The Scottish Court of Session has ruled that the original version of an investigation report did not retrospectively become privileged after it was amended by the employer’s legal advisors. The Court has ordered that the document in question - a draft grievance investigation report - be disclosed to an employee notwithstanding the fact that the nature of the legal advice given would then be fairly obvious. The case serves as a useful reminder to employers of the need to be careful when dealing with drafts of internal disciplinary and grievance investigation reports. We’ll consider that.
At the centre of the case is the rule on legal advice privilege, designed to give clients comfort knowing that dealings with their lawyers will be treated in confidence. However, reliance on the rule depends on three criteria being satisfied, namely: (1) that the communication or document is confidential; (2) the communication is between a client and their lawyer; and (3) the dominant purpose of the document when it was created was to give or obtain legal advice.
This is the case of Chakraborty v University of Dundee. Mr Prasun Chakraborty raised a grievance which the University duly investigated. When the independent investigator submitted their draft report to the university it was reviewed and edited by the university’s lawyers before being handed over to the employment tribunal as part of the disclosure process. The edited version contained a footnote making clear that the report had been amended following “independent legal advice”. Chakraborty then requested disclosure of the investigator’s original draft. Lawyers acting for the university refused to comply with the request, telling the tribunal that, if the original document was disclosed, by comparing the two versions it would be obvious what legal advice the university had been given. They said that, because of this, the original unedited version of the report was, retrospectively, confidential and therefore protected by legal privilege.
As litigator Bruce Craig explains in his Out-Law article on this, the Court rejected the university’s argument ruling that privilege cannot be attached to a document retrospectively. So, if a document is not privileged at the time it is created, it will not later become privileged due to a later change in circumstances. As Craig points out, there had previously been some doubt the application of that rule in Scotland but, helpfully, this case clears it up and we have confirmation that we are broadly aligned north and south of the border.
So, what can we take from this case? What are the lesson for employers? Earlier I caught up with Stuart Neilson who joined me by video-link from Glasgow:
Stuart Neilson: “I think the key issue - and this comes back to this whole point of to what extent do you get protection under the doctrine of legal privilege when you're carrying out an investigation and you're preparing an investigation report - and I think the key point is always for employers to bear in mind that, generally, if it's an investigation into something like bullying and harassment taking place in the workplace, a factual investigation into that, it's unlikely that's going to attract legal privilege unless it was being done purely for the purpose of getting legal advice which most cases it's not, it's being done for the purpose of trying to find out what happened. So, I think that's the kind of key point to bear in mind, then there are a lot of different nuances in the case as well which will no doubt come on to.”
Joe Glavina: “In her Out-Law article Sarah Munro says how it’s common to have multiple drafts of grievance or disciplinary reports, and it’s common to seek legal advice before finalising the report. She says it’s therefore important for employers to seek advice at an early stage. Is that right?”
Stuart Neilson: “It absolutely is right. It’s important because the point that the case made was that you have to determine whether or not something is legally provided at the point in time when it is created. So, at the point in time, when it is created, what is the purpose of the creation of that report? If it has been created with a view to getting legal advice then that legal advice will be privileged, but if it's not, if it has been created for the purpose of simply investigating and trying to determine the facts and circumstances of what happened and then, at a later date, you try and get legal advice, then that report is not going to be legally privileged.”
Joe Glavina: “Do you think there's a point here for HR, Stuart, in terms of who you share information with internally when you’ve asked for legal advice and it comes through?”
Stuart Neilson: “Yes, I think there’s a general point there. One of the other issues that came up in the case is this whole issue of waiver of legal advice and it is possible to waive the legal advice and give up your privilege in relation to it. So it is important, I think, that within an organisation where legal advice has been provided into that organisation, that that is provided to a small and discreet group of people and that it shouldn't really be shared generally around the organisation if that can be prevented, and if you do need to share it around the organisation a bit more, it's better to go back to the lawyers and get them to do that directly with specific individuals.”
Joe Glavina: “Another point that's raised in the HR press is whether it’s safer all round to for clients to get their legal advice over the phone rather than in writing. What do you think about that?”
Stuart Neilson: “I'm not sure I’d say you would have to go that far. Whether it's phone or email, I think the more important point is that you keep it to a small, tight, group of individuals who are seeking that advice, that it's very clear if you are giving advice, for us as lawyers if we're giving advice we should be documenting that as legally privileged, and if the client is reaching out to get advice they should probably be documenting it as for the purpose of obtaining legal advice. Certainly, if you're getting advice over the phone then it does reduce the risk of documents flying around the organisation that you might inadvertently be disclosing to the wrong people, but I think it's more about just having a bit more focus around who's getting the advice, what is the purpose of obtaining that advice for.”
Joe Glavina: “Anything else, Stuart? A message for clients?”
Stuart Neilson: “Yes, I think, for me, the overriding thing, and the most important thing for clients to bear in mind, is that legal privilege is something which will attach to a document at the point in time when it's created, provided that when it's created the purpose of creating it was for getting legal advice. One of the things we see quite often is clients will copy us in as lawyers to communications are sending internally in the mistaken belief that that will somehow give it some kind of special protection. It does not. The communication must be created for the purpose of getting that legal advice, created for the purpose of sending to us as lawyers to get advice. So, it is quite a narrow scope of protection and it's just important for clients to be aware of how narrow that scope of protection is.”
If you would like further analysis of this case and how the Court arrived at its decision, then it’s worth reading the Out-Law article on this by Bruce Craig and Sarah Munro. That’s ‘Privilege case helps clarify limit of legal confidentiality in Scots law’ and we’ve put a link to it in the transcript of this programme for you.
LINKS
- Link to Out-Law article: ‘Privilege case helps clarify limit of legal confidentiality in Scots law’
