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University of Dundee v Chakraborty: can a non-privileged document retrospectively acquire privileged status?

Overview

In the recent decision of University of Dundee v Chakraborty [2022] EAT 150, the Employment Appeal Tribunal (EAT) considered whether a report, which had at an earlier stage of proceedings been non-privileged, could acquire privileged status following the incorporation of legal advice by solicitors. The case provides a helpful restatement of the rules relating to legal advice and litigation privilege.

Factual background

The dispute in this case concerned allegations of harassment, bullying, discrimination, and racial abuse towards Mr Chakraborty (the "Claimant") by his line manager. The Claimant had been employed as a Post-Doctoral Research Assistant by the University of Dundee (the "Appellant") since 2011. The Claimant had raised a grievance with the Appellant, who launched an investigation into the allegations pursuant to its "Dignity at Work and Study" policy. The Claimant presented his claim form to the Employment Tribunal in December 2021, and the Appellant's independent investigator, Professor Nic Daeid, presented her findings in a preliminary report dated February 2022. The original version of the report was not released by the Appellant to the Claimant.

External solicitors were then instructed by the Appellant to review the report, and they suggested proposed amendments to it. Professor Daeid also made further (unconnected) amendments to the report. A revised version of the report was included by the Appellant in the Joint Bundle for the Employment Tribunal in advance of an evidential hearing in July 2022. The revised report included the following annotation on its cover:

Note: This report was amended and reissued on 23.06.2022 following independent legal advice.

On the first day of the evidential hearing, the Claimant made an oral application requiring the Appellant to produce the original version of the report. The Appellant resisted this application on the grounds that:

  1. the original version of the report was protected by legal advice privilege; and

  2. the production of the original report would enable the Claimant to compare each version and draw inferences about the legal advice that had been given to the Appellant.

The Employment Tribunal rejected these submissions and permitted disclosure under Rule 31 of the ET Rules. The Appellant appealed this decision to the EAT.

The Appellant's submissions

The Appellant accepted that neither legal advice privilege nor litigation privilege attached to the original version of the report at the time it was prepared by Professor Daeid in February 2022. However, the Appellant submitted that privilege did attach to the original report retrospectively as a result of the advice given by the solicitors in relation to its contents. The Appellant reiterated its concern that inferences could be drawn and likened this to a form of "jigsaw identification" of the legal advice received.

The Appellant cited the cases of Lyell v Kennedy (No. 3) [1884] and Ventouris v Mountain [1991] in support of their submissions. Particular emphasis was placed upon the observation of Bingham LJ in Ventouris that "where the selection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged".

Legal advice privilege

Legal advice privilege applies to confidential communications which:

  • pass between a client and a client's lawyer; and

  • which have come into existence for the dominant purpose of giving or receiving legal advice about what should be done in the relevant legal context.

Litigation privilege

Litigation privilege applies to confidential communications which:

  • pass between a client and a client's lawyer, or between either of them and a third party; and

  • which have come into existence for the dominant purpose of litigation which is pending, reasonably contemplated or existing.
The EAT's decision

The EAT refused the appeal and thereby upheld the Employment Tribunal's order for disclosure of the original version of the report. Whilst the terms of any advice given by the solicitor and any amended version of the report "created for the purpose of litigation" would be privileged, this did not extend to the original report. The original report was not privileged; nor did privilege attach retrospectively to this document, even where its disclosure and comparison with the final version could enable inferences to be drawn with respect to the legal advice provided by the Appellant's solicitors. In reaching this conclusion, Lord Fairley explained that the original report was not covered by legal advice privilege because it had not at that stage been reviewed by the Appellant's solicitors. It was therefore not a document which evidenced the subject matter of any legal advice received. Litigation privilege equally did not attach, as the original report had not been created in contemplation of litigation but was instead an investigative response made in accordance with the Appellant's "Dignity at Work and Study" policy. Instead, it had come into existence for the dominant purpose of evaluating the merits of the Claimant's allegations in accordance with this policy.

Commentary

The circumstances in which privilege will attach to documents are fact specific. However, Chakraborty provides a welcome reminder to parties that privilege is limited in scope and cannot be relied upon as a silver bullet to resist the disclosure of specific documents. It should not be assumed that privilege will retrospectively attach to an earlier iteration of a report where a later version is then produced: (i) in connection with the receipt of legal advice; or (ii) in respect of existing or contemplated litigation: the earlier document does not necessarily enjoy the same privilege.

Following Chakraborty, employers would be well-advised to seek legal advice from the outset of any investigation process, and in any event prior to the commencement of any grievance or disciplinary process which follows. Solicitors should also ensure that their clients are made aware of the rules relating to legal professional privilege as soon as legal proceedings commence.

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