UK: Privilege: A Reminder Of The Dangers Of Cherry Picking

Last Updated: 19 September 2019
Article by Anna Pertoldi, Maura McIntosh and Jan O'Neill

The Employment Appeal Tribunal (EAT) has held that an employer waived privilege in redacted parts of a draft dismissal letter setting out its lawyer's comments, as a result of the employer's decision to rely on other privileged material relating to the claimant's dismissal: Kasongo v Humanscale UK Ltd [2019] UKEAT 0129_19_0909.

It is well established that, where a party to proceedings deploys privileged material to support its case, the "cherry picking" rule (also known as the principle of collateral waiver) means that the waiver may extend more broadly than intended. A court or tribunal may require the relevant party to disclose further privileged material, which relates to the same issue or transaction, to avoid giving an unfair or misleading impression based on the material disclosed. In the present case, the EAT rejected the employer's submission that the redacted comments represented a separate "transaction" from the legal advice given six days earlier and therefore were not caught by the cherry picking rule. They were all part of the same transaction, which was advising the employer on the claimant's dismissal.

While the decision is not surprising on its facts, it acts as a reminder of the dangers of relying on privileged material – even where it appears on its face to be helpful to a party's case – if there is related privileged material which is less helpful and may undermine the benefit obtained. Given the risks of opening up further privileged material, and the difficulty of anticipating where the line will be drawn in a given case, a decision to waive privilege should never be taken lightly.

Background

The claimant was dismissed on 15 February 2018 after 11 months' service. She brought claims against her former employer for unfair dismissal and discrimination due to pregnancy, alleging that she informed her manager that she was, or might be, pregnant on 30 January 2018. The employer defended the claim on grounds that it was unaware of the pregnancy and that her dismissal was entirely due to performance issues.

Documents disclosed by the employer in the proceedings included the following, which appeared to corroborate its position that the claimant's dismissal was already in hand before the date she says she told her manager she might be pregnant:

  • a contemporaneous note of a telephone call between the employer's senior HR manager and its external solicitor on 25 January 2018, setting out advice received from the solicitor about the possible termination of the claimant's employment; and
  • an email sent by the HR manager to the employer's in-house counsel later that day, explaining that the employer "would like to terminate an employee asap based on behaviour (issues with tardiness, attendance and quality of work)", summarising the external legal advice received, and asking for views.

The employer also disclosed a draft dismissal letter dated 2 February 2018 which had been prepared by the employer's lawyers, from which certain comments by its lawyers had been redacted. The claimant somehow managed to read the redacted words, which included the lawyer's comment in bold italics, after the explanation for dismissal given in the draft letter: "please double check I have this correct factually and that you are not uncomfortable with us saying any of this. The idea is to do enough to show we've not dismissed her for any discriminatory reason". The claimant sought to rely on these words at the employment tribunal hearing. The employer objected.

The employment tribunal held that the claimant could not rely on the redacted part of the letter as it was covered by legal professional privilege and it would have been obvious to the claimant that the employer had not intended to disclose it. The tribunal also found the HR manager's email to the in-house counsel was not privileged and so there was no "cherry picking". (The tribunal did not make a finding about the HR manager's note of the legal advice received from the external solicitor earlier the same day.) The claimant appealed.

Decision

The EAT allowed the appeal and held that the claimant could rely on the redacted words.

In the course of argument before the EAT, the employer "sensibly conceded" that the HR manager's note and subsequent email were covered by legal advice privilege. The EAT said that the tribunal's conclusion that the email was not privileged, and its failure to reach a decision on the note, clearly amounted to an error of law.

Since both the note and email were privileged, and the employer had chosen to disclose them in its list of documents, it had waived privilege in respect of them. Citing Lord Bigham CJ in Paragon Finance plc v Freshfields [1999] 1 WLR 1183 1188C-D, the EAT stated:

"A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose.... 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".

The EAT noted that this practice of selective waiver that is unfair or risks misunderstanding is often referred to as "cherry picking". In the present case, the employer effectively conceded that the waiver led to a risk of a partial or misleading picture, but argued that the draft dismissal letter was not part of the same "transaction" as the note and email, and therefore the redactions were not caught by the cherry picking rule. The employer relied on Dore v Leicestershire County Council [2010] EWHC 34 (Ch) (considered here) and Fulham Leisure Holdings Ltd v Nicholson Graham Jones [2006] EWHC 158, in which Mann J held that waiver only applied to the "transaction" in respect of which disclosure had been made.

The employer submitted that there was a clear distinction and difference between the legal advice given on 25 January and the advice on the wording of the draft dismissal letter of 2 February 2018, and they were separate transactions. The redacted letter was therefore unaffected by the waivers of privilege.

The EAT agreed with the claimant's submission that this was a "wholly artificial distinction". The documents were all part of the same transaction, ie the giving of legal advice about the claimant's dismissal and the possible legal implications. That was not affected by the six day gap between the documents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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