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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kasongo v Humanscale UK Ltd (PRACTICE AND PROCEDURE –- Disclosure - Admissibility of evidence) [2019] UKEAT 0129_19_0909 (9 September 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0129_19_0909.html Cite as: [2019] UKEAT 129_19_909, [2019] UKEAT 0129_19_0909 |
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At the Tribunal | |
Judgment handed down 9 September 2019 |
Before
HER HONOUR JUDGE STACEY
(SITTING ALONE)
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APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DANIEL GODFREY (Representative) Camden Community Law Centre 2 Prince of Wales Road Kentish Town London NW5 3LQ |
For the Respondent | MR CHRISTOPHER EDWARDS (of Counsel) Instructed by: iGlobal Law 71 Queen Victoria Street London EC4V 4AY |
SUMMARY
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Admissibility of evidence
The Respondent before the Tribunal had disclosed a draft dismissal letter prepared by its solicitors from which it had redacted the solicitor's comments and notes. It was common ground that the draft letter was not legally privileged, but that the redacted parts were protected by legal advice privilege within the umbrella definition of legal professional privilege. The issue was whether the Respondent had waived privilege in the redacted parts of that letter by having disclosed two earlier documents. The issue was whether the Tribunal had wrongly found that one of the earlier documents was not protected by legal advice privilege and if it had erred in not dealing with the other document.
Held: The Tribunal had erred in failing to address or rule on the document it had not mentioned, and it was perverse to find the other document was not legally privileged when it was made for the purpose of obtaining or giving legal advice. The parties agreed that it was for this Tribunal to decide whether the Respondent was permitted to cherry pick and if it could maintain, or had waived, privilege in relation to the redacted parts of the draft dismissal letter by choosing to disclose other material that they were entitled to withhold as confidential.
It was further held that all three documents were part of the same transaction of providing legal advice about the dismissal of the Claimant. Given the nature and purpose of the disclosure, fairness required that the redacted part of the letter concerning the reason for the Claimant's dismissal also be disclosed, since it would be unfair to allow the Respondent who had waived privilege in relation to the other two documents not to reveal those redacted parts of the dismissal letter which related to the reason for dismissal. It would be impermissible cherry picking as the cliché goes. The redactions that did not concern the reason for dismissal, such as references to holiday pay entitlement and post-employment restrictive covenants could remain redacted, if the Respondent so desired. But the Respondent consented to removing those redactions for consistency and transparency and would excise the redactions for the trial bundle.
HER HONOUR JUDGE STACEY
a. The redacted part of the 2 February draft dismissal letter was covered by legal professional privilege;
b. It had been inadvertently disclosed in that it had not been intended that the Claimant would be able to read the redacted words;
c. It would have been obvious to her that she was not intended to read the redacted words;
d. Ms McGrath's email of 25 January 2018 to the Respondent in-house counsel did not attract legal professional privilege. The Tribunal does not appear to have considered Ms McGrath's note of Mr Williams' legal advice received earlier on 25 January 2018 (although it was common ground that it was before it);
e. There had therefore been no cherry picking by the Respondent's lawyers and they had not selectively disclosed and waived privilege in some, but not all of the documents, since only the redacted part of the 2 February 2018 letter was privileged; and
f. The Claimant could not rely on the redacted parts of the letter at the forthcoming hearing.
"In cases of doubt the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification for legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.
"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".
"(i). One should identify the "transaction" in respect of which the disclosure has been made.
(ii). That transaction may be identifiable simply from the nature of the disclosure made – for example, advice given by counsel on a single occasion.
(iii). However, it may be apparent from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If it does, then the whole of the wider transaction must be disclosed.
(iv). When that has been done, further disclosure will be necessary if that is necessary in order to avoid unfairness or misunderstanding of what has been disclosed."