Practice and Procedure; Case Management Order for Production of A Document; Legal Professional Privilege
The Claimant raised a grievance under the Appellant’s Dignity at Work and Study policy. The Appellant appointed an independent member of academic staff to investigate the grievance and report. She did so on 28 February 2022. Thereafter, the Appellant’s external legal advisors suggested that a number of changes be made to the report. The author of the report also made changes to it of her own before a final version of the report was lodged by the Appellant with the Employment Tribunal shortly before an evidential hearing on the Claimant’s complaints. It was clear from an annotation on the lodged version that it had been revised following legal advice. The Claimant made an application for a documents order for production of the original un-amended version of the report. The Appellant resisted that application on the basis that comparison of the original with the amended version would tend to show the nature of legal advice received such that the original version of the document was subject to legal advice privilege. The Employment Judge rejected that argument and made the order. On appeal, the Appellant contended that whilst the original version of the document was not privileged at the point when it was created, it retrospectively acquired legal advice and litigation privilege once the amended version of it was lodged because comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice received by the Appellant.
Held: (1) Whilst both the terms of any advice given by the solicitor about the original document and any amended version of the original document created for the purpose of the litigation would plainly be privileged, the original un-amended document would not; nor would it retrospectively become privileged even if an incidental consequence of its disclosure and comparison with the disclosed final version might be to allow inferences to be drawn about why the two versions were different.
(2) In any event, it was difficult to understand how it could be said that it would be possible to infer what legal advice was given simply from a comparison of the 28 February 2022 document with the version ultimately lodged by the Appellant. It was it is clear from the Chronology produced by the Appellant for this appeal that the author of the 28 February 2022 report had made amendments of her own to it. It was not explained how it would be possible to distinguish between changes to the report made following legal advice and changes made by its author which were unconnected to legal advice.
Judges:
The Honourable Lord Fairley
Citations:
[2022] EAT 150
Links:
Jurisdiction:
England and Wales
Employment
Updated: 05 October 2022; Ref: scu.681365