Chan Yee Chong provides the answer.
 
As part of their legal practice, law firms issue invoices to their clients on a daily basis. The question that arose in Ernest Cheong Yong Yin v Kamariyah Hamdan & 3 Ors (an unreported decision) is whether an invoice issued by a law firm to its client is a privileged document.
 
BRIEF FACTS
 
The first, second and third defendants are advocates and solicitors and were at all material times partners of a law firm ("M&Co"). The fourth defendant was at all material times a partner of M&Co in its Petaling Jaya office. The fourth defendant subsequently left M&Co and established his own law firm, P&Co.
 
The plaintiff appointed M&Co to represent him as a respondent in a Federal Court appeal ("Appeal"). The Appeal was handled by the fourth defendant in his capacity as a partner of the Petaling Jaya office of M&Co.
 
The Federal Court dismissed the Appeal with costs. Thereafter, M&Co sent an invoice ("Invoice") to the plaintiff for their professional fees in respect of the Appeal.
 
The plaintiff proceeded to tax the bill of costs in respect of the Appeal. The law firm which represented the appellant in the Appeal opposed the amount claimed by way of costs in the taxation proceedings and exhibited a copy of the Invoice to his affidavit. The copy of the Invoice had been provided to the appellant's lawyers by P&Co upon the request by the former.
 
The plaintiff filed a claim against all four defendants for damages for breach of contract pursuant to misconduct for disclosure of a privileged document belonging to the plaintiff without the plaintiff’s consent and/or using the privileged document in court proceedings without seeking confirmation if the plaintiff’s consent had been obtained.
 
DECISION OF THE HIGH COURT
 
Counsel for the plaintiff contended that the Invoice was a privileged document and could not be released without the express consent of the plaintiff pursuant to sub-section (1) of Section 126 of the Evidence Act ("Act") which provides as follows:
 
"No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment."
 
On the other hand, counsel for the defendants submitted that the Invoice did not come within the ambit of Section 126 of the Act.
 
Counsel for each party cited authorities from various jurisdictions in support of their respective contentions.
 
The learned judge cited Wheeler v Le Marchant [1887] 17 Ch. D. 675, 682 where Jessel M.R. explained that legal professional privilege "is a rule established and maintained solely for the purpose of enabling a man to obtain legal advice with safety."
 
According to the judge, the spirit and object of Section 126 is to protect the confidentiality of information or legal advice or documents exchanged between a client and his solicitor. The section refers to admissibility of communication, advice given and more importantly, for protection of the client, namely of any privileged communications.
 
His Lordship then set down 6 issues for determination, of which the 3 crucial ones are as follows:
 
(1)     Whether the Invoice is a privileged document under Section 126 of the Act;
 
(2)     Whether the Invoice contained any element of legal advice or matters of confidence between the solicitor and client; and
 
(3)     Whether the Invoice is confidential information or falls within the category of documents protected by Section 126 of the Act.
 
In order to determine whether the Invoice is a privileged document, the court had to look at the substance and reality of the document, and not merely the label given to it, and the circumstances in which it came into existence. Furthermore, the court had to read Section 126 in its entirety together with the Invoice.
 
The learned judge then answered the 3 issues set out above in the negative and dismissed the plaintiff's claim. As the court's answers to these 3 issues were sufficient to dispose of the claim, the Court was of the view that it was not necessary to decide on the remaining issues.
 
Among the reasons for the Court's decision are the following:
 
(1)        The Invoice did not contain any specific communication, advice or details between the plaintiff and M&Co. It was just an invoice, a note from M&Co requesting payment from the plaintiff, its client, and could not be treated or included as a confidential document or which contained privileged information as envisaged or protected by Section 126;
 
(2)        The Invoice did not arise in the course and for the purpose of the solicitor’s professional employment and does not fall within the recognized categories of privileged information or document as envisaged by Section 126;
 
(3)        The word ‘privilege’ used in Section 126 cannot be considered or read in isolation but must necessarily be read together with the word ‘confidentiality’ as both are interrelated and intertwined;
 
(4)        For litigation privilege to apply, there must be confidential communication between client and solicitor made for the dominant purpose of the case in litigation. The Invoice did not contain any advice or confidential communication between the plaintiff and M&Co in the course and for the purpose of the solicitor's employment;
 
(5)        The Invoice did not contain any privileged information which could jeopardize the confidentiality of any legal advice given to the plaintiff and did not provide any information as to the detail nature of the work done or services rendered;
 
(6)        Even assuming that the Invoice as to the payment of fees is regarded as confidential, the contents of that communication by the lawyer is not privileged information as the contents had not disclosed the nature of the communication between the solicitor and his client;
 
(7)        The protection covered by Section 126 is basically to refer to communication between solicitor and client and must necessarily be for the purpose of enabling the client to communicate with his solicitor and obtain the necessary advice in respect of the brief intended or handed to the solicitor. The Invoice and its content did not fall within the ambit of the privileged communications as envisaged by Section 126;
 
(8)        The Court is not bound to give a watertight definition or accept as a blanket rule that all communications by clients are protected by professional privilege under Section 126. What is important is the nature of the contents and the context in which the communication was conducted. The Invoice had nothing to do with any advice which the solicitor may have given to its client;
 
(9)        When a lawyer submits an invoice to a client, he does so as a supplier of a service. The lawyer’s relationship with the client is one of creditor and debtor. The amount owing takes on an identity distinct from the service itself. The Invoice does not merit protection envisaged under Section 126 and the plaintiff cannot extend the protection given to him under Section 126 to the Invoice as the same is not covered by Section 126.
 
CONCLUSION
 
The decision of the High Court in Ernest Cheong Yong Yin v Kamariyah Hamdan & 3 Ors is noteworthy as it appears to be the first decision in Malaysia to consider whether an invoice issued by a law firm to its client is a privileged document under Section 126 of the Act.
 
In determining whether an invoice issued by a law firm to its client falls within the ambit of Section 126 of the Act, the court has to consider the contents of the document on a case-to-case basis. If an invoice does not set out the nature of the advice or services rendered in detail, it is unlikely to come within the ambit of that section.
 
Nevertheless, law firms should exercise caution in preparing their invoices or releasing copies of the same to third parties as the Court had in this case expressed the view that it may have come to a different conclusion if the Invoice had contained details or narration of the type or nature of the advice given and the communication between the parties concerned.