Scotthorne v. Four Seasons Conservatories (UK) Ltd

Disclosure in employment proceedings is governed by necessity, not relevance alone. Documents created from the point when litigation became the dominant purpose of obtaining advice may attract litigation privilege, including advice from non-lawyers. The privilege can cover advice intended both to avoid proceedings and to assist if proceedings follow. In deciding whether an employment tribunal case-management order should be disturbed, appellate intervention is rare where the order concerns judicial discretion. An appellate tribunal may nevertheless inspect disputed documents privately where necessary to determine disclosure and inspection issues.

The Claimant appealed against an Employment Judge’s case-management order refusing disclosure and inspection of documents concerning advice obtained by the Respondent from RBS Mentor. The Claimant alleged that the Respondent had engineered his dismissal for financial reasons. The Respondent contended that the documents were privileged.

The Employment Judge treated the documents as relevant but protected by legal advice privilege, while finding that litigation privilege did not arise for material predating the disciplinary proceedings. The appeal concerned relevance and necessity, legal advice privilege, litigation privilege, and the proper approach to disputed documents.

1. Appeal dismissed. The Employment Judge’s order was upheld, although the EAT reached the privilege conclusion for somewhat different reasons.
2. Disclosure and inspection are distinct issues under rule 10(2)(d). The relevant question is whether disclosure is necessary for the fair disposal of the proceedings, although relevance is the starting point. Material predating the alleged altercation on 21 April 2009 was neither relevant nor necessary on the pleaded case, which identified gross misconduct arising from that event as the reason for dismissal.
3. From 21 April 2009, the Respondent’s consultation with RBS Mentor was for the dominant purpose of litigation. In the context of the recently repealed Employment Act 2002 Regulations (2004) regime and the disciplinary events being considered, litigation was a realistic consequence of the alleged gross misconduct. Advice aimed at avoiding litigation and advice assisting the Respondent if litigation occurred could fall within litigation privilege.
4. Litigation privilege was not defeated because some members of the advisory team were not legally qualified. The advice was protected by its purpose, rather than by the professional status of every person providing it. Advice from the qualified solicitor was also capable of attracting legal advice privilege.
5. Interference with a case-management decision involving judicial discretion is rare. Having inspected the disputed material and considered the fuller evidence, the EAT reached the same operative conclusion as the Employment Judge.

• Employment Appeal Tribunal: upheld the Employment Judge’s order and dismissed the appeal.
• Employment Tribunal: Employment Judge Shore refused disclosure and inspection at a telephone case-management discussion on 28 January 2010.