	Lex Mundi Global Attorney-Client Privilege Guide
	Bahamas
	(Latin America/Caribbean) Firm McKinney, Bancroft & Hughes Contributors Timothy Eneas Updated 09 Sep 2021
Is the ACP recognized in your jurisdiction?	Yes, ACP is recognized in The Bahamas and is referred to as legal professional privilege (“LPP”)¹. The privilege belongs to the client² and is protected by statute in sections 135 and 136 of the Evidence Act, CH 65. An attorney also has a professional duty pursuant to The Bahamas Bar (Code of Professional Conduct) Regulation Rule IV to hold all information concerning the client in strict confidence. __________ ¹ Three Rivers District Council and others v Governor and Company of the Bank of England (No 5) - [2003] QB 1556 (“Three Rivers (No. 5)”). ² Quality Services Limited v. Second Mate Bahamas Limited - [2015] 2 BHS J. No. 69 applying Three Rivers District Council and others v Governor and Company of the Bank of England [2004] UKHL 48.
If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...	Not applicable.
Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?	There is no distinction made in applying the principles/rules relative to LPP in civil and criminal proceedings. LPP in The Bahamas is generally considered to be absolute. The absolute nature of the privilege as observed in Three Rivers (No. 6)³ is likely to be applied in The Bahamas. See the Judgment of Lord Scott of Foscote on page 1282 at paragraph 25 of the law report: “… [I]f a communication or document qualifies for the legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute [citation omitted], but it is otherwise absolute. There is no balancing exercise that has to be carried out [citation omitted]. The Supreme Court of Canada has held that legal professional privilege although of great importance is not absolute and can be set aside if a sufficiently compelling public interest for doing so, such as public safety, can be shown [citation omitted]. But no other common law jurisdiction has, so far as I am aware, developed the law of privilege in this way. Certainly in this country legal professional privilege, if it is attracted by a particular communication between lawyer and client or attached to a particular document, cannot be set aside on the ground that some other higher public interest requires that to be done.” __________ ³Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48.
In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)	The test to determine who is the client in the corporate context is not settled under Bahamian law. As a common law jurisdiction, the House of Lords case in Three Rivers (No. 6) is instructive on how the issue is likely to be addressed by the Bahamian Courts. In that case, their Lordships declined to opine on whether communications from employees of the client to the attorneys attracted LPP but acknowledged the ruling in Upjohn as “valuable” and indicated that its application in the UK was “debatable”. Lord Scott identified the “guiding precedent” on this issue as Three Rivers (No. 5).⁴ The court, in that case, held that ultimately, only the documents produced for the dominant purpose of taking legal advice attracted LPP. Who within the corporation is entitled to claim LPP is determined by the court considering all of the circumstances of the case and ultimately the dominant purpose of the communication. The dominant purpose must in all circumstances be to obtain legal advice. __________ ⁴Three Rivers (No. 6) at page 1290 paragraph 47.
Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?	This issue has not been specifically addressed under Bahamian law. However, in the decision in Three Rivers (No. 6) the Court alluded to the issue when it commented on what was required of a solicitor responsible for advising a client on all matters of business. The Court observed that the solicitor’s communications would only attract LPP where he is acting in his capacity as an attorney and where the communications are in “a relevant legal context”. For the purpose of determining the existence of a “relevant legal context” Lord Scott opined that “... the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.”⁵ This commentary supports the conclusion that there may be circumstances where in-house counsel may have the added burden of satisfying the aforementioned test before a communication will attract LPP. ^__________ ⁵Three Rivers (No. 6) at page 1288 paragraph 38 B.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Not applicable.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Not applicable.
Is the common interest doctrine recognized in your jurisdiction?	Yes, the common interest doctrine is recognized in The Bahamas.
How is the doctrine articulated in your jurisdiction?	The doctrine has not received statutory treatment in The Bahamas but has been applied utilizing the English common law approach. In the case of St. George and others v. Hayward and others - [2008] 2 BHS J No. 37 the Bahamian Supreme Court applied the reasoning of Denning, M.R. in Butes Gas and Oil Co. v Hammer (No. 3) [1981] Q B 223 where the doctrine is expressed as follows: “If two parties with a common interest and a common solicitor exchange information for the dominant purpose of informing each of them of the facts, issue and advice and of both, or either, obtaining legal advice or further legal advice in respect of contemplated or pending litigation, the documents or copy documents containing that information are privileged from production in the hands of either.”
