What is privilege?
Privilege is a well-known right entitling a person who is involved in legal proceedings, in certain circumstances, to withhold documents from inspection by their opponent during the disclosure process. The privilege in the document belongs to, and therefore can only be lost (or waived) by, the client – for example, if the document ceases to be confidential.
This is important because, in legal proceedings, the parties have to disclose documents relevant to the dispute to their opponents. In most proceedings, the documents to be disclosed will include those the client relies upon as supporting their case, along with any relevant documents which adversely affect it. Privilege protects certain otherwise relevant documents from being seen by an opponent as part of this process.
The main types of privilege are:
- Legal advice privilege: This protects any confidential communications, and evidence of those communications, between a lawyer and their clients for the purposes of giving or receiving legal advice. It also protects communications sent by lawyers to their clients as an information update, so they can give (or their clients can ask for) legal advice when necessary. It does not protect documents which are created internally by the client, unless those documents have been created for the purposes of giving or receiving legal advice.
- Litigation privilege: This applies where litigation is reasonably in prospect, i.e. it is contemplated but has not necessarily started. It protects all confidential documents created for the dominant purpose of conducting or aiding the conduct of the litigation. Litigation privilege is broader in scope than legal advice privilege. It will extend to protect confidential communications with third parties by both a client and its lawyers, e.g. witnesses and experts. It also covers any adversarial proceedings, not just litigation.
- Without Prejudice Privilege: This applies to discussions and documents created while genuinely negotiating in an attempt to settle a dispute. By way of example, without prejudice offers to settle a claim or admissions made during without prejudice negotiations aimed at settling a dispute are protected from disclosure during any continuing or subsequent legal proceedings.
In Kasongo v. Humanscale UK Ltd, the EAT has clarified that legal professional privilege cannot be “cherry picked”. Even with a break in time between communications, if the advice relates to the same matter or legal question, privilege cannot be selectively waived for some communications related to it, but not others.
In Kasongo, the claimant was dismissed two weeks after informing her manager that she was pregnant. The grounds for her dismissal were her poor performance, attendance and lateness. The claimant alleged, among other points, that the real reason for her dismissal was her pregnancy. During the disclosure process, the respondent disclosed:
- a note, prepared by the respondent’s HR manager, of telephone advice which she had received from their external solicitor in relation to the dismissal;
- an email of the same date from the HR manager to the respondent’s in-house counsel, summarising the advice, and explaining that they wished to terminate the claimant’s employment “based on behaviour (issues with tardiness, attendance and quality of work)”; and
- a draft dismissal letter prepared by the respondent’s external solicitor, with comments from the solicitor which were redacted.
Despite the redaction, the claimant was able to read the redacted comments from the solicitor in the dismissal letter. The comments appeared to suggest that the respondent was trying to come up with excuses to avoid a discrimination claim. The claimant sought to rely on these comments as evidence of discriminatory behaviour. However, the respondent contended that the letter was covered by legal advice privilege and therefore could not be relied upon.
As noted above, legal advice privilege is one of three types of privilege, and is intended to enable clients to place unrestricted confidence in their lawyer. The courts confirmed in Three Rivers DC v. Bank of England (No 5) that legal advice privilege can also extend to materials which “evidence” the substance of confidential communications passing between clients and lawyers for the purpose of giving or receiving legal advice, as well as any information prepared to be communicated but never actually is. As a result, the judge at first instance accepted the respondent’s arguments that the draft dismissal letter referred to above was covered by legal advice privilege.
The respondent also submitted that the draft dismissal letter was not part of the same “transaction” as the note and the email, and that therefore they were not “cherry picking” their waiver of privilege by having disclosed those documents, while still seeking to rely on privilege to redact the draft dismissal letter. Ultimately, the respondent contended that the draft dismissal letter did not fall within a collateral waiver, whereby a party elects to waive privilege in some documents, and is therefore obliged to disclose documents that form part of the same “transaction”. The judge did not comment on the attendance note, but found that the email to the in-house counsel was not privileged in any case, because the advice did not come from a legal adviser.
On appeal, the EAT stated that the tribunal had been wrong to conclude that the email (and note) were not subject to legal advice privilege. Even though the communication had not been between a lawyer and client, the advice provided by the lawyers to the HR manager did not lose privilege just because it was communicated internally in the same organisation (even though it had been paraphrased). Further, the EAT found that the letter was clearly part of the same “transaction” as the note and email, given that it related to advice about the claimant’s dismissal. The six-day gap between the advice and the draft dismissal letter did not affect the continuum of the advice being provided to the legal question of whether the claimant could be dismissed. As a result, the decision to invoke privilege with the letter was found to be selective, and was done to obtain a forensic advantage. The EAT stated that the “cherry picking” risked unfairness and/or misunderstanding arising from the fact that the court would only have a partial view of the privileged material. Therefore, the respondent’s position was rejected. The claimant was therefore allowed to rely upon the full letter in its complete unredacted form, given the respondent had chosen to waive privilege in respect of the note and email.
Points to note going forwards
This decision is a stark reminder that employers should take care not to inadvertently waive privilege on communications with lawyers, if they relate to advice on a matter, without considering if they would also want to waive privilege in respect of all other communications related to that specific matter (regardless of the time that may have passed between the giving of each piece of advice). When considering whether matters are related in this context, the question is whether the advice given ultimately relates to the same legal question.
Some further takeaway points for employers include:
- exercise restraint in creating documents by communicating orally. It may be more efficient and effective to hold a meeting to discuss any relevant issues face to face, rather than have a chain of emails which may later have to be disclosed in court;
- unless communicating with lawyers in circumstances where privilege can be guaranteed, do not provide opinions about matters such as whether something is good or bad, strong or weak. Instead, only record facts accurately and concisely;
- for disclosure purposes, the term “documents” captures letters, emails, diaries, handwritten notes, CDs, electronic files, photographs, text messages and voicemail recordings, as well as records obtained from hard drives, mail servers and mobile phones;
- ensure that, when reporting on legal advice, any documents recording that advice are separated from any other commercial issues (preferably in a different note); and
- where possible, store privileged documents separately from non-privileged documents.