Slender scope of authorized information privilege highlighted by Chakraborty circumstance

The Scottish Court of Session has ruled that the original model of an investigation report did not retrospectively become privileged immediately after it was amended by the employer’s authorized advisors. The Court has ordered that the doc in problem – a draft grievance investigation report – be disclosed to an worker notwithstanding the point that the mother nature of the authorized advice offered would then be quite obvious. The scenario serves as a handy reminder to businesses of the have to have to be thorough when dealing with drafts of inner disciplinary and grievance investigation studies. We’ll contemplate that.

At the centre of the scenario is the rule on legal advice privilege, made to give purchasers comfort figuring out that dealings with their legal professionals will be dealt with in self confidence. Nevertheless, reliance on the rule is dependent on 3 standards becoming happy, particularly: (1) that the interaction or doc is confidential (2) the communication is concerning a client and their law firm and (3) the dominant reason of the document when it was developed was to give or obtain legal tips.

This is the situation of Chakraborty v College of Dundee. Mr Prasun Chakraborty lifted a grievance which the College duly investigated. When the impartial investigator submitted their draft report to the college it was reviewed and edited by the university’s lawyers in advance of getting handed about to the work tribunal as portion of the disclosure procedure. The edited edition contained a footnote earning distinct that the report had been amended subsequent “independent authorized advice”. Chakraborty then requested disclosure of the investigator’s first draft. Legal professionals performing for the college refused to comply with the request, telling the tribunal that, if the initial document was disclosed, by comparing the two versions it would be noticeable what authorized assistance the college had been specified. They stated that, because of this, the first unedited variation of the report was, retrospectively, confidential and as a result secured by lawful privilege.

As litigator Bruce Craig clarifies in his Out-Regulation write-up on this, the Courtroom rejected the university’s argument ruling that privilege are unable to be connected to a doc retrospectively. So, if a document is not privileged at the time it is designed, it will not later on turn into privileged owing to a later transform in situations. As Craig points out, there had previously been some doubt the application of that rule in Scotland but, helpfully, this circumstance clears it up and we have affirmation that we are broadly aligned north and south of the border.

So, what can we take from this scenario? What are the lesson for companies? Before I caught up with Stuart Neilson who joined me by movie-connection from Glasgow:

Stuart Neilson: “I think the key problem – and this comes back to this entire stage of to what extent do you get security underneath the doctrine of authorized privilege when you’re carrying out an investigation and you are planning an investigation report – and I imagine the critical point is always for companies to bear in head that, usually, if it’s an investigation into a thing like bullying and harassment taking spot in the office, a factual investigation into that, it’s not likely that’s going to appeal to lawful privilege unless it was remaining done purely for the intent of acquiring legal guidance which most conditions it truly is not, it’s becoming done for the goal of seeking to find out what transpired. So, I consider which is the sort of essential issue to bear in head, then there are a large amount of distinct nuances in the circumstance as very well which will no question appear on to.”

Joe Glavina: “In her Out-Legislation write-up Sarah Munro says how it’s frequent to have several drafts of grievance or disciplinary studies, and it’s typical to seek legal advice just before finalising the report. She claims it’s thus essential for companies to seek out assistance at an early stage. Is that ideal?”

Stuart Neilson: “It unquestionably is correct. It is significant because the place that the situation made was that you have to decide no matter whether or not something is legally presented at the point in time when it is designed. So, at the stage in time, when it is established, what is the intent of the development of that report? If it has been created with a view to getting authorized guidance then that authorized assistance will be privileged, but if it is really not, if it has been produced for the intent of just investigating and making an attempt to decide the information and instances of what happened and then, at a later on date, you check out and get authorized guidance, then that report is not going to be legally privileged.”

Joe Glavina: “Do you imagine there is a place in this article for HR, Stuart, in terms of who you share facts with internally when you have questioned for lawful advice and it will come through?”

Stuart Neilson: “Yes, I assume there is a typical level there. Just one of the other issues that arrived up in the situation is this full concern of waiver of lawful information and it is doable to waive the lawful guidance and give up your privilege in relation to it. So it is essential, I think, that in an organisation in which authorized information has been provided into that organisation, that that is furnished to a tiny and discreet group of people and that it should not truly be shared commonly about the organisation if that can be prevented, and if you do need to share it all-around the organisation a bit extra, it can be greater to go back again to the lawyers and get them to do that instantly with particular persons.”

Joe Glavina: “Another position that’s lifted in the HR push is whether or not it is safer all round to for customers to get their lawful advice more than the phone relatively than in writing. What do you believe about that?”

Stuart Neilson: “I’m not positive I’d say you would have to go that much. Whether or not it is really telephone or email, I feel the far more significant stage is that you continue to keep it to a little, restricted, team of men and women who are in search of that guidance, that it really is extremely very clear if you are giving tips, for us as attorneys if we’re supplying tips we must be documenting that as lawfully privileged, and if the shopper is achieving out to get assistance they ought to almost certainly be documenting it as for the function of getting lawful tips. Certainly, if you might be receiving information about the mobile phone then it does lower the chance of documents flying close to the organisation that you could inadvertently be disclosing to the mistaken folks, but I think it is really extra about just having a bit much more target close to who’s finding the suggestions, what is the purpose of acquiring that information for.”

Joe Glavina: “Anything else, Stuart? A message for consumers?”

Stuart Neilson: “Yes, I assume, for me, the overriding detail, and the most critical detail for purchasers to bear in head, is that legal privilege is a little something which will connect to a doc at the issue in time when it can be designed, presented that when it’s established the intent of developing it was for having legal information. A person of the issues we see pretty generally is consumers will duplicate us in as lawyers to communications are sending internally in the mistaken belief that that will somehow give it some kind of exclusive protection. It does not. The communication must be designed for the function of receiving that authorized suggestions, created for the intent of sending to us as attorneys to get suggestions. So, it is quite a narrow scope of security and it is just vital for consumers to be informed of how narrow that scope of defense is.”

If you would like further more evaluation of this case and how the Court arrived at its selection, then it’s value looking at the Out-Law posting on this by Bruce Craig and Sarah Munro. Which is ‘Privilege circumstance assists clarify limit of lawful confidentiality in Scots law’ and we’ve put a backlink to it in the transcript of this programme for you.

Back links

– Hyperlink to Out-Regulation article: ‘Privilege scenario allows clarify limit of lawful confidentiality in Scots law’

Link to judgment: College of Dundee v Chakraborty

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