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.
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.
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.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Privilege; multi-party emails; agent as means of communication. The EAT (Bourne J) largely upheld a disclosure order over emails between the third respondent's solicitor and two other respondents who were not the solicitor's clients. Communications through an agent attract legal advice privilege only where the agent is no more than a means of communication; a third party bringing independent judgment to bear is not a mere conduit [32], [44]-[50]. Whether the principal was copied in is not a legal requirement, though it may be why the agency argument arises at all [48]. The burden lies on the party asserting privilege; the tribunal was not bound to call for more evidence [56]. Emails to which the client was copied were treated as capable of privilege, subject to the dominant purpose test and further evidence [23]. The appeal succeeded only on two omissions in the order: no carve-out for documents revealing the content of privileged advice, and no provision for legal advice privilege over the later emails [66]-[76], [93].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.