CIVIL SERVANTS CORRESPONDENCE PROTECTED BY PRIVILEGE

Baseline Architects Ltd. & Others v National Hospital Insurance Fund
High Court of Kenya  [2008] eklr [http://www.kenyalaw.org/]
Warsame J  7th May, 2008

This case raised a fundamental problem of balancing or reconciling
two kinds of public interest which may clash due to the stakes
involved. On the one hand there is the public interest that harm
should not be done to the nation or the public by disclosure of
certain documents and on the other hand there is the public interest
that administration of justice should not be frustrated by
withholding of documents which must be produced in evidence if
justice is to be done.

The law is that no one should be compelled to produce documents in
his possession which any other person would be entitled to refuse to
produce if they were in his possession unless there is mutual
consent.

For purposes of public policy and protection, a client may consult
an advocate for the purpose of his cause of action and of litigation
which is pending and that the policy of the law says that in order to
encourage free intercourse between him and his counsel the client has
the privilege of preventing his advocate from disclosing anything
which he gets when so employed and of preventing its being used
against him, although it might otherwise be evidence against him.
This privilege also extends to the Attorney General for he provides
legal opinion and advise to the Government and all public
corporations in areas where his intervention is sought or necessary.

The applicant, the National Hospital Insurance Fund appointed the
2nd respondent as consulting quantity surveyor for a proposed
resource centre in Karen Nairobi. The 1st respondent was also
instructed to be the lead consultant for the design and supervision
to completion of the proposed training centre.

However, a dispute arose between the applicant and the respondents
which was referred to arbitration. Thereafter an award was made and
published in favour of the respondents to the tune of Kshs. 350
million.

NHIF was aggrieved by the decision of the arbitrator they filed the
present application to expunge certain documents from the record.
Reason being that the documents were allegedly privileged.

The applicant, in support of the application, submitted that the
documents annexed to the respondents' affidavits were in breach of
privilege and therefore could not be a basis of adjudication on the
issues before court. The applicant's counsel submitted that the
evidence adduced in the two affidavits was not admissible because the
documents related to an opinion from the Attorney General in respect
of an ongoing litigation or advice given by an advocate to his
client. Counsel submitted that the information was privileged
communication which could not be used against the applicant.

Counsel for the respondents submitted that section 137 and 134 of
the Evidence Act (Cap. 80) permitted the respondents to produce the
evidence on record. He also submitted that the documents produced
were exceptional to the rule of privilege and confidential
information. And that the communication with the Attorney General
fell within the permitted exceptions of section 137 of the Evidence
Act.

The court, after considering counsel submissions, stated that a
party to a litigation is not obliged to produce documents which do
not belong to him but which have been entrusted to his company by a
third party in confidence. It would be an abuse of that confidence to
disclose it, without the permission of the owner of the original
documents.

The court went further to say that where a document has been
communicated voluntarily for a limited and restricted purpose, it
would be unjust and unlawful to allow the original or a copy of it to
be communicated in any manner except for that purpose.

However the court opined in certain cases a possible injury to
public interest must be balanced with another risk which is the
frustration of administration of justice by such refusal.

The documents in question were meant for the internal consumption
and use of the applicant and other Government bodies who would be
concerned or interested in the outcome of the dispute between the
parties. The documents from the Chief Executive Officer of the
applicant to the Attorney General were marked as confidential because
the CEO was seeking an opinion and/or advice of the AG.

The court posed the question whether the documents in question were
within the boundary of documents which any right minded person would
say clearly ought not to be the subject of production in an action.

The court held that it is of utmost importance that public service
should function properly and it cannot do so unless commonplace
communications between one civil servant and another are privileged
from production. It would be an injustice to civil servants to hold
that they are so timid that they would not write freely and candidly
unless they know what they wrote could in no circumstances
whatsoever, come to the light of the day to be used by a person not
intended to see or rely on the contents of such documents.

Public policy requires that the most unreserved communication should
take place between public servants and it should not be subject to
restraints or limitations. But it is quite clear that if the
documents in possession of the respondents was allowed to be
produced, used and relied upon in court, that would in essence
restrain the freedom of communication and render public officers to
proceed in a more cautious, guarded and reserved manner in their
communication and concerns.

The contents of the documents clearly showed that the documents
belonged to a class which on grounds of public interest must, as a
class, be withheld from production. The documents fell within the
scope of privilege and confidential correspondence in the course of
obtaining legal advice. It would be both wrong and dangerous if
parties were allowed to intercept legal opinions between the office
of the Attorney General and government departments and to rely on the
same for the success of their case, because they thought the documents
are favourable to the success of their case.

The balance of public good in the circumstances of this particular
case tilted in favour of refusing the production of the subject
documents.

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Reported by BENJAMIN MBATIA of KLR