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.
Legal advice privilege; purpose of legal advice; continuum of communication. The Court of Appeal (Taylor LJ) held that the test is whether the communication was made confidentially for the purpose of legal advice, that purpose being construed broadly. Legal advice includes not only advice on the law but advice as to what should prudently and sensibly be done in the relevant legal context. In most solicitor-client relationships, especially protracted dealings, advice may be required on matters great or small at various stages, so there is a continuum of communication between solicitor and client, and information passed within it to keep both informed is privileged even where a particular communication contains no advice [IDS 10.96]-[10.97]. Three Rivers (No 6) adopted the formulation that privilege covers all communications relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice, provided they are directly related to the performance of the solicitor's professional duty. The point that a client seeking 'backing' for a course already decided on stays within privilege is University of Southampton v Kelly EAT 0574/05, not this case.
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.
1 WLR 947 - Arbitration; privilege; detailed the scope of privilege in legal proceedings.
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; 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].
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; litigation reasonably in prospect. The employer sought advice from employment consultants acting for its insurer on how to proceed with a disciplinary process after a workplace altercation. The EAT held that the employer was by then contemplating dismissal, and with it the possibility of tribunal proceedings, so the advice attracted litigation privilege and was not disclosable [IDS, Practice and Procedure, 10.117]. The EAT in Scotthorne also adopted the procedure, recognised in CPR r.31.19, of ordering disputed documents to be disclosed to the tribunal alone rather than to the opposing party. In Trentside Manor Care Ltd v Raphael [2022] EAT 37 the EAT, obiter, endorsed that procedure as a last resort and added guidance of its own: the starting point is a sworn statement from the party asserting privilege explaining its basis and the nature of the documents [10.127].
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.