Weatherford UK Ltd v Forbes

An Employment Tribunal may order recovery only within the statutory powers conferred on it. Under rule 10, an order for documents must be no wider than an order available to a sheriff, save that an Employment Tribunal may address a person elsewhere in Great Britain. It cannot require a UK subsidiary to obtain documents held abroad by its foreign parent or lawyers where possession or control is not established.

Legal professional privilege is substantive. The law governing privilege must take account of the foreign origin, ownership and purpose of documents. Litigation privilege is not confined to the particular proceedings later brought. Waiver requires clear conduct amounting to abandonment of the privilege; limited disclosure of information does not suffice.

The Claimant brought an unfair dismissal claim after resigning from employment with the Respondent. The Respondent’s parent company, incorporated in Bermuda and headquartered in the United States, had instructed United States lawyers to investigate alleged export-control violations and related payments.

The Employment Tribunal ordered the Respondent to obtain and disclose interview notes and investigation documents, and to provide further information. The documents were believed to be held in the United States by the parent company or its lawyers. The Respondent appealed on competence, choice of law, legal professional privilege, litigation privilege, waiver and the information orders.

1. The document order was incompetent. Rule 10(2) limited the Employment Judge to recovery which a sheriff could order. A sheriff could not order production of documents situated in the United States; the appropriate mechanism would be a letter of request. The Employment Tribunal’s wider statutory jurisdiction permitted orders against persons elsewhere in Great Britain, but did not enlarge the territorial scope of recovery beyond the sheriff’s powers.
2. An order could only be made against a person whom there was good reason to believe possessed or controlled the documents. The Respondent was a subsidiary of WIL. Mr Jacobson’s access to information, even if established, did not show that WIL had ceded control of the documents to the Respondent. Fairness or relevance could not cure want of competence.
3. Privilege was substantive rather than merely procedural. The documents were created by United States attorneys for a United States client in an investigation concerning potential liabilities in that jurisdiction. Even if the order had been competent, United States law applied and the documents were privileged and unrecoverable.
4. Under Scots law, the notes were also privileged. They recorded the attorneys’ thoughts and impressions, were prepared for WIL’s benefit and were intended for communication to WIL. The fact that the Claimant was interviewed, and was not the client, did not deprive the documents of privilege.
5. Litigation privilege was not restricted to the proceedings ultimately commenced. Documents prepared in contemplation of criminal or civil litigation could retain protection in subsequent proceedings. The documents were prepared in contemplation of both forms of litigation.
6. Waiver was not established. It required conduct clearly showing abandonment of the privilege, such as reliance on disclosure presenting a partial, incomplete or misleading account. The limited material disclosed by Mr Jacobson did not meet that standard, and fairness did not require waiver.
7. The information orders were also revoked. Part B1 had or would be dealt with informally; B2(a) attracted privilege and B2(b) had been answered. The appeal was upheld and all orders were revoked.

• Employment Appeal Tribunal: upheld the appeal and revoked the Employment Tribunal’s document-production and information orders in their entirety.
• Employment Tribunal sitting at Aberdeen: ordered production of specified documents and provision of additional information following a pre-hearing review; judgment registered on 13 June 2011.