Findings on privilege and admissibility of contested documents

Here are the Tribunal’s findings on the admissibility of ten documents which the respondent claimed were privileged and not admissible as evidence. The most important of these were documents C1(1) and C1(3) (documents at pages 1 and 3 of the contested Bundle C1). The Tribunal ruled that all were admissible. Most of the documents were considered by the Tribunal having been voluntarily redacted by the Claimant. However, document C1(1) was considered in its unredacted form at the request of the Claimant, and document C1(3) was considered in its unredacted form at the request of the Respondent.

Extracts from the documents AVOW tried to suppress can be read here.

Claimant: Ms Bove
Respondent: AVOW

Original paragraph numbers in [square brackets]

Tribunal’s Findings

Third preliminary matter: admissibility of allegedly privileged documents

[24] The respondent applied for a ruling that the seven documents in bundle C1 were privileged and that the claimant could not rely on them. They comprised correspondence passing between the respondent and RBS Mentor Services, the organisation that employs Ms Bibi and which has acted as both insurer and representative to the respondent. This was a more complex point and it required careful consideration, since these documents were central to the claimant’s contention that Mr Gallander had acted with discriminatory motives.

[25] As noted above, at a CMD on 13 October 2009, Employment Judge Harris set down the matter for consideration at a PHR; for the reasons we have given, no decision in that regard was ever promulgated following the PHR on 10 February 2010; and, at a further CMD on 25 August 2010, with the agreement of the parties, Employment Judge Hoult directed that the question of admissibility be determined at the full merits Hearing.

[26] It is never ideal for the Tribunal assigned to hear a claim to be asked to determine the admissibility of potentially privileged documents by inspecting them. However, that is what the parties asked us to do; and they both confirmed that they were happy for us to go on with hearing the claim regardless of our determination on the point.

Circumstances of the disclosure and the later assertion of privilege

[27] There is no factual dispute over the circumstances in which the documents in bundle C1 came into the claimant’s possession. The respondent sent them to her as part of its disclosure on two occasions, in September 2008 and May 2009, in response to subject access requests she had made under the Data Protection Act 1998. Mr Gallanders, the respondent’s chief officer, told us that Rachel Ross (his deputy) collated the first disclosure in September 2008 while he personally collated the second disclosure in May 2009 with the assistance of Gail Thomas (a trustee).

[28] The first disclosure included the document at C1(1). The claimant acted promptly in bringing her possession of it to the respondent’s attention. She handed a copy of it to two trustees, Gail Thomas and Brian Neale, at a meeting on 16 October 2008. Ms Thomas then gave it to Mr Gallanders. Despite knowing the claimant was in possession of it, however, Mr Gallanders did not ask for it back.

[29] Having disclosed such material to the claimant once, the respondent did it again with the documents at pages C1(2) to C1(10). They were sent under cover of a letter dated 13 May 2009 (C2, page 9). On 16 May 2009, the claimant wrote to the respondent to contend that it had waived privilege and, among other things, asked for full disclosure of all correspondence with its legal advisers (C2, page 10). Once again, the respondent did not ask for the return of these documents. Instead, on 29 May 2009, Mr Gallanders wrote to the claimant in these terms: “any additional items that have not been disclosed are being retained under professional privilege” (C2, page 12). He did not assert privilege over the documents that had already been disclosed. In another letter dated 23 June 2009, he again passed up the opportunity to assert privilege over the documents already disclosed (C2, page 15).

[30] Ordinarily, we would have much sympathy for the reluctance of a small charity to incur the legal costs associated with an application to restrain a claimant from using potentially privileged documents or seeking their “delivery up”. However, it is clear that the trustees and managers of the respondent simply did not apply their minds to the question of seeking their return. Mr Gallanders did not, for example, write to the claimant to ask for the documents back; we emphasise that he simply asserted privilege over documents that the claimant had not yet seen. The first occasion on which the respondent asserted privilege over the documents already disclosed to the claimant was at the CMD before Employment Judge Harris on 13 October 2009: this was, by now, about 13 months after the first disclosure and five months after the second disclosure. In the meantime, some of these documents had become central to the developing factual narrative of the case: for example, negative comments made by Mr Gallanders about the claimant in the document at C1(1) had become the subject of a further internal grievance by her and the respondent’s alleged failure to deal with that grievance turned into one of her stated reasons for resigning (pages 575 to 582).

The content of the documents

[31] We then turned our attention to the content of the seven disputed documents. The claimant had voluntarily redacted a significant amount of their content and this is the state in which they appeared in C1. She sought to rely only on the redacted versions, with the exception of the document at C1(1) which she wanted us to see in full. We therefore limited our examination to that material. It comprised the following:

[31.1] The document at C1(1) was a note written by Mr Gallanders to RBS Mentor Services. He has accepted that he was the author of the document and that, despite being undated, it was written on 29 July 2008. It contained a section headed “Confirmation of Mentor Advice” and dealt with the matter of the potential application of TUPE to the claimant. As stated above, it contained some negative remarks about the claimant.

