Inner House rules comparing versions of documents made before and after legal advice does not invoke legal privilege

About this case:

• Citation:
  [2023] CSIH 22
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

The issue arose in an appeal raised by the University of Dundee from an Employment Tribunal case involving its former employee Prasun Chakraborty. The respondent had sought to have the original version of the document produced as he believed it would be helpful to his case that he had been racially discriminated against by a professor he had been hired to assist.

The appeal was heard by the Lord President, Lord Carloway, together with Lord Turnbull and Lady Wise. Lord Davidson of Glen Clova KC appeared for the appellants and Hay, advocate, for the respondent.

Confidentiality of communication

The respondent worked for the university as a post-doctoral research assistant from January 2013 to December 2021. On 10 November 2021 he raised a grievance against the professor he assisted, Professor Hiom, alleging bully and racial abuse and discrimination. Prior to the outcome of the internal grievance procedure, he raised a claim with the ET for unfair or constructive dismissal, seeking compensation of between £400,000 and £500,000.

A member of university staff, Professor Niamh Nic Daeid, was tasked with investigating the respondent’s complaint. She issued her report to the appellants on 28 February 2022. In March and June 2022, that report was amended by the appellants’ law agents, which was noted in the final document. The respondent expressed suspicions during the ET hearing in July 2022 that the original version of the report contained findings that the appellants had altered in order to help Prof Hiom and sought recovery of the original version of the document.

The ET rejected an argument by the appellants opposing recovery on the basis that a comparison of the original and final versions would reveal the legal advice tendered to them. An appeal to the Employment Appeal Tribunal was unsuccessful, noting that it was not explained how it was possible to make a comparison exercise.

For the appellants it was submitted that what was prohibited from being done directly could not be achieved by indirect means. Thus, where a document which was not itself privileged would permit the content of legal advice to be deduced, privilege could be invoked to prevent its disclosure. For the respondent it was argued that no relevant legal context had been demonstrated by the appellants. The modification of the report following legal advice suggested a lack of neutrality and independence and raised questions about the integrity of the investigation.

Revealed the existence

Delivering the opinion of the court, Lord Carloway observed: “It may not be obvious to grasp why the appellants were seeking legal advice once Prof Nic Daeid had produced her report on 28 February 2022, but there is no doubt that, whatever the reason was, the advice tendered would be privileged as being simply a communication arising out of the relationship of lawyer and client. The appellants were seeking legal advice and that advice is confidential.”

He continued: “However, that is irrelevant. The advice could not have influenced the original version of the report because it had not then been tendered. The original version does not therefore attract privilege and the appellants were correct to concede that point. The argument then becomes one of whether it became confidential when the final version was issued because a comparison of the differences would permit an inference about what the legal advice had been.”

Addressing this argument, Lord Carloway said: “Although the court agrees that, as a generality, confidentiality will extend to material which would allow the reader to work out what legal advice had been given, the original report does not do that, and that is what this case is about. The respondent may be able to deduce what legal advice might have been given only because the appellants themselves revealed the existence of such advice as having influenced the content of the final version.”

Determining whether any privilege that might have existed had been waived, he concluded: “It must have been obvious to the appellants, when they revealed the content of the final version of the report, that the basis of that report would have to be the subject of scrutiny by the Employment Tribunal. If some of its content were based on legal advice, that advice would have to be revealed in the interests of both fairness and understanding.”

For these reasons, the appeal was refused.