Must a common interest agreement be in writing?	There is no requirement in The Bahamas for a common interest agreement to be in writing.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Litigation funding is permitted in The Bahamas but it may be subject to and restricted by the common law principles governing the torts of champerty and maintenance. Historically, these principles operated to prevent third-party financial support of litigation without just cause. In a modern context, the application of the principles of champerty and maintenance have been relaxed with a more liberal approach being taken by the Courts regarding the question of lawful justification.⁶ There are no express professional rules governing litigation funding in The Bahamas. The Bahamas Bar (Code of Professional Conduct) Regulations sets out rules and regulations relative to conflicts of interest, their disclosure and resolution. Under the regulations, a conflicting interest includes a financial interest of an attorney. ^__________ ⁶ Massai Aviation Services and Aerostar Limited v. AG and Bahamasair Holdlings limited PC Appeal No. 58 of 2005.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	No, the courts have not addressed this.
Is the crime-fraud exception recognized in your jurisdiction?	Yes, the crime-fraud exception is recognized in The Bahamas.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	Section 135(2) of the Evidence Act provides that nothing in subsection (1)⁷ shall protect from disclosure “(a) anything done or any communication made in furtherance of any illegal purpose; (b) any fact observed by any counsel and attorney in the course of his employment as such, showing that any crime or fraud had been committed since the commencement of his employment”. ^__________ ⁷“135. (1) Subject to subsection (2), no counsel and attorney, unless with his client’s express consent, shall at any time be permitted to disclose in evidence —(a) any communication made to him in the course and for the purpose of his employment as such, by or on behalf of his client; (b) the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment; (c) any advice given by him to his client in the course and for the purpose of such employment.”
Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)	The Bahamian statutory provisions relating to LPP do not specifically refer to information obtained or prepared in anticipation of litigation however section 135(1) of the Evidence Act protects from disclosure any communication, and the contents or condition of any document and any advice given during the course of and for the purpose of the attorney’s employment.⁸ This section is accepted as being wide enough to include information obtained or prepared in anticipation of litigation. ^__________ ⁸ Evidence Act section 135(1).
What are the elements of the protection in your jurisdiction?	See A above and footnote 8.
Does your jurisdiction recognize an accountant-client privilege?	In The Bahamas, accountants owe a professional duty of confidentiality to their clients.⁹ There are no statutory provisions establishing accountant-client privilege in The Bahamas.¹⁰ ^__________ ⁹Rule 5 Public Accountants (Rules of Professional Conduct) Regulations. ¹⁰ See also Three Rivers (No. 6) at 1283 paragraph 28 “In relation to all other confidential communications whether between…accountant and client…the common law recognizes the confidentiality of the communication, will protect the confidentiality up to a point, but declines to allow the communication the absolute protection allowed to communications between lawyers and client giving or seeking legal advice.”
Does your jurisdiction recognize a mediation privilege?	There are no statutory provisions or common law principles operative in The Bahamas which expressly recognize mediation privilege.
Does your jurisdiction recognize a settlement negotiation privilege?	There are no statutory provisions or common law principles operative in The Bahamas which expressly recognize settlement negotiation privilege. Settlement negotiations that are expressed or proven to have been made “without prejudice” will receive statutory protection similar to privilege pursuant to section 16 of the Evidence Act, 1996.¹¹ The Bahamas Court of Appeal¹² described the law with respect to “without prejudice” communications with reference to Halsbury’s Laws of England¹³ and Houghton v Houghton¹⁴stating that: “[O]ral or written communications made between parties with a view to settling a dispute and which are expressed or proven to have been made “without prejudice” cannot generally be admitted into evidence.” __________ ¹¹ Section 16 of the Evidence Act, 1996 - “No evidence shall be given in any civil proceeding of any admission which was made upon an express condition that it should be without prejudice to the rights of the party making it, or in circumstances from which the court can infer that the parties agreed together that evidence should not be given.” ¹² Collins and another v. C. B. International Construction And Development Limited - [2011] 1 BHS J. No. 97. ¹³ 4th edition, Volume 17, paragraph 212. ¹⁴(1852) 15 Beav. 278.

