fadairo_suitEAT2014
EAT Practice and Procedure : Admissibility of Evidence
The Employment Tribunal made a case management decision preventing the Claimant from relying on an email which was found by the Tribunal to be confidential and the subject of legal advice privilege. The Claimant appealed against that decision on various grounds. His main submissions were that (1) the email had been disclosed to him before litigation began deliberately and not inadvertently; (2) the email was no longer confidential as between the Respondent and him even if it remained confidential as against others; and (3) the Employment Tribunal had been wrong to direct itself that it did not have a discretion to permit the use of the email in the proceedings, since it should have conducted a balancing exercise weighing competing interests.
Held: dismissing the appeal:
(1) It had been common ground before the Employment Tribunal that the disclosure of the email had been inadvertent. The Claimant had not challenged evidence to that effect which was before the Tribunal nor had he sought to adduce any other evidence. The Tribunal was entitled to make that finding on the basis of the material before it and there was no perversity challenge in any event. It was not open to the Claimant now to submit that the disclosure had in fact been deliberate and not inadvertent.
(2) The email was clearly still confidential as against the Claimant.
(3) Although there was a discretion in certain circumstances to refuse a case management order of this type (by way of analogy with the equitable jurisdiction of the High Court to restrain a breach of confidence where a document was the subject of legal advice privilege), it was not broad enough to encompass a general weighing up of competing interests, including balancing the interest in confidentiality and the interest in establishing the truth in litigation. The Employment Tribunal was right in reaching its decision to that effect.
Singh J
[2014] UKEAT 0282 – 13 – 1701
Bailii
England and Wales
Employment
Updated: 02 November 2021; Ref: scu.520019