HR professionals need to know which communications are disclosable and which are protected by privilege when litigation is on the horizon
It is well-known that privilege entitles a party to withhold evidence from production to another party or the court, and that there are various forms of privilege.
Legal professional privilege, with which two recent High Court decisions are concerned, encompasses two strands:
Legal advice privilege: this applies to confidential communications that pass between a client and the client's lawyer, and which have come into existence for the purpose of giving or receiving legal advice.
Litigation privilege: this can apply to communications between a client or the client's lawyer and a third party, but can only apply when litigation is existing, pending or contemplated, and only if the communication is made for the dominant purpose of litigation.
Both The RBS Rights Issue Litigation and Astex Therapeutics Ltd v AstraZeneca reaffirmed the position that legal advice privilege is strictly confined to communications between a lawyer and his client for the purpose of giving or receiving legal advice. Only individuals authorised to seek and receive legal advice are considered as ‘clients’ for the purposes of legal advice privilege and so the protection is limited to communications between those individuals and their lawyers.
The issue, in both cases, centred around the proper classification of attendance notes made of conversations with employees and third parties where the author of those notes was the employer's lawyer who had been instructed to carry out investigation meetings on the employer's behalf. It was claimed that these documents were subject to legal advice privilege.
The meetings were considered by the court to be purely ‘fact finding’ meetings, with no suggestion being made in either case that the employees were giving information to the lawyers for the purposes of seeking or receiving legal advice. It is no surprise, therefore, that in both cases it was held that notes of conversations with employees were not covered by legal advice privilege and were fully disclosable.
It will seldom be the case that attendance notes made during investigation meetings with employees will be protected by privilege, even if those meetings are conducted by solicitors, so due care should be taken when notes are written during such meetings (and typed up afterwards). Our recommendation is to make notes as close to verbatim as possible. In complex cases, where budget permits, it is a good idea to have a professional transcript made of such meetings to avoid later arguments about what was said.
Finally, remember that legal advice privilege can only apply to communications that pass between a client and the client's lawyer. While HR consultants have become a popular means of obtaining employment advice in recent years, communications between a company and an HR consultant are not protected by legal advice privilege. In some ways, privilege is a devil's game – we just need to get a grasp on our strategy, play well and win.
Beth Hale is a senior associate, and Sarah Wilkinson an associate, in Stephenson Harwood's employment team