PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Admissibility of evidence
The Respondent before the Tribunal had disclosed a draft dismissal letter prepared by its solicitors from which it had redacted the solicitor’s comments and notes. It was common ground that the draft letter was not legally privileged, but that the redacted parts were protected by legal advice privilege within the umbrella definition of legal professional privilege. The issue was whether the Respondent had waived privilege in the redacted parts of that letter by having disclosed two earlier documents. The issue was whether the Tribunal had wrongly found that one of the earlier documents was not protected by legal advice privilege and if it had erred in not dealing with the other document.
Held: The Tribunal had erred in failing to address or rule on the document it had not mentioned, and it was perverse to find the other document was not legally privileged when it was made for the purpose of obtaining or giving legal advice. The parties agreed that it was for this Tribunal to decide whether the Respondent was permitted to cherry pick and if it could maintain, or had waived, privilege in relation to the redacted parts of the draft dismissal letter by choosing to disclose other material that they were entitled to withhold as confidential.
It was further held that all three documents were part of the same transaction of providing legal advice about the dismissal of the Claimant. Given the nature and purpose of the disclosure, fairness required that the redacted part of the letter concerning the reason for the Claimant’s dismissal also be disclosed, since it would be unfair to allow the Respondent who had waived privilege in relation to the other two documents not to reveal those redacted parts of the dismissal letter which related to the reason for dismissal. It would be impermissible cherry picking as the cliche goes. The redactions that did not concern the reason for dismissal, such as references to holiday pay entitlement and post-employment restrictive covenants could remain redacted, if the Respondent so desired. But the Respondent consented to removing those redactions for consistency and transparency and would excise the redactions for the trial bundle.
Judges:
Stacey HHJ
Citations:
[2019] UKEAT 0129 – 19 – 0909
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 September 2022; Ref: scu.642765