In the recent decision of University of Dundee v Chakraborty, the EAT held that legal privilege does not apply retrospectively to protect an original version of an investigation report that was subsequently amended upon legal advice.
The Claimant raised a grievance and an internal independent investigator was appointed by his employer to prepare an investigation report. Prior to conclusion of the report, the Claimant issued claims of race discrimination and harassment against his employer.
Following completion of an initial draft, the employer instructed an external solicitor to review the investigation report. A number of suggested amendments were made by the solicitor before a revised report was disclosed to the Claimant. The Claimant applied for disclosure of the original report and the employer resisted the application on the basis that the original report attracted legal advice privilege. The ET disagreed that the original report attracted legal privilege and made the disclosure order. The employer appealed.
The EAT dismissed the appeal on the basis that legal privilege did not apply to the original report at the time of its creation. The EAT held that litigation privilege also did not apply, as the original report was created in response to a grievance brought under an internal policy rather than in contemplation of litigation. The employer argued that legal privilege applied retrospectively, however this was rejected by the EAT.
Privilege is a fundamental legal right and entitles a party to withhold certain documents during the disclosure process in litigation or as part of Data Subject Access requests. There are two main types of privilege:
- Legal advice privilege
- Litigation privilege
There are strict rules when privilege applies and it can only be relied on in certain circumstances.
Legal advice privilege
Legal advice privilege can apply regardless of whether litigation is contemplated. It protects confidential communications between a lawyer and a client with the dominant purpose of giving or seeking legal advice.
For legal advice privilege to apply, there must have been a confidential communication given by a qualified lawyer, which includes either a solicitor or barrister, which has the dominant purpose of giving or receiving legal advice. The term ‘legal advice’ is widely construed and covers both written and oral communications. It must also be given to an ‘authorised client’, which refers only to individuals who are authorised to give instructions and receive advice. For example, not all employees will be authorised to receive legal advice on behalf of their employer.
Care should be taken with any preparatory material which is not communicated to the lawyer, as this may not be privileged.
In addition, it is important for employers to consider who they are receiving advice from to ascertain whether it will be privileged. The recent case of Trentside Manor Care Ltd -v- Raphael confirmed that advice a care home received from a HR and employment law advice team about an employee’s flexible working request did not attract legal advice privilege. This was because notwithstanding that the advice team was headed by a solicitor and the majority of the managers were legally qualified, the advice in question was provided by non-lawyers.
Litigation privilege is wider than legal privilege as it can apply to written or oral communications with third parties, such as accountants and other non-legal advisors. Litigation privilege only protects confidential communications which relate to litigation which has either commenced or is in contemplation and which is for the dominant purpose of use in the litigation. For litigation to be ‘in contemplation’, there must be more than a mere possibility of litigation. When determining whether the communication is for the ‘dominant purpose’ of litigation, the court will assess its purpose objectively, taking into account all the relevant circumstances.
Substance over form
Whether a document is privileged is a question of substance rather than form. Simply labelling documents as privileged and confidential does not automatically attract protection.
Waiver and loss of privilege
Where legal advice privilege or litigation privilege applies, the written or oral communications remain privileged unless privilege is waived or inadvertently lost.
Confidentiality is a fundamental component of privilege. Information that is not confidential will not attract privilege and therefore the loss of confidentiality will lead to a loss of privilege. Care should be taken when circulating privileged material, including limiting the number of people the information is circulated to and clearly marking the information as privileged and confidential.
For further information and advice please contact a member of the Employment Team.