Privilege case helps clarify limit of legal confidentiality in Scots law

Earlier this month, the Inner House of the Court of Session rejected the University of Dundee’s attempt to withhold an original draft of an internal report from an employment tribunal. The university had already handed over a later version of the report that had been edited by its legal team. It argued that the original document, if disclosed as well, could be compared with the edited version to discern the legal advice that the university had received – breaching its right to legal advice privilege.

Litigation expert Bruce Craig of Pinsent Masons said: “The court affirmed the principle that privilege cannot be attached to a document retrospectively – 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. It also emphasises the need for caution when seeking to revise a non-privileged report in light of later legal advice.”

Craig said that the lack of recent Scottish cases on privilege had previously caused uncertainty over this issue. “This decision provides a welcome clarification of the law in this area and confirmation that we are broadly aligned north and south of the border,” he added.

The decision comes after Prasun Chakraborty, a research assistant at the University of Dundee, raised an official grievance with his employer over alleged racism, bullying, and harassment in November 2021. That month, the university appointed an independent investigator to examine Chakraborty’s complaints. In December, before the internal investigation was complete, Chakraborty raised a claim with an employment tribunal.

When the independent investigator submitted their draft report to the university in February 2022, 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, Chakraborty would be able to compare the two versions and, in doing so, infer 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.

When the employment tribunal rejected this argument, the university appealed. But following a hearing of the Inner Court of Session  it was ordered to disclose the original report to Chakraborty. Delivering the court’s opinion (11 pages / 544KB PDF), Lord Carloway said it “agreed with the general principle” relating to legal advice privilege set out in English law.

Lord Carloway rejected the notion that material could gain privilege retrospectively, citing a previous ruling in England & Wales that held: “it ought to be possible to say of any material at its creation whether or not it is privileged from disclosure. Its status ought not to depend upon the use subsequently made of it, or the fortuity whether it is used in the manner intended.”

Investigations expert Alistair Wood of Pinsent Masons said the ruling reinforced the importance of appreciating, from the outset, the application of legal professional privilege to any internal investigation conducted and any reports produced. “It also specifically highlights the risks of an inadvertent waiver of privilege in the situation where legal advice is obtained by one party but shared with a person who has been tasked with conducting an independent and impartial investigation in relation to that party,” he added.

Lord Carloway said Chakraborty was only able to deduce what legal advice had been to the university over the report because it had decided to include a footnote in the final version that revealed that fact. He said the footnote amounted to a ‘waiver’ – the abandonment of the university’s right to legal advice privilege related to the final version of the report.

“In this case, the privilege was probably abandoned when the advice, which was obtained by the appellants, was revealed to the person who was carrying out what was supposed to be an impartial investigation.  It was certainly lost once it became known, as the footnote in the report stated, that the original report had been altered as a result of that advice,” he added.

Employment law expert Sarah Munro of Pinsent Masons said: “It is very common that there will be multiple drafts of grievance or disciplinary outcome reports and that the author will seek legal advice before finalising the report. This case is a useful reminder that an employment tribunal might order the original version of a report to be produced if it does not attract privilege. It is, therefore, important for employers to seek advice at an early stage in respect of disciplinary and grievance processes.”