Disclosure of original documents and legal advice privilege: a cautionary tale

The case of University of Dundee v Chakraborty [2022] EAT 150 serves as a valuable reminder to employers to be careful when preparing reports and documents relating to internal employment procedures (such as grievances or disciplinaries). You may think that first drafts will never need to see the light of day, but legal advice privilege will only relate to confidential communications between a legal adviser and a client for the purpose of giving or receiving legal advice, and original documents may therefore need to be disclosed in any subsequent tribunal.

Privilege

As a reminder, privilege entitles a party to withhold certain documents during the litigation disclosure process (or where there has been a data subject access request). There are two types of 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.
• Litigation privilege is wider than legal advice 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.

Facts

In this case the Employment Appeal Tribunal (EAT) considered whether a first draft of a grievance report could retrospectively be deemed to be privileged.

The Claimant, Mr Chakraborty, was employed by the University of Dundee. In November 2021 he raised a grievance against his line manager, alleging harassment, bullying, discrimination and racial abuse. An independent member of the academic staff, Professor Nic Daeid (ND), was appointed to investigate. She produced a grievance investigation report which she finalised on 28^th February 2022, by which time the Claimant had issued proceedings.

On 1^st March 2022 the University sent the investigation report to its external legal advisors who suggested some changes to the report. ND approved these on 23^rd June 2022 and made some further amendments of her own. The report was then sent to the Claimant and was also included as part of the tribunal bundle. It is worth noting that the amended report stated that it had been amended and reissued following independent legal advice.

The Claimant made an application for disclosure of the original un-amended report. Although the University conceded that the original version of the document was not legally privileged at the point it was created, it argued that it retrospectively acquired legal advice privilege once the amended version of it was lodged (on the basis that comparison of the two versions might enable conclusions to be drawn about the terms of the legal advice received). The Tribunal disagreed and allowed disclosure.

On appeal the EAT upheld the tribunal’s decision and found the following:

• It was right for the University to concede that legal advice privilege did not attach to the original report when it was produced. The test for legal advice privilege is that there has to be a communication between a client and a legal advisor for the purpose of giving or receiving legal advice. That was not what had happened here. ND had simply finalised the report (presumably for the purposes of sending it to the Claimant) and the University had chosen to send it to their external lawyers for advice.
• Privilege could not be attached retrospectively (even if an incidental consequence of its disclosure and comparison with the disclosed final version might allow inferences to be drawn about why the two versions were different). Any advice given by the solicitors plus any draft amended version would be privileged, but the original unamended document could not be.

Take away points

Documents drafted for a purpose other than for taking legal advice will not retrospectively acquire privileged status. On the other hand, documents drafted in order to receive legal advice on risk and content are more likely to be protected by legal advice privilege. Remember that the line between the two will sometimes be a fine one, and so ultimately you should always be mindful that draft documents may be subject to disclosure.

If you want to take legal advice on documentation that is going to be produced in internal procedures (reports/letters etc), that should be considered carefully in advance so that drafts are prepared in an appropriate way and always with a view to taking legal advice before they are finalised or sent anywhere other than to the lawyers. In this case although the report was subsequently sent to lawyers it was not prepared as a draft document with the intention of sending it to the lawyers for review and advice.

You must also remember that only communications with a lawyer (internal or external) attracts legal advice privilege. Communications between line management/HR will not attract that privilege.

This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.