Fadairo v Suit Supply UK Lime Street Ltd

An Employment Tribunal may prevent reliance on an inadvertently disclosed document protected by legal advice privilege where the High Court would restrain its use in equity.

The distinction between inadvertent disclosure during litigation and disclosure before litigation is material. In the latter case, the principles in Goddard v Nationwide Building Society apply. The equitable discretion is not a general power to balance confidentiality and privilege against the perceived interest in establishing the truth. It remains available on recognised equitable grounds, such as inordinate delay or clean hands, but legal advice privilege is not generally displaced because the information is material to the proceedings.

The Claimant appealed from a case management decision of the Employment Tribunal at London Central, sent to the parties on 30 October 2012. The Tribunal held that an email containing legal advice, which had been inadvertently sent to the Claimant before he commenced proceedings, remained confidential and privileged and could not be relied upon.

The appeal challenged the findings concerning inadvertent disclosure and confidentiality. It also raised whether the Tribunal had a discretion to balance the interests of privilege and confidentiality against the interest in establishing the truth in the litigation.

1. Appeal dismissed. The Employment Tribunal was entitled to find, on the evidence before it, that disclosure of the email had been inadvertent. The Claimant had not cross-examined the relevant witness, adduced contrary evidence or advanced a perversity challenge. It was therefore too late to reopen that factual issue on appeal.
2. The email remained confidential as against the Claimant. The involvement of ADP did not establish loss of confidentiality; it was reasonable to infer that ADP was working for the Respondent and would retain confidential employee information. The striking-through of part of the email supported, rather than undermined, the conclusion that the material was not intended to be communicated.
3. The case concerned inadvertent disclosure to a person before litigation, rather than mistaken disclosure in the course of litigation. The latter may raise waiver issues, whereas the present case was governed by the equitable principles identified in Goddard v Nationwide Building Society [1987] QB 670.
4. The equitable jurisdiction to restrain use of confidential and privileged material is not broad enough to require a general balancing exercise between privilege and the interest in establishing the truth. Recognised equitable considerations, including inordinate delay and possibly the clean hands doctrine, may affect relief, but the materiality of the information and the general interests of justice do not themselves justify permitting its use.
5. The Employment Tribunal was therefore right to prohibit reliance on the email and associated communications under rule 10 of the Employment Tribunals Rules of Procedure 2004.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s case management decision dismissed.
• Employment Tribunal, London Central: decision sent on 30 October 2012; the email and associated communications were held privileged and the Claimant was prohibited from relying on them.