Legal professional privilege

The second Article of the State of Kuwait's permanent Constitution of 1963 confirms that Kuwait's legal system is based upon Shari’a law ("Islamic Religious Law"). Legislation deriving from Shari’a is the main source of law in the state of Kuwait. The Amir has overarching responsibility for initiating, sanctioning and promulgating laws in the State of Kuwait.

However, in contrast to many other gulf states, such as the United Arab Emirates, the State of Kuwait's legal system is based upon a number of differing legal systems including French civil law, English common law, Islamic legal principles and Egyptian law.    

In many civil law jurisdictions in the region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in the State of Kuwait, which does not have any express provision in respect of legal professional privilege. Instead, lawyer-client legal professional privilege is interpreted under Islamic Religious Law.

Indeed, lawyers in the State of Kuwait are bound by duties of confidentiality which, in many cases, incorporate concepts similar to legal professional privilege. 

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:

• Was in the public domain at the time it was disclosed to the lawyer;
• Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
• Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law.  

The concept of legal professional privilege in the State of Kuwait is limited only to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all information disclosed by their client (pursuant to Kuwait Law No. 42/1964 organizing the legal profession). Accordingly, the relationship between a lawyer and their client benefits from a limited scope of privilege because the parties are independent entities and the lawyer, of course, owes a duty of confidentiality to the client.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent to the client. However, to protect information or communications passing between in-house counsel and the employer, it may be possible for a confidentiality agreement to be put in place.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Kuwait.

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