Fri 23 Jun 2023

Legal advice privilege did not apply to draft investigation report

Court of Session case is timely reminder of limited nature of legal advice privilege.

Very often investigation reports - either in grievance or disciplinary proceedings - are created in the early stages of a dispute or difficulty between an employer and an employee.  It will be produced by an investigating manager as part of an internal procedure with the hope that matters can be dealt with without the need of further litigation.  The question of legal advice privilege (that extends to all communications between a client and lawyer for the purposes of obtaining legal advice) or litigation privilege (that attaches to communications that come into existence for use in litigation) doesn't arise where no legal input is sought and, in such circumstances, earlier drafts would, potentially be recoverable in the context of Employment Tribunal proceedings. What is the position though if legal advice is sought in relation to earlier drafts? Are they recoverable or not?

In University of Dundee v Chakraborty, the claimant had raised a grievance alleging racial abuse, harassment, bully and discrimination.  In terms of their internal policy, the University investigated the complaint by setting up a Dignity at Work and Study ("DAWS") investigation panel.  The claimant lodged an application with the Employment Tribunal before the outcome of this internal procedure.  The outcome report was completed on 28th February but was subsequently amended by both the University's legal advisors (on more than one occasion) and the original author of the report.  At the point of Employment Tribunal proceedings it was the final version of the report that was lodged, but it was made clear that it had been amended. 

The claimant requested sight of the first draft of the report, but the University refused claiming it was covered by legal advice privilege.  The University argued that if the first draft was released then the legal advice they received would be able to be inferred from the differences between the first and final version of the report. The Employment Tribunal did not accept that argument and ordered production of the first version of the report. In particular, as the original author had also made amendments it was not possible to tell which amendments were attributable to her and which to the legal advice. The University appealed to the EAT, where they were unsuccessful, and then again to the Court of Session.

The Court of Session dismissed the appeal.  While it accepted that legal advice privilege would extend to material that would allow the reader to work out the advice that had been given, that was not possible in this case given amendments had also been made by the original author.  Furthermore, it should be possible to say of any material, at its creation, whether it is privileged or not.  Its status should not depend on the subsequent use that is made of the document.  When it was created, the first draft was not subject to either legal advice or litigation privilege - it had been produced in compliance with the Universities DAWS procedure.  Production of a subsequent version in legal proceedings did not retrospectively affect the status of the original report.

There is a limited amount that the University could have done to bring the original report within the ambit of legal privilege.  Had the original report been prepared by a lawyer it would still not necessarily be a communication made for the purposes of enabling the lawyer to give legal advice. One option that may be effective is to ensure that the first draft is labelled as such and has been created for the purpose of obtaining legal advice (but that would have to be true). It is also difficult to know at the outset whether an internal procedure will lead to litigation.  However, where it is possible that such a claim might arise, particularly where discrimination is involved and there is the potential for a high award of compensation to be made, employers may want to consider seeking advice at the outset. 

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