No Privilege For Original Version Of Document Simply Because Comparison To Final Version Would Reveal Legal Advice

• Published date: 07 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

The Employment Appeal Tribunal has ordered a party to disclose the original version of a report following an internal investigation, where the report had subsequently been amended in accordance with legal advice and the final version disclosed: University of Dundee v Chakraborty [2022] EAT 150.

The Tribunal rejected the submission that a non-privileged document could later acquire privileged status simply because it had become the subject of legal advice and a comparison with the final version would allow the content of the advice to be inferred. The decision shows that there are limits to the well-established principle that a document will be privileged to the extent that it betrays the content or the trend of legal advice.

Although this was a Scottish case, the Tribunal noted that there is no difference between English and Scottish law for these purposes.

Background

The claimant was a post-doctoral research assistant at the defendant university. He raised a grievance under the university's Dignity at Work and Study policy, and the university appointed an independent member of academic staff (Professor Nic Daeid) to investigate the grievance.

The claimant brought employment tribunal proceedings against the university on 21 December 2021. Prof Nic Daeid produced her report on 28 February 2022. Subsequently, the university's external solicitors proposed a number of amendments to the report, and Prof Nic Daeid also made some further amendments of her own. The revised version of the report was sent to the claimant and was included in the joint bundle for the employment tribunal proceedings.

The claimant applied for an order requiring the university to produce the original version of the report. The university resisted the application on grounds of legal advice privilege. It accepted that the original report was not privileged at the time it was prepared, but argued that it became privileged retrospectively because, if it were to be disclosed and compared to the final version, it would be possible to infer what legal advice the solicitors had given in suggesting amendments to the report.

The university sought to rely on Lyell v Kennedy (No. 3) (1884) 27 Ch D 1 which, as analysed in Ventouris v Mountain [1991] 1 WLR 607, established that privilege applies where a selection of documents copied or assembled by a solicitor betrays the trend of the solicitor's advice to the client. The university argued that the same principle applied here because disclosing the...