It is relatively rare to have a decision from the Scottish courts on the issue of privilege.

Why?

One reason is that disclosure of documents is a different beast in Scotland – often music to the ears of many. It is a system of recovery rather than discovery. It is not automatic. Seeking recovery of documents means identifying specific documents or classes of documents and justifying your request. As a result, disclosure tends to be more restricted in Scotland, and issues of privilege which typically arise in that context come up less frequently.

A decision last Friday from the Inner House of the Court of Session, Scotland’s civil appeal court, is therefore of particular interest.

Facts

It involves a Mr Chakraborty, who was employed by the University of Dundee as a post doctoral research assistant. In November 2021, he raised a grievance against the Professor who he was recruited to work with, alleging racial abuse, harassment, bullying and discrimination. The University appointed a different Professor to investigate and report. Mr Chakraborty also lodged a claim with the Employment Tribunal for unfair and/or constructive dismissal and racial discrimination.

The investigation chair issued her report to the University in February 2022. In March and June 2022, the report was “amended” by the University’s lawyers. The final version (which remained dated February) contained an annotation that the report had been “amended and reissued on 23.06.2022 following independent legal advice”.  At the ET hearing in July, Mr Chakraborty expressed his suspicions that the original version contained findings which the University had altered to help the Professor he worked for. He argued the original report was therefore relevant to his discrimination claim, and he sought its recovery. The University opposed this on the basis that a comparison of the original report with the final version would reveal the legal advice they had been given. They claimed legal advice privilege over the original. Both the ET and the EAT rejected the University’s argument.

Decision

The appeal by the University was refused.

Legal advice given to the University would have been privileged in the usual way, as a confidential professional communication between solicitor and client (Three Rivers No 6).

However, the relevant legal advice had been given after the original report had been issued. Therefore it could not have been reflected in the original report and the original report could not be privileged.

The question was then whether the original report became confidential when the later version was issued. The University argued a comparison of the differences would allow someone to infer what the legal advice had been. However, the court recognised a distinction between something concrete in the document that would infer what legal advice had been given, as opposed to something that could only be a basis for speculation about whether, and what, legal advice had been given (Re Edwardian Group).

In addition, it was the University who themselves revealed the existence of such advice as having influenced the content of the final version, which was the reason for seeking to understand what the advice might have been in the first place.

Waiver of privilege in the underlying legal advice was also established, either when the advice obtained by the University was revealed to the chair in “what was supposed to be” an impartial investigation, and/or once it became known that the original report had been altered as a result of that advice.

Points to note

1. If legal advice is being given in the context of an internal investigation, safeguards need to be put in place – and at the outset - to preserve privilege in that advice. This would include restricting the dissemination of that advice, and avoiding written communications discussing or referring to the advice.
2. Internal communications in the context of an investigation will not typically be privileged - and would therefore be discloseable - unless a lawyer is involved and driving the communications.
3. Confidentiality is the essence of privilege.  You cannot claim privilege over advice that is no longer confidential.  Disclosing legal advice to a third party will normally mean that privilege cannot be asserted. It may be possible to put in place certain safeguards to avoid waiver of privilege, although this approach has no guarantee of success.
4. Privilege must exist at the time the document is created. You cannot retrospectively assert privilege over a document that wasn’t privileged in the first place.
5. Know what process you have created. The grievance procedure purported be an independent process, but the University seemingly treated it like an internal investigation. The court’s comments suggest they had a similar concern. Why was the University provided with an original version of the report but not the complainant? Why was the University given an opportunity to input on and ultimately influence the report without any apparent transparency in this process? Be clear about the purpose and remit of an investigation, and what rights each party has in the process.

We regularly advise clients on all aspects of privilege including in the context of investigations. Please speak to your usual contact or Joanna Fulton.

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