No privilege for original version of document simply because comparison to final version would reveal legal advice

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 original report would tend to betray the trend of the advice the university had received. The university also relied on a line of cases including Edwardian Group Limited v Singh [2017] EWHC 2805 (Ch) (considered here).

The employment judge rejected the claim to privilege. The university appealed.

Decision

The EAT (The Honourable Lord Fairley) dismissed the appeal.

Lord Fairley noted that there is no significant difference between the Scottish and English approach to legal professional privilege, and that the burden of establishing privilege rests upon the party claiming it.

He also noted that legal advice privilege is not confined to the original communications between clients and their lawyers but extends also to other later documents which “evidence” the subject matter of such communications, or which reproduce, summarise or otherwise paraphrase the advice sought or received.

As regards Lyell, Lord Fairley pointed out that in that case the documents in question (extracts from a public record and photographs taken by the solicitor) had been gathered by the solicitor on behalf of his client specifically for the purposes of defending litigation. The documents were created with the dominant purpose of being used in anticipated litigation, and were privileged at the point of creation. Lyell did not establish that privilege attached to, for example, the other documents contained within the public record which the solicitor chose not to extract.

Nor was Lyell authority for the proposition that an original document, which was not privileged at the time of creation, could retrospectively become privileged by virtue of an amended version of it being created and disclosed.

Re Edwardian, and the cases referred to in that decision, all related to situations where legal advice had been given and another document was then created from which the tenor of that prior advice could be inferred. The issue in those cases was whether privilege attached to the later document. There was nothing in any of the cases to support the proposition that a non-privileged original version of a document could acquire privileged status retrospectively, as the university argued in this case.

That was sufficient to dispose of the appeal, but Lord Fairley also noted that, on the facts, it was not easy to see how the content of legal advice could be inferred from a comparison of the original report with the final version, since it was accepted that Prof Nic Daeid had also made her own amendments to the report before finalising it.

Note: This decision was upheld on appeal to the Inner House of the Scottish Court of Session: [2023] ScotCS CSIH 22.