No retrospective privilege for the original version of a report that was subsequently revised following legal advice

In University of Dundee v Chakraborty [2022] EAT 150, the EAT considered the employer’s right to claim privilege over an earlier version of a grievance report that had subsequently been revised following the receipt of legal advice.

The Claimant’s grievance had been investigated, and a report prepared. External solicitors reviewed the report and suggested amendments, and the author made further changes of her own.

The revised version of the report (and not the original) was disclosed within Tribunal proceedings, which had commenced before the grievance investigation had been completed. The Claimant, realising from an annotation that the report had been amended following legal advice, applied successfully for disclosure of the original version under Rule 31. The employer appealed.

On appeal, the employer conceded that the original version of the report was not privileged at the point it was created, but contended that it had retrospectively acquired legal advice and litigation privilege, since comparison of the versions could reveal the nature of the legal advice received through “jigsaw identification”.

The EAT agreed that the university’s concession that the original report had not been privileged at the point of creation was correct. It was not a communication between a client and legal advisor for the purposes of the giving or receiving of legal advice, and was not a document created in contemplation of litigation: it was an investigative response to a grievance.

The EAT then dismissed the employer’s appeal on two grounds.

(1)    Although the terms of any advice given would plainly be privileged, the original document would not, and did not retrospectively acquire privilege even if an incidental consequence of its disclosure, and comparison with the final amended version, would enable inferences to be drawn about the legal advice given.

(2)    On the facts of this case, it was difficult to see how the nature of the legal advice could be inferred from a comparison in any event as it had not been explained how the changes made following legal advice could be distinguished from those separately made by the author herself.

Legal advisors should be aware of this decision when advising on amendments to internal documents. It is a reminder that the duty of disclosure may require disclosure of original drafts of internal reports in Tribunal proceedings, where these are relevant to the issues in dispute. Retrospective privilege will not protect it.

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Authors

Alice Meredith

Call 2013

Related areas

Employment

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