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Showing contexts for: Litigation Privilege in Larsen & Toubro Limited vs Prime Displays (P) Ltd., Abiz Business ... on 15 March, 2002Matching Fragments
7. The learned senior counsel appearing for the respondents, Shri Jethmalani, did not dispute the proposition that a communication between a client and his legal adviser in relation to anticipated litigations would be entitled to a privilege, but relying on the judgment of the House of Lords in the case of Waugh v. British Railways Board (1979) 2 All ER 1169 (HL), he submits that the privilege can be claimed, if the only or the dominant purpose of the documents coming into existence was to refer to the legal advisor for advice and use in litigation. He further submits that even after the document is privileged, in case the document coming into existence is relevant, secondary evidence of that document is admissible. He relies on the provisions of Section 5 of the Evidence Act and the judgment of the Supreme Court in the case of H.H. Advani v. State of Maharashtra to submit that the Evidence Act is the complete code and relevance and admissibility of the evidence must be decided on the basis of the provisions of the Evidence Act. In support of the submission that secondary evidence of privileged document is admissible, he relies on the judgment in the case of Calcraft v. Guest (1898) 1QB 759 -^Goddard v. Nationwide Building Society (1987) 1 QB 670 ; ITC Film Distributors Ltd. v. Video Exchange (1982) 1 Ch 431. He submits that the cases falling under Section 123 of the Evidence Act do not apply to the cases governed by Section 126 and Section 129 of the Evidence Act. He further submits that all the 21 documents fall within the proviso to Section 126 of the Act as they are in furtherance of an illegal purpose, i.e., fabrication of evidence to defeat a lawful claim of the respondents.
13. It is clear from the above quoted observations that in order to extend the privilege to a document, it has to be shown that the document came into existence in anticipation of litigation for being used in litigation. In this regard averments in paragraphs 3, 4 and 5 of the affidavit filed in support of the applications are relevant. They read as under :
"3. I say and submit that the said documents are clearly privileged communications, inter alia, being in the nature of both internal legal advice and also opinions of counsel as well as in anticipation of litigation. I say that under the provisions of the Indian Evidence Act, and in law, the said documents would be attached with privilege and hence not capable of being referred to, relied upon or produced in this or any other proceedings.
15. The privilege that attaches to a document coming into existence in anticipation of litigation is the legal professional privilege. The principle behind this privilege is summarised in the judgment of the House of Lords in the case of Waugh [(1979) 2 All ER 1169 (HL)] referred to above, which is relied on behalf of the respondents themselves. In this judgment Lord Simon of Glaisdale observes thus :
"This system of adversary forensic procedure with legal professional advice and representation demands that communications between lawyer and the client should be confidential, since the lawyer is for the purpose of litigation, merely the client's alter ego. So too material which is to go into the lawyer's (i.e., the client's) brief or file for litigation. This is the basis for the privilege against disclosure of material collected by or on behalf of a client for the use of his lawyer in pending or anticipated litigation."
16.4 Sections 126 and 129 of the Evidence Act protect the communications between a lawyer and client made during the employment of the lawyer. In my opinion, these provisions by necessary implication protect the documents prepared by the client in anticipation of litigation either for seeking legal advice or for using them in that litigation.
16.5 In my opinion, therefore, it can be safely said that in terms of the provisions of Section 126 and Section 129 of the Evidence Act, the legal professional privilege incorporated in those provisions attaches to a document coming into existence in anticipation of litigation. From the above discussion, it is clear that on the basis of the material that is produced by the parties on record, it can be safely said that all the 21 documents to which these company applications relate came into existence in anticipation of litigation for being used in the litigation for the purpose of litigation or for the purpose of defence [against] that litigation and, therefore, they are privileged documents within the meaning of Sections 126 and 129 of the Evidence Act.