Hello everyone and thank you for joining us for another case of the week. Our previous case looked at a hairdresser unfairly dismissed after taking too many Mondays off after partying at the weekends! You can find out more here. This week looks at a case involving Legal Professional Privilege, what it means and how it could affect you.

Legal Professional Privilege (LPP), a right for clients to obtain legal advice and to openly discuss with their legal representative their topics and receive confidential advice in return, is crucial in setting the boundaries for what can and cannot be considered openly in court or tribunal hearings. This case, brought to the Employment Appeals Tribunal, looks at one of the times that a Tribunal considered privilege to not apply and demanded specific disclosure of documents. The Claimant’s solicitors, Mishcon de Reya LLP, have been at the centre of many a dispute about LPP, but taking some time beforehand to ensure your position could prevent disputes like this coming up in the first place.

The facts of this matter are quite complex as it involves multiple Claimants and Respondents, some of which being wholly owned subsidiary companies of other respondents and communications between different Respondents. The issue arose when two senior managers in the company made protected disclosures (a disclosure made by a worker which they reasonably believe shows serious wrongdoing and is protected under the Employment Rights Act 1996) about their employer company. Shortly after they were given notice of their dismissal. After holding a sham investigation and disciplinary procedure they were summarily dismissed on 8 June 2021, only one day before their notice period was due to expire. Claims were brought not only for unfair dismissal but also for victimisation under the Equality Act 2010 and the loss in the value of their shareholding.

As part of the Tribunal’s case management a Case Management Order (CMO) was filed for specific disclosure of correspondence between some of the parties involved. This case concerned an appeal of said CMO. On 20 September 2022, a Respondent company wrote to their solicitors, Lawrence Stephens, for advice believing that they were clients and that their communication would be privileged. While the Respondent company was not a client at the time it was claimed that they had been acting for another Respondent, so the communication was on an agent basis with information being passed between the two Respondents which would therefore qualify for LPP.

There were 3 types of LPP relevant to this case. The first is your garden variety advice privilege, where communication between client and adviser where the dominant purpose of the communication was legal advice. The second is any documents that are not relevant to the case, which is self-explanatory. The third and final of these comes up the most in disputes is litigation privilege, which protects communication when the ‘dominant purpose’ of those communications is the gathering of evidence in circumstances where litigation is in process or in reasonable prospect. The boundaries for when litigation is in reasonable prospect has been the subject of dispute but in this case the CMO originally ordered that any documents sent before the 17 February 2021, any documents sent where the dominant purpose did not relate to litigation, and documents that were stated to be irrelevant with explanations as to their contents.

An appeal was brought on 5 grounds, that:

  1. Communication was on an agent basis and was therefore protected under LPP,
  2. Necessary procedural steps in determining whether documents were relevant had not been taken,
  3. The contents of other documents demanded for disclosure would reveal or referred to the contents of privileged information,
  4. Either litigation or advice privilege could apply to documents sent after 17 February, and
  5. Disclosure of documents were ordered by category without reservation for the relevance of the documents in that category.

Only grounds 3 and 4 succeeded.

So while the Employment Tribunal had wrongly failed to make exception for documents which may reveal the contents of communications to which LPP applied, the other Respondents had acted as more than an agent in passing information between parties by having input into them directly.

Takeaway Point

For employees, the main thing to ensure is that you have properly instructed your solicitors before you start sending documents. Sending an important document that may negatively impact your case to someone who has not agreed to act for you may end up with said information being disclosed in a Tribunal later.

Employers, especially larger corporate entities, will need to be more cautious in how they communicate. Ensuring everyone involved has an understanding of these issues at the time in the event of litigation matters arising can help prevent privileged documents from being disclosed or subject to appeals processes in and of themselves. Ensuring that instruction has been obtained for subsidiaries can be important, as well as communication between different departments within a business, as this has been considered to be outside the protection of privilege in previous cases.

Seeking legal advice at the earliest opportunity and having an understanding of both what external and internal communication can be disclosed, will be invaluable in preventing embarrassing situations coming up in the future.