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Is the ACP recognized in your jurisdiction?

Yes, ACP is recognized in The Bahamas and is referred to as legal professional privilege (“LPP”)¹. The privilege belongs to the client² and is protected by statute in sections 135 and 136 of the Evidence Act, CH 65. An attorney also has a professional duty pursuant to The Bahamas Bar (Code of Professional Conduct) Regulation Rule IV to hold all information concerning the client in strict confidence.

__________

¹ Three Rivers District Council and others v Governor and Company of the Bank of England (No 5) - [2003] QB 1556 (“Three Rivers (No. 5)”).

² Quality Services Limited v. Second Mate Bahamas Limited - [2015] 2 BHS J. No. 69 applying Three Rivers District Council and others v Governor and Company of the Bank of England [2004] UKHL 48.

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...

Not applicable.

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?

There is no distinction made in applying the principles/rules relative to LPP in civil and criminal proceedings.

LPP in The Bahamas is generally considered to be absolute. The absolute nature of the privilege as observed in Three Rivers (No. 6)³ is likely to be applied in The Bahamas. See the Judgment of Lord Scott of Foscote on page 1282 at paragraph 25 of the law report:

“… [I]f a communication or document qualifies for the legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute [citation omitted], but it is otherwise absolute. There is no balancing exercise that has to be carried out [citation omitted]. The Supreme Court of Canada has held that legal professional privilege although of great importance is not absolute and can be set aside if a sufficiently compelling public interest for doing so, such as public safety, can be shown [citation omitted]. But no other common law jurisdiction has, so far as I am aware, developed the law of privilege in this way. Certainly in this country legal professional privilege, if it is attracted by a particular communication between lawyer and client or attached to a particular document, cannot be set aside on the ground that some other higher public interest requires that to be done.”

__________

³Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2004] UKHL 48.

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)

The test to determine who is the client in the corporate context is not settled under Bahamian law. As a common law jurisdiction, the House of Lords case in Three Rivers (No. 6) is instructive on how the issue is likely to be addressed by the Bahamian Courts. In that case, their Lordships declined to opine on whether communications from employees of the client to the attorneys attracted LPP but acknowledged the ruling in Upjohn as “valuable” and indicated that its application in the UK was “debatable”. Lord Scott identified the “guiding precedent” on this issue as Three Rivers (No. 5).⁴

The court, in that case, held that ultimately, only the documents produced for the dominant purpose of taking legal advice attracted LPP. Who within the corporation is entitled to claim LPP is determined by the court considering all of the circumstances of the case and ultimately the dominant purpose of the communication. The dominant purpose must in all circumstances be to obtain legal advice.

__________

⁴Three Rivers (No. 6) at page 1290 paragraph 47.

Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?

This issue has not been specifically addressed under Bahamian law. However, in the decision in Three Rivers (No. 6) the Court alluded to the issue when it commented on what was required of a solicitor responsible for advising a client on all matters of business. The Court observed that the solicitor’s communications would only attract LPP where he is acting in his capacity as an attorney and where the communications are in “a relevant legal context”. For the purpose of determining the existence of a “relevant legal context” Lord Scott opined that “... the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.”⁵ This commentary supports the conclusion that there may be circumstances where in-house counsel may have the added burden of satisfying the aforementioned test before a communication will attract LPP.

^__________

⁵Three Rivers (No. 6) at page 1288 paragraph 38 B.

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

Not applicable.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Not applicable.

Is the common interest doctrine recognized in your jurisdiction?

Yes, the common interest doctrine is recognized in The Bahamas.

How is the doctrine articulated in your jurisdiction?

The doctrine has not received statutory treatment in The Bahamas but has been applied utilizing the English common law approach. In the case of St. George and others v. Hayward and others - [2008] 2 BHS J No. 37 the Bahamian Supreme Court applied the reasoning of Denning, M.R. in Butes Gas and Oil Co. v Hammer (No. 3) [1981] Q B 223 where the doctrine is expressed as follows:

“If two parties with a common interest and a common solicitor exchange information for the dominant purpose of informing each of them of the facts, issue and advice and of both, or either, obtaining legal advice or further legal advice in respect of contemplated or pending litigation, the documents or copy documents containing that information are privileged from production in the hands of either.”

