Lex Mundi Global Attorney-Client Privilege Guide |
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Trinidad and Tobago |
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(Latin America/Caribbean)
Firm
Hamel-Smith
Contributors
Catherine Ramnarine |
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| Is the ACP recognized in your jurisdiction? | Yes. Legal professional privilege is recognized in our jurisdiction and has two subsets (1) legal advice privilege and (2) litigation privilege (also referred to as the work product doctrine). For legal advice privilege to apply communication must be:
For litigation privilege to apply communication must be between attorney and client or either of them and a third party and must be:
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| 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... | N/A |
| 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? | No, there is no distinction between applying ACP in civil and criminal proceedings. Government authorities generally cannot require disclosure of privileged documents or communication but legislation may limit the scope of the privilege, typically to remove communication made with a view to furthering a criminal purpose from the scope of the privilege.
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| 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.) | We are not aware of any case in this jurisdiction establishing a test but our courts are likely to consider the English law in regard to questions of privilege very persuasive. We therefore consider that the principles in Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474 will apply so that the client will only be employees who are tasked with seeking and receiving legal advice on behalf of the corporation. |
| 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? | In-house counsel is not expected to meet a higher burden that outside counsel. For legal advice privilege to apply, in-house counsel must be acting in the capacity of a legal adviser. Since litigation privilege can apply to communication with third parties, it is possible for that privilege to apply even when in-house counsel is not acting in the capacity of a legal adviser. It should be noted that not all employees of a company will be treated as the client for the purpose of privilege. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | It has not expressly been recognized in any court decision in this jurisdiction of which we are aware, but we understand that it exists at English law and our courts are likely to consider the English law in regard to questions of privilege very persuasive. |
| How is the doctrine articulated in your jurisdiction? | N/A |
| Must a common interest agreement be in writing? | N/A |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | No. General rules on maintenance and champerty apply. The Code of Ethics for Attorneys-at-law prohibits the charging of contingency fees except for reasonable commissions on collection of liquidated claims with the prior agreement of the client.
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| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | N/A |
| Is the crime-fraud exception recognized in your jurisdiction? | N/A |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Section 52(8) of the Proceeds of Crime Act states that no information or matter required to be reported under section 55A (which requires the making of reports in relation to funds suspected of being proceeds of criminal conduct) shall be treated privileged if it is communicated or given with a view to furthering any criminal purpose. The exception also exists at common law and applies when the communication is such as to enable the commission of a crime, fraud or other illegal act. |
| 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)?) | Such information will be protected by litigation privilege which is recognized in this jurisdiction under the common law. |
| What are the elements of the protection in your jurisdiction? | Communication between attorney and client or either of them and a third party is protected when: |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | Yes. Section 11 of the Mediation Act states that any person who in the course of employment or training comes into possession of confidential information obtained in a mediation session shall not disclose such information except in certain specified circumstances. Section 13 of the Mediation Act states that evidence of a communication made in a mediation settlement or a document prepared for the purpose of, in the course of, or pursuant to a decision taken or undertaken given in a mediation session is not admissible in any proceedings except in certain specified circumstances. |
| Does your jurisdiction recognize a settlement negotiation privilege? | The ‘without prejudice’ rules apply so that negotiations between parties genuinely aimed at settling a dispute are inadmissible in the course of a trial of the dispute. |
Lex Mundi Global Attorney-Client Privilege Guide
Trinidad and Tobago
(Latin America/Caribbean) Firm Hamel-SmithContributors Catherine Ramnarine
Updated 08 Jun 2020Yes.
Legal professional privilege is recognized in our jurisdiction and has two subsets (1) legal advice privilege and (2) litigation privilege (also referred to as the work product doctrine).
For legal advice privilege to apply communication must be:
- between client and legal adviser; and
- for the dominant purpose of obtaining or giving legal advice.
For litigation privilege to apply communication must be between attorney and client or either of them and a third party and must be:
- in relation to existing litigation or reasonably contemplated litigation; and
- for the sole or dominant purpose of conducting that litigation or receiving legal advice.
N/A
No, there is no distinction between applying ACP in civil and criminal proceedings.
Government authorities generally cannot require disclosure of privileged documents or communication but legislation may limit the scope of the privilege, typically to remove communication made with a view to furthering a criminal purpose from the scope of the privilege.
We are not aware of any case in this jurisdiction establishing a test but our courts are likely to consider the English law in regard to questions of privilege very persuasive. We therefore consider that the principles in Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474 will apply so that the client will only be employees who are tasked with seeking and receiving legal advice on behalf of the corporation.
In-house counsel is not expected to meet a higher burden that outside counsel.
For legal advice privilege to apply, in-house counsel must be acting in the capacity of a legal adviser.
Since litigation privilege can apply to communication with third parties, it is possible for that privilege to apply even when in-house counsel is not acting in the capacity of a legal adviser.
It should be noted that not all employees of a company will be treated as the client for the purpose of privilege.
N/A
N/A
It has not expressly been recognized in any court decision in this jurisdiction of which we are aware, but we understand that it exists at English law and our courts are likely to consider the English law in regard to questions of privilege very persuasive.
N/A
N/A
No.
General rules on maintenance and champerty apply.
The Code of Ethics for Attorneys-at-law prohibits the charging of contingency fees except for reasonable commissions on collection of liquidated claims with the prior agreement of the client.
N/A
N/A
Section 52(8) of the Proceeds of Crime Act states that no information or matter required to be reported under section 55A (which requires the making of reports in relation to funds suspected of being proceeds of criminal conduct) shall be treated privileged if it is communicated or given with a view to furthering any criminal purpose.
The exception also exists at common law and applies when the communication is such as to enable the commission of a crime, fraud or other illegal act.
Such information will be protected by litigation privilege which is recognized in this jurisdiction under the common law.
Communication between attorney and client or either of them and a third party is protected when:
1. it is in relation to existing litigation or reasonably contemplated litigation; and
2. it is for the sole or dominant purpose of conducting that litigation or receiving legal advice.
No
Yes.
Section 11 of the Mediation Act states that any person who in the course of employment or training comes into possession of confidential information obtained in a mediation session shall not disclose such information except in certain specified circumstances.
Section 13 of the Mediation Act states that evidence of a communication made in a mediation settlement or a document prepared for the purpose of, in the course of, or pursuant to a decision taken or undertaken given in a mediation session is not admissible in any proceedings except in certain specified circumstances.
The ‘without prejudice’ rules apply so that negotiations between parties genuinely aimed at settling a dispute are inadmissible in the course of a trial of the dispute.