Definition
The second article of the 1963 Permanent Constitution of the State of Kuwait confirms that the legal structure of Kuwait is based on Shari’a rule (“Islamic Religious Law”). The principal source of law in the state of Kuwait is legislation deriving from Shari’a. It is the overall duty of the Amir to introduce, approve and enforce legislation in the State of Kuwait.
However, the legal system of the State of Kuwait is based on a variety of different legal codes, including French civil law, English common law, Islamic legal principles and Egyptian law, in comparison to many other Gulf states, such as the United Arab Emirates.
The principles of legal professional privilege and “without prejudice” communications do not apply per se in many civil law jurisdictions in the area and the parties have the right to use any document that could help their cause in civil litigation. That is the case in the State of Kuwait, which has no express provision with regard to legal professional privilege. Instead, under Islamic Religious Law, lawyer-client legal professional privilege is interpreted.
In fact, lawyers in the State of Kuwait are bound by confidentiality responsibilities that incorporate principles similar to legal professional privilege in many instances.
Legal professional privilege scope
Without the customer’s consent, legal professional privilege prevents all correspondence between a professional legal advisor and their client from being revealed. The right is for the client’s and not the lawyer’s sole benefit. The aim of this legal principle is to preserve one’s access to the justice system by ensuring that individuals can report to their legal advisers all relevant information without worrying that this disclosure will have negative consequences or prejudice them in the future.
A lawyer ceases to be bound by the legal professional privilege standards if that documentation or knowledge can be demonstrated by the lawyer:
At the time it was revealed to the prosecutor, it was in the public domain;
Entered the public domain through no fault of the lawyer after the time it was revealed to the lawyer; or
At the time it was revealed to the lawyer, demonstrated by contemporary documents, it was free of any duty of trust in the hands of the lawyer.
Notwithstanding the lawyer-client privilege, to the degree that such disclosure is needed by a valid order of a court or other governmental body having jurisdiction, a lawyer may disclose such documents/information provided that the lawyer provides the client with fair prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or restricting such disclosure
In the State of Kuwait, the principle of legal professional privilege is restricted only to the professional relationship between a lawyer and his client, through the responsibility of the lawyer to keep all details shared by his client confidential (pursuant to Kuwait Law No. 42/1964 organizing the legal profession). The partnership between a lawyer and his client, therefore, benefits from a narrow scope of privilege since the parties are separate persons and, of course, the lawyer owes the client a duty of confidentiality.
The same privilege rights do not tend to extend to in-house legal counsel representing the company’s officers, directors or staff, since they are not independent of the client. It could, however, be possible for a confidentiality arrangement to be placed in place to protect information or correspondence passing between in-house counsel and the employer.