Legal Professional Privilege – University of Dundee v Chakraborty
The Scottish court of session had to consider the tricky question of whether a document was protected by legal professional privilege. Legal privilege protects certain documents from disclosure if they are part and parcel of the advice given by a lawyer to his client and/or documents coming into existence for the dominant purpose of litigation.
The claimant in this case alleged discrimination on the grounds of race. The university appointed a staff member to investigate the matter and, when the report was produced, sent the report to independent legal advisers for approval.
The lawyers gave their advice and the report was updated and marked ‘amended and reissued on 23.06.22 following independent legal advice’. The claimant asked the tribunal to order the university to disclose the original investigation report. The university argued that the original report, whilst not privileged at the point it was created (because it was written by a staff member, not a lawyer), ‘acquired’ legal privilege once it was updated following the provision of legal advice.
The claimant succeeded, and succeeded again on appeal. The court of session quoted prior authority to the effect that a document’s ‘status ought not to depend upon the use subsequently made of it….’ – it should be possible to establish whether or not it was privileged at the date of its creation.
This is an important decision for Claimants. Many employers think that an internal investigation report (or similar) can be exempted from the obligations of disclosure in court and tribunal proceedings by having a lawyer ‘rubber stamp’ it. Not so, says the court of session.
Author: Paul Scholey, Employment Consultant
