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 communications with the solicitor stand in the same position as the communications of his principal with the solicitor. But these persons were not representatives in that sense."
This is the foundation for the (often criticised) principle that the "client", for the purposes of legal advice privilege, is limited to those tasked with seeking or obtaining legal advice on behalf of a corporate entity (as per the infamous Three Rivers No 5 decision, as interpreted in SFO v ENRC [2018] EWCA Civ 2006, considered here). In any event, there does not appear to have been any suggestion in the present case that the communications were with an agent or representative in that sense.
The present decision is also of interest in its discussion of the principle that a document can be privileged on the basis that it evidences, or reveals, legal advice sought or given. The decision suggests that the principle can apply where the legal advice in question is to be given in future, as well as where the document evidences advice already given.
Background
The claimants brought employment tribunal proceedings against their former employer (R1), its parent company (R2), its founding shareholders (R3 and R4), and two directors appointed to R1 following the claimants' dismissal (R5 and R6).
In the course of the employment tribunal hearing, R6 gave evidence that she had received advice in correspondence from the respondents’ solicitors, LS, in February 2021, at a time when she was not a client of LS. The claimants’ solicitors wrote to LS requesting disclosure of that correspondence on the basis that it was not privileged.
LS responded that, at the relevant time, they were instructed by R3 and had corresponded with R6 (and R5) as agents for R3, and therefore the correspondence was covered by legal advice privilege. The claimants applied for specific disclosure of the correspondence, and the employment tribunal granted the application in part.
The disputed correspondence comprised communications between LS and R5 and/or R6. R3 was copied in to some of these but not others. The employment tribunal treated the two categories differently:
- For the correspondence where R3 was not copied in, the tribunal held that it would have to be disclosed unless prepared after 17 February 2021 (the date on which it held litigation was in reasonable prospect) for the dominant purpose of obtaining advice or information in connection with litigation - in other words, where R3 (the client) was not copied in, only litigation privilege (and not legal advice privilege) could apply.
- Where R3 was copied in, in contrast, the tribunal held that the correspondence could also be withheld if prepared before 17 February 2021 for the dominant purpose of giving or seeking legal advice - in other words, where R3 (the client) was copied in, both legal advice privilege and litigation privilege could be relevant.
The respondents appealed to the Employment Appeal Tribunal (EAT), arguing (among other things) that the disclosure order covered privileged documents. The grounds of appeal included the following:
- That the tribunal had erred in law in considering that, for R5 and/or R6 to be acting as R3's agents for the purposes of legal advice privilege, R3 had to be copied into the email correspondence between LS and R3 ("the agency issue").
- That the tribunal had failed to exclude from the disclosure order documents that reproduced or otherwise revealed privileged communications between R3 and a solicitor ("the evidencing privileged communications issue").
Decision
The EAT (Bourne J) allowed the appeal in part.
The agency issue
It was common ground that legal advice privilege applies not only to direct communications between solicitor and client, but also to communications through intermediate agents. It was also common ground that, for a communication made via an agent to be privileged, it was not necessary for the client to be included in the communication, eg by being copied in. If the tribunal did find that there was such a requirement, the EAT said, that was an error of law. However, the EAT concluded that the tribunal had made no such finding, and that was not why the tribunal had rejected the claim to legal advice privilege over correspondence where R3 was not copied in.
The EAT found that the tribunal distinguished between the two categories of correspondence for a different reason: where R3 was copied in, the communications were "effectively between a solicitor and a client" so the agency issue did not arise; in contrast, where R3 was not copied, the communications were between a solicitor and a non-client and so, to make out a claim for privilege, the respondents had to show that R5 and R6 acted as mere agents for R3.
The claimants relied on a passage from Privilege by Colin Passmore (4th ed, 2019) which states that, for privilege to apply to a communication via an agent, the agent "must be no more than the means of communication" and "must have no personal input into the communication".
The respondents submitted that the test posited by Passmore of “no personal input” was too stringent: the question was whether the agent’s communication could clearly be traced back to the principal’s instruction. They referred to leading cases such as Price Waterhouse v BCCI Holdings (Luxembourg) SA [1992] BCLC 583 and Wheeler v le Marchant (1881) 17 Ch D 675, in which the court rejected claims that communications were privileged as being via an agent of the client. In both cases, the respondents submitted, the third parties had distinct roles which meant they were more than a medium of communication. They argued that the present case was closer to the “mere agent” end of the spectrum, "because R5 and R6 were at all times acting on R3’s instructions and were corresponding as his agents, even if they drafted the correspondence themselves".
The EAT agreed with the tribunal that the test for agency was whether R5 and R6 acted merely as a “means of communication” for R3. The tribunal had concluded that the test was not satisfied, on the facts, and the EAT considered that conclusion to be unsurprising. R5 and R6 occupied senior roles and the evidence showed that they were bringing independent judgment to bear on issues relating to the claimants and to LS's role as solicitors to R3. There was no apparent reason why R3 would choose to communicate with his solicitors via R5 or R6, and no apparent reason why R3 would not be copied in if he was, in reality, the principal in those communications.
The evidencing privileged communications issue
The respondents pointed out that the tribunal's disclosure order required the documents to be disclosed unless they were sent with the dominant purpose of either (i) giving/obtaining legal advice or (ii) obtaining advice or information in connection with litigation. There was no “carve out” for documents which did not meet that test but which would tend to disclose the nature and content of other privileged communications.
The claimants accepted that, in principle, documents which tend to reveal the content of a prior privileged communication may be privileged, but a debate arose as to whether (as the claimants submitted) the principle applied only where there was a specific prior communication which was privileged and whose contents were at risk of being revealed. The respondents submitted that the focus should be on whether the document tends to reveal the content of any privileged legal advice, rather than any specific communication, and so the principle would apply to a document which tended to reveal the content of privileged advice given later.
The EAT was not convinced that the authorities supported the claimants' argument that the principle was limited to prior privileged communications. It noted that some of the authorities reviewed in Re Edwardian Group Ltd [2017] EWHC 2805 (Ch) referred to revealing advice which was being sought or given, rather than advice which had been sought or given. The EAT noted that it might be rare for a document to reveal the content of a privileged communication which had not yet occurred, but it could not be ruled out.
Key contacts
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.