Employment Appeal Tribunal Considers When Privilege Applies To Communications Via An Agent And To Documents Evidencing Legal Advice

• Published date: 06 April 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Employment Litigation/ Tribunals, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Mr Julian Copeman, Anna Pertoldi and Maura McIntosh

A recent Employment Appeal Tribunal decision contains an interesting discussion of some difficult issues relating to legal professional privilege: Moving Brands Ltd v Heinl [2023] EAT 34.

The decision relates to communications between a solicitor (instructed on behalf of an individual client) and a third party, some but not all of which were copied to the client. The decision distinguishes between the two categories, finding that where the client was copied in the communications were "effectively" between solicitor and client and so questions of agency did not need to be considered. Where the client was not copied, the communications could not be covered by legal advice privilege unless the third party was acting as the client's agent, as legal advice privilege is limited to solicitor-client communications (including via an agent).

The decision raises interesting questions as to what counts as a solicitor-client communication, including the test for agency for these purposes. Despite the decision, it should not be assumed that all communications to which a client is copied will be considered to be solicitor-client communications: no details are given in the present case as to why that conclusion was reached, but presumably the tribunal was satisfied, on the facts, that the substance of the solicitor's communication in each case was with the client rather than the third party.

Where the client was not copied, the tribunal concluded that legal advice privilege did not apply. The third party in question was not an agent of the client for these purposes as they did not act merely as a "means of communication".

The whole question of when communications via an agent will be covered by legal advice privilege is a difficult one, made more difficult by the different meanings of the word "agent" as discussed in the case law. As well as where an agent is merely a "means of communication" with no personal input into the communication, it seems clear that legal advice privilege applies to communications between a solicitor and the client's agent, or representative, where that individual is engaged to seek/obtain legal advice on the client's behalf. As stated in the classic Court of Appeal decision in Wheeler v Le Marchant (1881) 17 Ch D 675:

"If the representative is a person employed as an agent on the part of the client to obtain the legal advice of the solicitor, of course he stands in exactly the same position as the client as regards protection, and his...