In the appeal case of University Of Dundee v Mr Prasun Chakraborty the respondent was a Post-Doctoral Research Assistant with the appellants. On 30 November 2021, he raised a grievance alleging racial abuse, harassment, bullying and discrimination by his line manager. The appellants appointed an independent member of academic staff to investigate and produce a report.
Prior to the outcome of the investigation, the respondent raised a claim in the Employment Tribunal in respect of the matters raised in the grievance. He has since resigned his position from the University. The original version of the report was issued, internally, on 28 February 2022. It underwent various amendments based on external and in-house legal advice. The final version of the report was issued on 23 June 2022.
The respondent first had sight of the report when the appellants lodged it within their inventory of productions before the ET. The first page of the final version noted: “Note: This report was amended and reissued on 23.06.22 following independent legal advice”.
The respondent sought a Case Management Order under the ET’s procedure rules for disclosure of the original version of the report. He raised concerns that the original version may contain findings that had been altered to protect his line manager and the appellants. The appellants resisted the order arguing that the original report was subject to legal advice privilege.
On 4 July 2022, the ET made the order. The appellants appealed to the Employment Appeal Tribunal. They maintained that the original report was privileged. Although it was not privileged when created, it acquired privileged when the final version was lodged. A comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice received by the University.
On 23 September 2022, the EAT refused the appeal. The terms of any legal advice given, and the amended version of the original document created for the purpose of the litigation were plainly privileged, but the original un-amended document was not. The appellants accepted that the original report was not privileged at creation. It could not retrospectively acquire privilege. On no view was the report a communication between a client and a legal advisor for the purposes of the giving or receiving of legal advice.
Even if an incidental consequence of disclosure of the original report was that, upon comparison with the final version, inferences could be drawn about why the two versions were different, it did not follow that the former becomes privileged. In any event, the investigator made her own amendments. It had not been explained how her amendments could be distinguished from those made following upon legal advice.
The EAT refused leave to appeal to the Court of Session. However, on 28 March 2023, the Court of Session granted leave. The Court of Session held that the original version was not privileged and so must be disclosed. The fact that comparison of the original and amended versions of the document might allow someone to speculate as to the substance of the legal advice did not mean the original version of the document was privileged.
The Court of Session also concluded that any privilege in the document had been waived by the respondent by revealing the legal advice to the investigator and/or by stating on the amended report that it had been altered as a result of advice.
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