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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Brennan & Ors v Sunderland City Council Unison GMB [2008] UKEAT 0349_08_1612 (16 December 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0349_08_1612.html Cite as: [2008] UKEAT 349_8_1612, [2009] ICR 479, [2008] UKEAT 0349_08_1612 |
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At the Tribunal | |
On 25 November 2008 and 8 December 2008 |
|
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR K EDMONDSON JP
MR M WORTHINGTON
APPELLANT | |
UNISON GMB |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR PHILIP ENGELMAN (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road NEWCASTLE-upon-TYNE NE4 8AW |
For the First Respondent |
MR DAVID READE (One of Her Majesty's Counsel) and MR SEAMUS SWEENEY (of Counsel) Instructed by: Robert Rayner, City Solicitor Sunderland City Council Legal Services P O Box 113 Civic Centre SUNDERLAND SR2 7DW |
For the Second and Third Respondents |
MR ANTONY WHITE (One of Her Majesty's Counsel) and MR JASON GALBRAITH-MARTEN (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street NEWCASTLE-upon-TYNE NE1 1TH |
SUMMARY
PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and therefore privilege was waived. The Tribunal rejected the application and the EAT held that they were right to do so.
Consideration of the operation of waiver principles.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The decision under appeal.
(1) All legal advices on the issue of pay protection, and
(2) Un-redacted Minutes of, and reports to, the council in relation to cabinet meetings held on 7 December 2005 and 18 January 2006.
These two areas were referred to as the reference issue and the redaction issue respectively.
A summary of the issues.
The relevant law.
(1) As a matter of public policy, all communications between a legal adviser and/or his or her client are privileged from date of production so long as they are confidential, written by or to the legal adviser in his or her professional capacity, and for the purpose of giving or getting legal advice: see Mallins VC in Wilson v Northampton & Banbury Junction Railway Company [1872] LR 14 Eq 477. The interest which it protects is to ensure that communications between a solicitor and client may be frank and free and should not emerge into the public domain if litigation is subsequently pursued.
(2) A party may, however, waive that privilege. Classically, and uncontroversially, this would be so in instances where the party refers in detail to, and seeks to rely upon, part of a document setting out legal advice, but resists the other party's efforts to obtain disclosure of the whole of that advice.
(3) Whether or not privilege has been waived is determined by the application of the principle of fairness. In Burnell v British Transport Commission [1955] 1 QB 187 for example, Denning LJ at p190 stated:
"It would be most unfair that cross-examining counsel should use part of the document which was to his advantage and not allow anyone, not even the judge or the opposing counsel, a sight of the rest of the document, much of which might have been against him."
In Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 Templeman LJ said
(p. 538):
"In my judgment, however, the rule that privilege relating to a document which deals with one subject matter cannot be waived as to part and asserted as to the remainder is based on the possibility that any use of part of a document may be unfair or misleading ..."
A more recent formulation is seen in the judgment of Mustill J, as he was, in Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [1981] Com. L.R. 138, which has been cited with approval in a number of more recent decisions of the Court of Appeal including Great Atlantic Insurance Co. v Home Insurance and others [1981] 1 WLR 529; Dunlop Slazenger International Limited v Joe Bloggs Sports Limited [2003] EWCA Civ 901 and R v Secretary of State for Transport ex parte Factortame (CO/1735/88):
"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 release 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 through its real weight or meaning being misunderstood."
This is frequently referred to as the "cherry picking" principle. A party cannot seek to gain an advantage in litigation by placing part of a document before the court and withholding the remainder.
(4) The fact that waiver is accidental makes no difference; once waived, the whole document must be produced (or at least all parts of the document relating to that subject matter). So, in the Great Atlantic Insurance case counsel inadvertently waived privilege by referring to part of a memorandum sent by the solicitors to the client without appreciating its origin.
(5) A document may be redacted to remove immaterial matter or material of no relevance to the case, whether privileged or otherwise.
The hearing before the Employment Tribunal.
"12.1 H(i) 282 indicated that, at a meeting held on 22 June 2005, Mr Roberts had said: "We are a long way apart. Is it fundamental difference of legal advice. How about we procure joint legal advice or share our legal advice. Our genuine belief can't perpetuate discriminatory bonus earnings. No progress otherwise."
12.2 At H(i) 375, in a meeting held in 6 July 2005, Mr Roberts was said to have stated: "On protection – we still have v. firm legal view, v. nervous, but seeking further view, hopefully by Friday."
12.3 During a meeting held on 20 July 2005 at H(i) 482 Mr Roberts was recorded as saying: "We've pumped £4.3m into the P+G (Pay and Grading) model. Not moral to give the winners more. We've pushed the boundary on legal advice. Can't shift."
12.4 H(ii) 12, relating to a meeting held on 22 August 2005, indicated that Mr Roberts told the trade unions: "On protection – legal advice goes beyond three years. So 1) duration can't move, 2) % in 1st/2nd/3rd year 100/75/50 new offer. No further" and after one of the trade union officials had referred to their own legal advice added "Not asked lawyers to constrain us. Only 'no risk' is no protection. We are also advised to get an independent view" after which the trade union official also said his "legal advice is four years can be defended."
