Monthly Archives: November 2012

Private Appointment of Receivers Slides

Gave a talk today for the Malaysian Institute of Accountants where it was a one-day talk with different speakers from law firms and accounting firms.

Along with my co-speaker, we tried to give practical tips distilled from the various case law.

My Prezi slides are below:

Opposing an Arbitral Award – Indemnity Costs

As a follow up on an earlier post on the Hong Kong Court of Appeal decision on indemnity costs where a party unsuccessfully opposes an arbitral award (whether through a setting aside of the award or opposing the enforcement), this post on the Kluwer Arbitration Blog summarises both the Hong Kong position as well as in Australia and England.

I look forward to similar submissions being presented for consideration here in Malaysia and for the Malaysian Courts to decide on the policy on whether indemnity costs should be awarded or not in such situations.

Joint Privilege: When It May Apply

A useful post on when joint privilege may apply, with reference to the English High Court decision of R (Ford) v The Financial Services Authority [2011] EWHC 2583 (Admin).

Joint interest privilege arises in cases where two separate parties can claim a joint interest in communications with a particular lawyer, and therefore it can only be waived jointly.

An example of where joint privilege might arise is in the management of a company; where the legal interests of the company and its directors will often coincide or overlap. However, in such scenarios, unless the lawyer is formally retained by both the company and its directors (to advise the directors in their personal capacity) then it does not automatically follow that the directors can claim that any particular communication is subject to joint privilege.

As summarised in the above blog post,

Having regard to the principles in Three Rivers (No 6), the Court also noted that ‘joint privilege should not arise casually or accidentally’. In order to avoid this, the Court laid down a clear test for establishing whether joint privilege could be claimed. The requirements of the test are that the person claiming joint privilege will need to establish that:

  • they communicated with the lawyer in question for the purpose of seeking legal advice in their personal capacity;
  • they made clear to the lawyer that 
they were seeking legal advice in 
that individual capacity (as opposed merely as representative of a corporation);
  • those with whom joint privilege was claimed knew or ought to have appreciated the legal position;
  • the lawyer knew or ought to have appreciated that they were communicating with the individual in that individual capacity; and
  • the communication with the lawyer 
was confidential.

Grounds of Judgment of Twin Advance v Polar Electro Europe BV

I had earlier blogged on the High Court decision in Twin Advance (M) Sdn Bhd v Polar Electro Europe BV confirming that where the seat of arbitration is outside of Malaysia, the Malaysian Courts have no jurisdiction under section 37 of the Arbitration Act 2005 or under its inherent jurisdiction to set aside such an arbitral award.

I now set out the written Grounds of Judgment of this decision.

Legal Professional Privilege to Extend to Accountants’ Advice?

The UK Supreme Court in Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) is presently hearing an appeal on whether, at common law, legal professional privilege (“LPP”) applies to communications between a client and an accountant seeking and giving legal advice on tax law. At first glance, it would appear that the answer to this question should be no, since LPP seems to require a lawyer to provide advice. It will be interesting to see if the Supreme Court decides to extend LPP so widely to cover accountants’ advice.

In Malaysia, it is also very common to have accountants provide tax advice and where the boundaries of whether it amounts to legal advice are not very clear. Often, the accountants are the ones who are better qualified and more experienced in giving such tax advice compared to lawyers. Even if the Supreme Court does decide to extend LPP at common law, Malaysia could possibly not go down such a route since it could be argued that LPP in Malaysia solely stems from sections 126 and 128 of the Evidence Act 1950 which uses the term “advocate.” The Interpretation Act defines an “advocate” as “a person entitled to practise as an advocate or as an advocate and solicitor under the law in force in any part of Malaysia.”

I will update this blog on this Prudential decision once I read about it. In the meantime, I came across an interesting blog post on the issues and facts of this Supreme Court case on Global Corporate Law.