Privilege: A Reminder Of The Dangers Of Cherry Picking

The Employment Appeal Tribunal (EAT) has held that an employer waived privilege in redacted parts of a draft dismissal letter setting out its lawyer's comments, as a result of the employer's decision to rely on other privileged material relating to the claimant's dismissal: Kasongo v Humanscale UK Ltd [2019] UKEAT 0129_19_0909.

It is well established that, where a party to proceedings deploys privileged material to support its case, the "cherry picking" rule (also known as the principle of collateral waiver) means that the waiver may extend more broadly than intended. A court or tribunal may require the relevant party to disclose further privileged material, which relates to the same issue or transaction, to avoid giving an unfair or misleading impression based on the material disclosed. In the present case, the EAT rejected the employer's submission that the redacted comments represented a separate "transaction" from the legal advice given six days earlier and therefore were not caught by the cherry picking rule. They were all part of the same transaction, which was advising the employer on the claimant's dismissal.

While the decision is not surprising on its facts, it acts as a reminder of the dangers of relying on privileged material - even where it appears on its face to be helpful to a party's case - if there is related privileged material which is less helpful and may undermine the benefit obtained. Given the...