Must a common interest agreement be in writing?

There is no requirement in The Bahamas for a common interest agreement to be in writing.

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

Litigation funding is permitted in The Bahamas but it may be subject to and restricted by the common law principles governing the torts of champerty and maintenance. Historically, these principles operated to prevent third-party financial support of litigation without just cause. In a modern context, the application of the principles of champerty and maintenance have been relaxed with a more liberal approach being taken by the Courts regarding the question of lawful justification.⁶

There are no express professional rules governing litigation funding in The Bahamas. The Bahamas Bar (Code of Professional Conduct) Regulations sets out rules and regulations relative to conflicts of interest, their disclosure and resolution. Under the regulations, a conflicting interest includes a financial interest of an attorney.

^__________

⁶ Massai Aviation Services and Aerostar Limited v. AG and Bahamasair Holdlings limited PC Appeal No. 58 of 2005.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

No, the courts have not addressed this.

Is the crime-fraud exception recognized in your jurisdiction?

Yes, the crime-fraud exception is recognized in The Bahamas.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

Section 135(2) of the Evidence Act provides that nothing in subsection (1)⁷ shall protect from disclosure “(a) anything done or any communication made in furtherance of any illegal purpose; (b) any fact observed by any counsel and attorney in the course of his employment as such, showing that any crime or fraud had been committed since the commencement of his employment”.

^__________

⁷“135. (1) Subject to subsection (2), no counsel and attorney, unless with his client’s express consent, shall at any time be permitted to disclose in evidence —(a) any communication made to him in the course and for the purpose of his employment as such, by or on behalf of his client; (b) the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment; (c) any advice given by him to his client in the course and for the purpose of such employment.”

Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)

The Bahamian statutory provisions relating to LPP do not specifically refer to information obtained or prepared in anticipation of litigation however section 135(1) of the Evidence Act protects from disclosure any communication, and the contents or condition of any document and any advice given during the course of and for the purpose of the attorney’s employment.⁸ This section is accepted as being wide enough to include information obtained or prepared in anticipation of litigation.

^__________

⁸ Evidence Act section 135(1).

What are the elements of the protection in your jurisdiction?

See A above and footnote 8.

Does your jurisdiction recognize an accountant-client privilege?

In The Bahamas, accountants owe a professional duty of confidentiality to their clients.⁹ There are no statutory provisions establishing accountant-client privilege in The Bahamas.¹⁰

^__________

⁹Rule 5 Public Accountants (Rules of Professional Conduct) Regulations.

¹⁰ See also Three Rivers (No. 6) at 1283 paragraph 28 “In relation to all other confidential communications whether between…accountant and client…the common law recognizes the confidentiality of the communication, will protect the confidentiality up to a point, but declines to allow the communication the absolute protection allowed to communications between lawyers and client giving or seeking legal advice.”

Does your jurisdiction recognize a mediation privilege?

There are no statutory provisions or common law principles operative in The Bahamas which expressly recognize mediation privilege.

Does your jurisdiction recognize a settlement negotiation privilege?

There are no statutory provisions or common law principles operative in The Bahamas which expressly recognize settlement negotiation privilege.

Settlement negotiations that are expressed or proven to have been made “without prejudice” will receive statutory protection similar to privilege pursuant to section 16 of the Evidence Act, 1996.¹¹

The Bahamas Court of Appeal¹² described the law with respect to “without prejudice” communications with reference to Halsbury’s Laws of England¹³ and Houghton v Houghton¹⁴stating that:

“[O]ral or written communications made between parties with a view to settling a dispute and which are expressed or proven to have been made “without prejudice” cannot generally be admitted into evidence.”

__________

¹¹ Section 16 of the Evidence Act, 1996 - “No evidence shall be given in any civil proceeding of any admission which was made upon an express condition that it should be without prejudice to the rights of the party making it, or in circumstances from which the court can infer that the parties agreed together that evidence should not be given.”

¹² Collins and another v. C. B. International Construction And Development Limited - [2011] 1 BHS J. No. 97.

¹³ 4th edition, Volume 17, paragraph 212.

¹⁴(1852) 15 Beav. 278.

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