UK: Update On "Cherry Picking" The Waiver Of Legal Professional Privilege

What is privilege?

Privilege is a well-known right entitling a person who is involved in legal proceedings, in certain circumstances, to withhold documents from inspection by their opponent during the disclosure process. The privilege in the document belongs to, and therefore can only be lost (or waived) by, the client – for example, if the document ceases to be confidential.

This is important because, in legal proceedings, the parties have to disclose documents relevant to the dispute to their opponents. In most proceedings, the documents to be disclosed will include those the client relies upon as supporting their case, along with any relevant documents which adversely affect it. Privilege protects certain otherwise relevant documents from being seen by an opponent as part of this process.

The main types of privilege are:

  • Legal advice privilege: This protects any confidential communications, and evidence of those communications, between a lawyer and their clients for the purposes of giving or receiving legal advice. It also protects communications sent by lawyers to their clients as an information update, so they can give (or their clients can ask for) legal advice when necessary. It does not protect documents which are created internally by the client, unless those documents have been created for the purposes of giving or receiving legal advice.
  • Litigation privilege: This applies where litigation is reasonably in prospect, i.e. it is contemplated but has not necessarily started. It protects all confidential documents created for the dominant purpose of conducting or aiding the conduct of the litigation. Litigation privilege is broader in scope than legal advice privilege. It will extend to protect confidential communications with third parties by both a client and its lawyers, e.g. witnesses and experts. It also covers any adversarial proceedings, not just litigation.
  • Without Prejudice Privilege: This applies to discussions and documents created while genuinely negotiating in an attempt to settle a dispute. By way of example, without prejudice offers to settle a claim or admissions made during without prejudice negotiations aimed at settling a dispute are protected from disclosure during any continuing or subsequent legal proceedings.

Case update

In Kasongo v. Humanscale UK Ltd, the EAT has clarified that legal professional privilege cannot be "cherry picked". Even with a break in time between communications, if the advice relates to the same matter or legal question, privilege cannot be selectively waived for some communications related to it, but not others.

In Kasongo, the claimant was dismissed two weeks after informing her manager that she was pregnant. The grounds for her dismissal were her poor performance, attendance and lateness. The claimant alleged, among other points, that the real reason for her dismissal was her pregnancy. During the disclosure process, the respondent disclosed:

  • a note, prepared by the respondent's HR manager, of telephone advice which she had received from their external solicitor in relation to the dismissal;
  • an email of the same date from the HR manager to the respondent's in-house counsel, summarising the advice, and explaining that they wished to terminate the claimant's employment "based on behaviour (issues with tardiness, attendance and quality of work)"; and
  • a draft dismissal letter prepared by the respondent's external solicitor, with comments from the solicitor which were redacted.

Despite the redaction, the claimant was able to read the redacted comments from the solicitor in the dismissal letter. The comments appeared to suggest that the respondent was trying to come up with excuses to avoid a discrimination claim. The claimant sought to rely on these comments as evidence of discriminatory behaviour. However, the respondent contended that the letter was covered by legal advice privilege and therefore could not be relied upon.

As noted above, legal advice privilege is one of three types of privilege, and is intended to enable clients to place unrestricted confidence in their lawyer. The courts confirmed in Three Rivers DC v. Bank of England (No 5) that legal advice privilege can also extend to materials which "evidence" the substance of confidential communications passing between clients and lawyers for the purpose of giving or receiving legal advice, as well as any information prepared to be communicated but never actually is. As a result, the judge at first instance accepted the respondent's arguments that the draft dismissal letter referred to above was covered by legal advice privilege.

The respondent also submitted that the draft dismissal letter was not part of the same "transaction" as the note and the email, and that therefore they were not "cherry picking" their waiver of privilege by having disclosed those documents, while still seeking to rely on privilege to redact the draft dismissal letter. Ultimately, the respondent contended that the draft dismissal letter did not fall within a collateral waiver, whereby a party elects to waive privilege in some documents, and is therefore obliged to disclose documents that form part of the same "transaction". The judge did not comment on the attendance note, but found that the email to the in-house counsel was not privileged in any case, because the advice did not come from a legal adviser.

On appeal, the EAT stated that the tribunal had been wrong to conclude that the email (and note) were not subject to legal advice privilege. Even though the communication had not been between a lawyer and client, the advice provided by the lawyers to the HR manager did not lose privilege just because it was communicated internally in the same organisation (even though it had been paraphrased). Further, the EAT found that the letter was clearly part of the same "transaction" as the note and email, given that it related to advice about the claimant's dismissal. The six-day gap between the advice and the draft dismissal letter did not affect the continuum of the advice being provided to the legal question of whether the claimant could be dismissed. As a result, the decision to invoke privilege with the letter was found to be selective, and was done to obtain a forensic advantage. The EAT stated that the "cherry picking" risked unfairness and/or misunderstanding arising from the fact that the court would only have a partial view of the privileged material. Therefore, the respondent's position was rejected. The claimant was therefore allowed to rely upon the full letter in its complete unredacted form, given the respondent had chosen to waive privilege in respect of the note and email.

Points to note going forwards

This decision is a stark reminder that employers should take care not to inadvertently waive privilege on communications with lawyers, if they relate to advice on a matter, without considering if they would also want to waive privilege in respect of all other communications related to that specific matter (regardless of the time that may have passed between the giving of each piece of advice). When considering whether matters are related in this context, the question is whether the advice given ultimately relates to the same legal question.

Some further takeaway points for employers include:

  • exercise restraint in creating documents by communicating orally. It may be more efficient and effective to hold a meeting to discuss any relevant issues face to face, rather than have a chain of emails which may later have to be disclosed in court;
  • unless communicating with lawyers in circumstances where privilege can be guaranteed, do not provide opinions about matters such as whether something is good or bad, strong or weak. Instead, only record facts accurately and concisely;
  • for disclosure purposes, the term "documents" captures letters, emails, diaries, handwritten notes, CDs, electronic files, photographs, text messages and voicemail recordings, as well as records obtained from hard drives, mail servers and mobile phones;
  • ensure that, when reporting on legal advice, any documents recording that advice are separated from any other commercial issues (preferably in a different note); and
  • where possible, store privileged documents separately from non-privileged documents.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions