We’ve all been there. We get an email from a colleague or peer with the 7th revision of a document, chock full of tracked change. Inner rage develops at the cheek of our adversary suggesting your draft be changed at all. How dare they!! You know better than them. A back and forth takes place debating whether to use the word “consequence” or “cause” in a crucial clause, because obviously which of the two is chosen is of vital, earth changing importance. This battle of the wills usually comes to an end when the patience on one side runs out completely and they just agree to whatever the most recent draft says. Matters are agreed and finalised and everyone moves on to the next drafting debate. AT least I hope we’ve all been there and it’s not just lawyers who behave like this…
Anyway, usually there is no real consequence (definitely the right word here- cause would not do) to the process of different versions of a document being negotiated upon. However, a recent case decided by the Court of Session shows that this will not always be so. In University of Dundee v Chakraborty [2023] ScotCS CSIH 22, the court had to decide whether legal privilege attached to an earlier draft of a grievance outcome report which had passed between the University and its legal advisers and which had been amended by those advisers.
What is legal privilege?
Legal advice privilege applies to confidential communications which both:
- Pass between a client and the client’s lawyer; and
- Have come into existence for the dominant purpose of giving or receiving legal advice about what should be done in the relevant legal context.
The purpose of legal advice privilege, which applies whether or not litigation is pending or contemplated, is to enable a client to place unrestricted confidence in their lawyer.
The question for the court in this case was whether the seeking of advice on an internal grievance outcome report would be covered by legal privilege. In particular, the court had to decide whether the second element of the test set out above was met.
Why did the dispute come about?
Mr Chakraborty had raised a grievance. The manager appointed to oversee the grievance concluded their investigation and then sought advice from the University’s advisers on the terms of his draft report. The adviser passed this report to the University’s lawyers who suggested some changes. These proposed changes were passed on to the investigator, who accepted them, along with some further changes of his own he made to the report. The grievance was ultimately not upheld.
The subject matter of the grievance had led to Mr Chakraborty to raise a claim before the Employment Tribunal, alleging racial discrimination and harassment. When that matter got to the hearing stage, the investigating manager’s report was included in the document bundle. The front page of the report included a footnote stating “amended and reissued on 23.06.2022 following independent legal advice”. Upon noting this Mr Chakraborty and his legal team made an application to see the original version of the report. The University objected to this on the basis Mr Chakraborty would be able to compare the two versions of the report and be able to discover what specific legal advice the University had received on the original draft. The University argued that this ability to carry out a comparison meant the original report was covered by legal privilege and, as such, they should not be required to produce it to Mr Chakraborty.
The Employment Tribunal and Employment Appeal Tribunal did not accept the argument advanced by the University and indicated that the original version of the report should be produced. The University appealed to the Court of Session where they found that their argument was just as unsuccessful as it had been at the lower tribunals and the report would not be protected by legal privilege.
The court’s decision
The issue in this case was whether the University’s own act, of issuing the final version of the report containing a footnote revealing that it had been amended following “independent legal advice”, made the original report confidential. If that was correct, Mr Chakraborty would be prevented from seeing what the investigator had said in the original version and would prevent Mr Chakrobarty’s solicitor from cross-examining her on the validity of her ultimate findings.
The court were clear that whether legal privilege attached to a document should be clear at the point it was created; not by how it is used subsequently. The court held that:
- Privilege was probably abandoned by the University when the advice, which was obtained by them, was revealed to the investigator (who had been carrying out what was supposed to be an impartial investigation).
- Privilege was certainly lost once it became known, as the footnote in the report stated, that the original report had been altered as a result of the advice.
Lessons to be learned
An obvious lesson would be that employers should not put footnotes on the front page of documents setting out the terms of the report have been amended upon legal advice.
Perhaps more properly, the point to take from the case is that employers ought to be cautious about reliance on legal privilege where it relates to advice given and amendments made to internal documents, including grievance reports, disciplinary outcome letters or investigation reports. Could it ever be said such a piece of correspondence “have come into existence for the dominant purpose of giving or receiving legal advice”? Surely they have come into existence to allow the employer to progress through or conclude an internal process.
As such, if advice is to be sought, it would put an employer in a safer position to ask for any advice to be set out separately and for any appointed manager to then consider that advice and come to their own final conclusion as to how their own view should be set down in writing.
It is also worthwhile bearing in mind that previous case law strongly suggests that legal privilege does not protect communication which passes between management and HR. In the case of Trentside Manor Care Ltd v Raphael [2022] EAT 37, the Employment Appeal Tribunal were unwilling to exclude documents from a hearing bundle which the employer argues attracted legal privilege because advice had been taken on those documents preparation from Trentside’s external HR consultants. While litigation privilege could attract to such documents, that was a different test. That would require:
- A communication between the lawyer (acting in a professional capacity) and the client, or between either of them and a third party (or be a document created by or on behalf of the client or the client’s lawyer).
- Be made for the dominant purpose of litigation.
- Relate to litigation which is pending, reasonably contemplated or existing.
- (In most and arguably all cases) be confidential.
So while there may be situations open to an employer where it may not be required to disclose documents or earlier drafts of documents, employers (and HR) ought to be careful in considering what documents are prepared in the course of any internal procedure and whether any such privilege could prevent the disclosure of those documents.
This can be a tricky issue. Thankfully, I managed to get to the end with only 53 proposed track changes being suggested by the team to my first draft. I am sure no-one wants to force me to disclose that though!!
If you need any employment law advice, please get in touch with Blackadders’ Employment Law team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