[31.2] The document at C1(2) was a heavily redacted email from Ms Brenda Egan of RBS Mentor Services dated 30 July 2008 dealing only with the application of TUPE.

[31.3] The document at C1(3) was an unredacted email dated 19 September 2008 from Mr Gallanders to Ms Egan about medical issues and CRB checks.

[31.4] The document at C1(4)-(5) was an unredacted email dated 14 October 2008 from a Ms Karen Moglia of RBS Mentor Services containing a first draft of a grievance outcome letter.

[31.5] The document at C1(6)-(7) was a redacted email dated 4 February 2009 from Mr Gallanders to Ms Bibi and a Mr Gavin Booth of RBS Mentor Services discussing her claim.

[31.6] The document at C1(8) was a redacted email dated 17 February 2009 from Mr Booth to Mr Gallanders discussing the claimant.

[31.7] The document at C1(9)-(10) was a redacted exchange of emails dated 15 and 19 February 2009 between Mr Gallanders and Ms Bibi discussing the claimant.

[32] The content of the disputed documents related in the main to three matters: (a) the TUPE claim; (b) issues arising from the claimant’s migraines and her continuing employment; and (c) questions of settlement. The claimant had redacted all references to settlement figures. The principal reason she sought to rely on them was because their content was said to cast light on the underlying motives of Mr Gallanders in his dealings with the claimant, in which regard the documents at C1(1) and C1(3) were the most important.

The nature of the privilege asserted

[33] We rejected Ms Bibi’s suggestion that, simply because Ms Egan had the letters “LL.B” after her name, we could assume that she was a qualified lawyer. Ms Egan identified herself in her email as a “Senior Employment Law Consultant”. Ms Bibi was also unable to confirm whether Mr Booth and Ms Moglia were qualified lawyers. Accordingly, we adopted the approach taken by the EAT in Scotthorne v. Four Seasons Conservatories (UK) Limited (EAT/0178/10): we considered that we were looking not at legal advice privilege (communications with lawyers) but at litigation privilege (communications with third parties). Ms Bibi agreed that we should consider the application of privilege on this basis.

First question: were the documents protected by litigation privilege?

[34] Set against that background, the first question to answer was whether the documents were protected by litigation privilege at all. To be protected by litigation privilege, a document must be made for dominant purpose of litigation in circumstances where such litigation was existing, pending or reasonably contemplated. In assessing whether litigation is reasonably contemplated, there must be a “real likelihood” of it and not a mere possibility.

[35] At the time the documents at C1(1) and C1(2) were created, the claimant had yet to transfer to the respondent’s employment. She had sent a “formal grievance” to Mr Gallanders dated 23 July 2008 (pages 280 to 282), where she complained about the respondent’s view (which it then held) that TUPE did not apply to her and about the lack of information and consultation. She wrote that she had “made urgent contact with ACAS [and] with a specialist employment legal adviser”. She made no express or implied threat of litigation. We firmly reject Ms Bibi’s contention that an employee’s decision to raise an internal grievance with an employer raises a real likelihood of litigation; if intended as a general proposition, it would be a regrettable state of affairs; and, on the particular facts of this case, there was no such likelihood at this point.

[36] The document at C1(3) contained a request by Mr Gallanders for advice from Ms Egan about medical reports and whether the claimant could be asked to undergo a Criminal Records Bureau (CRB) check. By this time, the claimant had appealed the rejection of her TUPE grievance and had presented a further grievance about the lack of reasonable adjustments to the lighting arrangements (page 319). She had also sent a statutory DDA questionnaire on the lighting arrangements (pages 95 to 105). As Section 56(2) DDA makes clear, a questionnaire is served “with a view to helping the person aggrieved decide whether to institute proceedings”; it is not a prerequisite to Tribunal proceedings and it does not follow from its service that Tribunal proceedings are more likely. In our industrial experience, questionnaires, like grievances, often lead to the resolution or avoidance of disputes. The important point is that, by this time, the claimant had still made no express threat of litigation. Even taking the statutory questionnaire into account, we do not consider that she made an implied threat of litigation. To the contrary, a proper reading of her correspondence at the time underlines that the claimant was seeking a resolution to her grievance so that she could return to work.

[37] We therefore concluded that the documents at C1(1), C1(2) and C1(3) were not protected by litigation privilege. They were not created for the dominant purpose of litigation that was reasonably contemplated.

[38] In a letter dated 28 September 2008, the claimant mentioned for the first time that her TUPE case “will have to go to tribunal to be settled” (page 338) and it had begun to become entwined with her grievance about the lighting adjustments (for example, page 342). Thereafter, it was reasonable for the respondent to contemplate litigation and we are satisfied that the documents at C1(4) to C1(10) were created for that dominant purpose. We therefore concluded that they were, at the time of their creation, protected by litigation privilege.

The second question: had the respondent waived privilege?

[39] Ms Bibi’s submissions were limited to an assertion that the documents in the C1 bundle were privileged. Unfortunately, she did not refer us to any authority on the question of waiver and we were left to research the position for ourselves. However, this second question was just as important as the first: it addressed the admissibility of documents C1(4) to C1(10); and it provided an alternative route to the admissibility of documents at C1(1) to C1(3) in case we were wrong to say that they were not covered by litigation privilege (because, for example, the service of a DDA questionnaire raised an implied threat of litigation).