12.5 At a meeting on 28 November 2005 H(ii) 225 indicated that Mr Roberts stated (during discussions at which trade union officials were not present): "How to play this. New/extra legal advice on risk of alternative scenarios. S Sweeney 24/11/05 four years protection as a last resort with many provisos. Big dilemma is Unions' aspiration of Gateshead protection but we can't offer pay increases 'cos makes the gap bigger and make sex tainted payment bigger."
"In interlocutory proceedings and before trial it is possible to allow a party who discloses a document or part of a document by mistake to correct the error in certain circumstances. Where a document has been disclosed as a result of misconduct by the defendants, against the will of the plaintiffs and in any event not by the deliberate act of the plaintiffs, then remedial action both before and during the trial may be possible. But in my judgment the plaintiffs deliberately chose to read part of a document which dealt with one subject matter to the trial judge, and must disclose the whole."...emphasis added.)
" ..The test for whether on discovery part of a document can be withheld on grounds of irrelevance is simply whether that part is irrelevant. The test for whether part can be withheld on grounds of privilege is simply whether that part is privileged. There is no additional requirement that the part must deal with an entirely different subject matter."
The Tribunal accepted the arguments of Mr Reade and held that the redaction had been proper and that there was no waiver of privilege.
The grounds of appeal.
Stating, what Tamberlin J described as the "substance and effect" of the advice given to the other party "in order to emphasise and promote the strength and substance of the case to be made against Mr Bennett."
The judge then referred to the following passage from the judgment of the High Court of Australia in Mann v Carnell (1999) 201 CLR 1. Gleeson CJ, Gaudron, Gummow and Callinan JJJ said (at CLR 13 [29]):
"What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large.
... Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect ... considerations of fairness may be relevant to a determination of whether there is such inconsistency." (Emphasis added.)
Tamberlin J then said this:
"Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege. ... If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that consideration of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication. ... Where, however, he does no more than make use of privileged material (that is, legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege. ..."
" …. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is inconsistency between the conduct of the client and maintenance of the confidentiality that effects a waiver of the privilege. What brings about the waiver is the inconsistency that the court perceives (informed, where necessary, by considerations of fairness) between the conduct of the client and the maintenance of the confidentiality. Disclosure by a client of confidential legal advice received by the client will effect a waiver of privilege if such disclosure is inconsistent with the confidentiality that the privilege serves to protect. It does not matter why the disclosure has occurred: it may be for the purpose of explaining or justifying the client's actions or for some other purpose. However, considerations of fairness will be relevant to a determination on whether there is such inconsistency: see Mann v Carnell (at 13 [28]-[29] and 15 [34]).
36 Thus, in determining whether there is inconsistency between disclosure of the substance of confidential legal advice and maintaining confidentiality in respect of the legal advice, considerations of fairness will be relevant. That is a matter of judgment for a court when called upon to rule on the question of whether privilege has effectively been waived. …"...emphasis added.)
"the voluntary disclosure of the gist or conclusion of the legal advice amounts to a waiver in respect of the whole of the advice to which reference is made." (para 65)
"… If one goes to one of the text books, Matthews & Malek, one finds at paragraph 10.17 a summary of the position as those authors see it. First of all, in that paragraph there is the reference to the dictum of Mustill J (as he then was) in Nea Karteria, which provides as follows:"
"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 release 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 through its real weight or meaning being misunderstood."
"I would describe that as the cherry picking aspect. Then the paragraph reads as follows:
"The key word here is 'deploying'. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document's effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party's need to give full and frank disclosure, eg on a without notice (ex parte) application."
So it is that the authors correctly identify that the authorities provide for a distinction between a reference to the effect of the document and reliance on the content. Mr Croxford suggests that this is a reference case and not a deployment case."
"The plaintiffs obtained outside Japanese legal advice which categorically states that this agreement does not render performance of the sale contract illegal in any way whatsoever."
"… In my judgment, the same principle applies here. All that the deponent was doing was saying: "Well, I am asking the court to allow service out of the jurisdiction. I am being frank with the court. I have received certain information from Japan and I believe it provides no defence to the defendants." In other words, he was not relying on the contents of the document: he was relying on the effect of the document. He had to refer to the Japanese lawyers because he was under a duty to give the source of his information and he could only do so by referring to what they had told him."
"In some cases it will be hard to draw the line between disclosure of contents and the mere effect of advice"
but he was satisfied in the particular circumstances of that case that what was disclosed did not extend beyond the effect of the advice.
"… Of course, the scope for unfairness depends on the breadth of the matter in issue or their severability if more than one, and on the exact relationship and/or relevance to such issue(s) of the documents respectively disclosed and sought to be withheld. It may or may not be that partial disclosure of documents going to a matter or matters in issue, say in an exchange of correspondence with legal advisers, would be unfair.
Much depends on whether the party making partial disclosure seeks to represent by so doing that the disclosed documents go to part or the whole of an "issue in question", the expression used by Mustill J in the passage from his judgment in Nea Karteria that I have cited. The issue may be confined to what was said or done in a single transaction or it may be more complex than that and extend over a series of connected events or transactions. In each case the question for the court is whether the matters in issue and the document or documents in respect of which partial disclosure has been made are respectively severable so that the partially disclosed material clearly does not bear on matters in issue in respect of which the material is withheld. … ."
The Redaction issue.
Conclusion.
Disposal.