The two strands of privilege, legal advice and litigation, applied to employment disputes. Three Rivers District Council v Bank of England (No 6); R (Jet2.com Ltd) v Civil Aviation Authority.
Foundational authority on confidential documents in ET proceedings. Confidentiality alone will not prevent a tribunal ordering disclosure. The tribunal has a duty to inspect disputed documents and apply a threefold approach: (1) it may have regard to confidentiality; (2) if inspection is necessary for the fair disposal of proceedings it must be ordered notwithstanding confidentiality; (3) it should consider whether special measures, anonymisation, redaction, or a private hearing, could enable justice to be done while protecting sensitive material. Guidelines apply in Scotland as well as England and Wales.
Litigation privilege; the dominant purpose test. Privilege requires that the dominant purpose of the document be the conduct of anticipated litigation. An internal accident report serving equally the purposes of accident prevention and of advising solicitors was not privileged.
Establishes the 'continuum of communication' principle for legal advice privilege. LAP covers all communications between solicitor and client 'relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice', even if individual communications do not themselves contain advice. In most retainer relationships involving protracted dealings there will be a continuum, information passed as part of that continuum aimed at keeping both informed will be privileged. Seeking 'backing' for a course of action already decided does not put the communication outside LAP.
Legal advice privilege; who is 'the adviser'. Privilege is strictly confined to professionally qualified legal advisers who are members of professional bodies and owe a duty to the court; correspondence with personnel or HR consultants is not privileged.
Litigation privilege; adversarial proceedings only. Litigation privilege is a creature of adversarial proceedings and does not extend to non-adversarial or inquisitorial processes, so an expert's report in care proceedings attracted no privilege.
The 'narrow client' rule for legal professional privilege in corporate contexts. Only those employees specifically authorised to seek and receive legal advice on behalf of the organisation constitute 'the client' for privilege purposes. Communications between solicitors and other employees, even where those employees hold relevant information, do not attract legal advice privilege. Significant in ET proceedings when respondents seek to withhold internal documents on privilege grounds.
LPP is absolute, it cannot be overridden by some supposedly greater public interest and can only be waived by the person entitled to it or overridden by statute. Legal advice privilege requires a 'relevant legal context': advice relating to rights, liabilities, obligations or remedies under private or public law. A lawyer acting as 'man of business' gives advice lacking this context. Establishes the 'continuum of communication' principle: all communications between solicitor and client relating to a transaction in which the solicitor is instructed for legal advice are privileged even if individual communications do not themselves contain advice. Privilege status is fixed at the time of creation and does not depend on subsequent use.
Litigation privilege; litigation in reasonable prospect. Litigation must be a real likelihood rather than a mere possibility: a general apprehension of future litigation, or a distinct possibility that sooner or later someone might sue, is not enough.
Absolute privilege; tribunal proceedings; solicitor's correspondence with ACAS. A solicitor's letter to an ACAS conciliation officer responding on a client's behalf to an employment tribunal claim attracts the absolute immunity from suit that protects statements made in the course of judicial proceedings, defeating a libel claim founded on it. The privilege extends to publication of the letter to the client and, if in the ordinary course of business, to the client's staff, as practically necessary to the solicitor's professional duty.
Privilege; confidentiality is the touchstone. An employee who drafts a personal document on the employer's IT system, subject to an IT policy vesting such material in the employer, has no reasonable expectation of privacy: the document was never confidential as against the employer, so no privilege could be asserted against it.
Internal corporate investigations and litigation privilege. Documents prepared during an internal investigation by lawyers and forensic accountants were protected by litigation privilege where criminal proceedings by the SFO were in reasonable contemplation. Documents prepared so as to avoid or settle anticipated proceedings are as much protected as documents prepared for the purpose of defending proceedings. Companies should be able to investigate whistleblower allegations prior to referral to a prosecutor without losing LPP for that investigative work. The court also expressed that it would have departed from Three Rivers (No.5)'s narrow client rule had it been open to do so.
Dominant purpose test applies to legal advice privilege (not only litigation privilege). A communication claiming LAP must have been created or sent for the dominant purpose of obtaining legal advice. For multi-addressee emails, if the dominant purpose is to obtain legal advice privilege applies even if the email also seeks commercial views, the mere presence of a lawyer in the recipient list is insufficient if the dominant purpose is commercial. Meeting notes and records are privileged if the dominant purpose of the discussion was to obtain legal advice; non-privileged content is severable and redactable. The Court signalled that the Supreme Court should revisit Three Rivers (No.5)'s narrow client rule to reflect modern corporate structures.
Double authority on privilege in employment proceedings. (1) Legal advice privilege: advice from an HR/employment law consultancy (team included some qualified solicitors but many non-qualified advisers) did not attract LAP, specific advice must be shown to have been provided by or under the supervision of a qualified lawyer. (2) Litigation privilege: taking advice on complex employment issues does not of itself trigger litigation privilege, wishing to minimise the risk of litigation is not the same as litigation being reasonably in prospect. (3) Procedure: an order requiring disclosure to representatives but not the party itself (to resolve privilege later) was an improper exercise of case management discretion as it compromised the very privilege being asserted.
Equal Pay; procedure; whether a second grievance report was privileged and therefore exempt from disclosure in tribunal proceedings.
Privilege in multi-party email communications; agent as 'means of communication'. Where a solicitor was instructed on behalf of one of multiple respondents, emails copied to the client attracted both LAP and litigation privilege; emails not copied to the client attracted only litigation privilege (subject to the dominant purpose test). A third party is an 'agent' of the client. And thus within the LAP chain, only if they acted as a mere means of communication. The EAT rejected an impermissible requirement that the principal must always be copied in; the correct question is whether the third party was in truth a conduit, assessed on the facts.
Accidental disclosure of privileged correspondence; iniquity exception. Legal advice emails between employer and solicitor accidentally copied to the claimant two days before dismissal were protected by LAP. The emails showed a solicitor encouraging a further senior review before a final dismissal decision, normal professional advice. And did not amount to fabricating a false reason or concealing the identity of the true decision-maker. The EAT confirmed the iniquity exception sets a high threshold: even an overwhelming likelihood of dismissal does not render the advice iniquitous. Practical guidance on what 'normal scope of professional engagement' looks like.
Three guiding principles of waiver of LPP: (1) waiving privilege in one document amounts to waiver of all documents concerned with the same 'issue or transaction', cherry-picking within a single transaction is impermissible; (2) a party cannot waive privilege selectively in a misleading or unfair way; (3) waiver in one document does not mean waiver of all privileged documents, waiver is transaction-specific, not general. A tribunal has discretion to refuse wider disclosure where a party voluntarily disclosed privilege for specific matters only, so long as limiting disclosure to those matters does not create a misleading picture.
Collateral waiver of LPP; cherry-picking within a transaction. An employer who voluntarily disclosed summaries of legal advice about the claimant's dismissal (waiving privilege) could not maintain privilege over a draft dismissal letter sent six days later containing comments from the same legal advisers on the same dismissal decision. All three documents were part of the same continuum of advice. Attempting to waive privilege in the note and email but maintain it in the draft letter was impermissible cherry-picking that would present a partial and misleading picture, given that the reason for dismissal was central to the claim.
Litigation privilege; disciplinary process; point at which litigation is reasonably in prospect. Where an employer obtained advice from employment consultants (acting for its insurer) on how to proceed with a disciplinary process following a workplace altercation, the employer was contemplating dismissal and with it the possibility of ET proceedings. The advice was protected by litigation privilege. Also recognised (obiter) as the appropriate procedure for disputed privilege claims: initial disclosure of disputed documents to the tribunal only (not the opposing party), modelled on CPR r31.19, with a sworn statement from the asserting party as the correct starting point.
Litigation privilege; iniquity exception. An email to HR consultants indicating a pre-determined intention to dismiss remained covered by litigation privilege and did not engage the iniquity exception: the employer neither sought nor received advice on how to act unlawfully, and frank instructions are exactly what a privileged communication protects.