[40] Following discussion with the Tribunal, Ms Bibi accepted that the respondent had expressly waived privilege on the advice from RBS Mentor Services on the question of the application of TUPE. There was already open correspondence in the trial bundle where the respondent openly acknowledged to the claimant that it had received incorrect advice over the application of TUPE (see, for example, pages 334 and 393). As to the broader content of the documents in the C1 bundle, the more important issue to address was whether the respondent had waived privilege through inadvertent disclosure.

[41] We drew the parties’ attention to what we understood, from our research, to be the leading case on waiving privilege through inadvertent disclosure: Al Fayed v. Metropolitan Police Commissioner [2002] EWCA Civ 780. The Court of Appeal in that case examined the factors that a court would take into account when exercising its discretion under Part 31.20 of the Civil Procedure Rules, which provides that where a party inadvertently allows a privileged document to be inspected, the party who has seen the document may use it only with the permission of the court. It is an equitable jurisdiction based on restraining breach of confidence. We considered it good practice for an Employment Tribunal to apply the same principles that, having reviewed the authorities, the Court of Appeal set out at paragraph 16 of the Al Fayed case, namely:

(i)A party giving inspection of documents must decide before doing so what privileged documents he wishes to allow the other party to see and what he does not;

(ii)Although the privilege is that of the client and not the solicitor, a party clothes his solicitor with ostensible authority (if not implied or express authority) to waive privilege in respect of relevant documents;

(iii)A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived;

(iv)In these circumstances, where a party has given inspection of documents, including privileged documents which he has allowed the other party to inspect by mistake, it will in general be too late for him to claim privilege in order to attempt to correct the mistake by obtaining injunctive relief;

(v)However, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud;

(vi)In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake;

(vii)A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and either (a) the solicitor appreciates that a mistake has been made before making some use of the documents or (b) it would be obvious to a reasonable solicitor in his position that a mistake has been made; and in either case there are no other circumstances which would make it unjust or inequitable to grant relief;

(viii)Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive – the decision remains a matter for the court;

(ix)In both the cases identified in (vii) (a) and (b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances; and

(x)Since the court is exercising an equitable jurisdiction, there are no rigid rules.

[42] We set out these principles to the parties and sought their comments. Applying them to this case, we think it is very likely that a court would conclude upon application of CPR 31.20 that the respondent had waived litigation privilege and refuse to grant it any discretionary remedy. In reaching this conclusion, we were particularly swayed by the following:

[42.1] The claimant has approached this issue throughout with clean hands. She has not attempted in any way to disguise or conceal her possession of the documents. She brought her possession of them to the respondent at the soonest opportunity. There is absolutely no question of fraud.

[42.2] The “obvious mistake” committed by the respondent in disclosing the disputed documents was not, as is usually the case, their inadvertent inclusion in a package of material sent to an opponent. It was simply the mistake of not knowing that they were (or might have been) privileged, which is an entirely different type of mistake. That mistake is difficult to forgive in circumstances where the respondent was benefiting throughout from professional advice. It is even more difficult to forgive when it was made twice, even after the claimant had alerted the respondent to it first time around.

[42.3] The claimant has not been legally represented and so it is rather artificial to consider the approach of the “reasonable solicitor” who might have been advising her. In our view, however, a reasonable solicitor would conclude as we have done, namely that the documents at C1(1) to C1(3) were not protected by litigation privilege and so were not disclosed by obvious mistake. Moreover, in our view, a reasonable solicitor would be very slow to conclude that the second disclosure in May 2009 was an obvious mistake having regard to the fact that its attention had been drawn to the first disclosure in September 2008.

[42.4] A court would deal with the grant of injunctive relief in accordance with the usual principles applicable to discretionary remedies. In that context, it would be highly relevant that the respondent did not assert privilege over the documents until, respectively, 13 months after the first disclosure and five months after the second disclosure. These delays are of considerable length and the respondent has offered us absolutely no explanation for them.

[42.5] Finally, we cannot ignore the reality of the situation, which is that the disputed documents have been placed before the Tribunal. At the parties’ request, we have seen the documents. It is only possible to understand the chronology of the case by seeing the document at C1(1), which formed the basis for a later grievance by the claimant.

[43] For all these reasons, but most especially the respondent’s excessive delay in asserting privilege when compared to the claimant’s “clean hands”, we concluded that the disputed documents were admissible.

[44] Technically, this gave rise to the question of whether the waiver extended to further correspondence passing between the respondent and RBS Mentor Services. However, the claimant did not pursue that point and was content to rely on the redacted versions in the C1 bundle save that we agreed to admit the unredacted version of C1(1). Ms Bibi asked us to look at the unredacted version of C1(3), for the purposes of adding context, to which we agreed.

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One Response to Findings on privilege and admissibility of contested documents

  1. Pingback: 29 November 2011 Press Release: Welsh Government and AVOW | AVOW and the Employment Tribunal

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