' conclusion that:

• the intention of the party is not determinative;
• waiver is judged objectively; and
• once a party has obtained the forensic benefit of relying upon privileged material, it cannot ordinarily avoid the consequences by inserting a reservation of privilege.

The passage relied on by the judge drew support from Digicel (St Lucia) Ltd v Cable & Wireless plc [2009] EWHC 1437 (Ch).

The judge's reliance on Ivanishvili v Credit Suisse

The judge also referred to the Bermuda Court of Appeal decision in Ivanishvili v Credit Suisse [2020] 1 CA (Bda) 13 ("Ivanishvili"), quoting Gloster JA, who identified two important questions when determining whether waiver has occurred and, if so, its extent:

• What has actually been revealed?
  
  The court must determine whether the disclosure reveals:

• merely the existence of legal advice;
• merely the effect of legal advice; or
• the substance or content of the advice itself.
  
  The more extensively the actual content or substance is disclosed, the more likely waiver becomes.

• Has the material been deployed?
  
  The court must examine the circumstances of disclosure and ask whether the privileged material has been:
• relied upon;
• deployed; or
• used to advance a party's case.

A mere passing reference may not constitute waiver. However, deploying the material as part of a litigant's case commonly will. These principles from Ivanishvili became the framework through which Justice Asif analysed the status of the report at the heart of the Han Vision case.

What the judge found in Han Vision

The relevant issue concerned an interim investigation report prepared by onshore law firm DLA Piper [BQ1.1](the "DLA Report") for an independent board committee investigating allegations against Mr Zheng. The defendant company contended that the report remained privileged and resisted disclosure.  However, the judge held that privilege had been lost and ordered production of the report.

Publication of the interim findings

The judge noted that:

• the board committee had adopted written resolutions recording interim findings of the DLA Report;
• a public announcement had been issued through the Hong Kong Stock Exchange; and
• detailed extracts from the DLA Report had been published to shareholders and the market.

The published material went well beyond merely stating that a report existed. It set out detailed allegations and conclusions concerning Mr Zheng's conduct, including findings relating to misrepresentation, conflicts of interest, potential fraud and governance concerns.

Loss of confidentiality

The judge held that the publication of the extracted findings of and conclusions from the DLA Report had destroyed the confidentiality of the report. He stated that "Privilege cannot exist in the absence of confidentiality".
Since the company had intentionally informed shareholders and the investing public of the DLA Report's substantive conclusions, confidentiality no longer existed and, accordingly, privilege was lost.

Disclosure of substance rather than mere effect

Applying the reasoning referred to in Ivanishvili, the judge concluded that the documents published by the company disclosed the substance or content of the DLA Report, rather than merely referring to its existence or effect.

This was a critical finding because Ivanishvili distinguishes between:

• disclosing only the effect of legal advice, and
• disclosing its substance or content.

The judge found that the company had crossed that line.

Deployment in the litigation

The judge also found that Mr Ding of the defendant had not merely referred to the DLA Report. Rather, he relied upon and deployed the DLA Report's contents to justify the board's decision to postpone the extraordinary general meeting. The DLA Report, therefore, became part of the defendant's affirmative case in the litigation.

This directly reflected the second question identified by Gloster JA in Ivanishvili: whether the material has been deployed to advance a party's case. The judge concluded that it had.

Production ordered

Having found that:

• confidentiality had been destroyed;
• the substance of the report had been disclosed; and
• the contents had been deployed in support of the defendant's case,

Justice Asif held that the plaintiff was entitled to disclosure of the DLA Report pursuant to Grand Court Rule O.24 r.10. (where a party in pleadings or affidavits refers to any document the other party can give notice requiring that party to produce that document for the inspection of the party giving the notice). He therefore ordered the defendant to produce the DLA Report to the plaintiff.

Conclusion

The significance of this decision in Han Vision lies in the court's robust application of orthodox waiver principles.

The judgment confirms that:

• privilege depends upon confidentiality;
• waiver is assessed objectively, not by reference to a party's subjective intentions;
• boilerplate statements that privilege is not waived are generally ineffective;
• disclosure of the substance or content of privileged advice is far more likely to result in waiver than merely describing its effect; and
• a party who deploys privileged material to advance its case may be required to disclose the underlying document.

Directors of companies have been given the comfort of knowing that legal advice given to the company belongs to the company not the shareholder (by the Privy Council in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd and others (No. 2) [2025] UKPC 34). They need to be careful of prejudicing that protection by actions that could amount to a waiver of the company's privilege.

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