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Waiver of privilege

The two sides in an employment tribunal case are normally required to disclose to each other all the documents they have that are relevant to the dispute. An important exception to this rule is ‘privileged’ documents: that is, communications with their lawyers for the purposes of legal advice (‘legal professional privilege’) and communications or documents created for the purposes of pursuing or defending the claim (‘litigation privilege’). (For a fuller explanation, see paragraphs 4.29-4.36 of the book.)

Legal professional privilege is often particularly important. Your employers may have gone to their lawyers when you first made your request for reasonable adjustments – for example – and asked ‘Do we have to do this? Can’t we just sack her if she can’t do the job any more?’ Their lawyers may have written them a long sorrowful letter of which the gist is ‘Unfortunately not: there’s this really annoying bit of legislation called the Disability Discrimination Act. You will have to go through the motions at least.’

Obviously if the Tribunal was shown this correspondence, it could help you win your case, so you’d like to get your hands on it. But normally you’re not entitled to, because it is privileged.

Employers can be careless, though, about accidentally waiving privilege. If they mention the legal advice that they have received in their witness statement, they may have waived their legal professional privilege and given you the chance to demand to see the advice. If, for example, they say something like “We took legal advice on our duties under the DDA, and we followed it to the letter,” you can ask the tribunal to order them to disclose that advice to you.

You may want to rely on either or both of the following quotes:

Paragon Finance v Freshfields [1999] 1 WLR 1183, 1188 C-D (Lord Bingham):

‘A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose. Where the disclosure is partial, issues may arise on the scope of the waiver. Practical difficulties occur in determining such issues…. But the law is clear. While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.’

Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation, quoted by Waller LJ in Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 at paragraph 11:

‘Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to relase from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice.’

Be prepared for a tussle if you make a request of this nature. Not all employment tribunal judges will have the rules about waiver of privilege at their fingertips, and employers and their lawyers are likely to oppose the application vigorously. So go armed with full copies of the authorities, and explain carefully why you say privilege has been waived in your case. You might also want to take copies from Phipson on Evidence (16 ed. Sweet & Maxwell 2005) paragraphs 26-15 and 26-16. (You are likely to need to get access to a law library for this. Phipson is a difficult, dense book written for practising lawyers. Even if you find it hard to understand yourself – don’t feel stupid if you do, as it is the kind of material that plenty of trained lawyers find daunting – you are entitled to assume that the employment judge in your case will be able to cope with it.)

5 comments

  1. Peter Ward, Barrister

    The Employment Appeal Tribunal has recently considered this very point in Mrs M Brennan & Ors. v. Sunderland City Council & GMB [2008] UKEAT/0349/08 (Elias P.). Although the application to disclose was unsuccessful at both first instance and on appeal, and the judgment itself is a little lengthy it is well worth a read.

    The key paragraphs are 62-74, and I suggest the test is twofold:

    I. Has the nature of any legal advice been revealed as distinct from a mere reference to the fact that such advice was received?

    II. Is the advice now being relied on (or ‘deployed’) as part of a party’s case?

    Crucially though (and this judgment appears to break new ground) these questions are to be viewed compositely within the overarching principle of fairness, as distinct from two boxes that both require ticking.

    However, whereas the second question is crucial the interests of fairness prevail over the first. Accordingly even if the answer to the first question is borderline it should still be argued before a court or tribunal that privilege has been waived ‘in the interests of fairness’ and disclsoure ordered in the other party’s favour.

    • ken

      if the respondent accidentally send an email to me in which they disclose the their intention to deploy a strategy in the ET in which exploit my communication difficulties (the negative effects of my disabilities -I have dyslexia and aspergers). Is that document likely to be privileged considering that it is also an intention to discriminate?

  2. Tracy Jones

    Hi there.

    Would emails that have sent between a management team be subject to litigation privilege or does there have to be a lawyer included in the communication for it to be protected?

  3. Naomi

    That depends – basically – whether the emails are about the litigation, or about the events that gave rise to the litigation. Documents created for the ‘dominant purpose’ of actual or contemplated litigation are covered by litigation privilege, whether or not lawyers are involved.

    But communications between managers at the time of the events that are now the subject of litigation won’t normally be privileged. Communications between managers and lawyers normally will be, even if no-one is thinking of litigation at the time.

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