University of Dundee v Prasun Chakraborty

An unprivileged document does not retrospectively acquire legal advice or litigation privilege merely because lawyers later advise on it, an amended version is prepared, and comparison of the versions may permit inferences about that advice. Privilege protects the advice and a later document which evidences, reproduces or is created for the relevant privileged purpose. It does not extend backwards to the original document.

Litigation privilege depends on the document having come into existence for the dominant purpose of pending or contemplated litigation. The burden of establishing privilege rests on the party asserting it.

The claimant, an employee of the University, raised a grievance alleging, among other matters, discrimination, harassment and racial abuse. An academic investigator produced a report on 28 February 2022. The University later obtained external legal advice, after which the report was amended and the final version was disclosed for the Employment Tribunal hearing.

The final report stated that it had been amended following legal advice. The claimant sought production of the original report under Rule 31 of the Employment Tribunal Rules. The Employment Judge made the order on 4 July 2022.

The University appealed, contending that the original report retrospectively became protected by legal advice privilege or litigation privilege because comparison with the disclosed version could reveal the tenor of the legal advice.

1. Appeal refused. The original report was not privileged when created. It was an investigation of a workplace grievance, not a communication for legal advice and not a document created in contemplation of litigation.

2. Neither branch of legal professional privilege retrospectively attached to the original report because lawyers subsequently advised on it and an amended version was prepared. The advice itself, and any amended document created for the purpose of litigation, could be privileged. That did not alter the status of the pre-existing original document.

3. Lyell v Kennedy (No 3) did not assist the University. It concerned documents created or selected by a solicitor for the defence of litigation and privileged when they came into existence. It did not extend privilege to the wider body of pre-existing material from which the solicitor had selected documents. Nor did the authorities concerning later documents from which advice might be inferred support retrospective privilege for an original unprivileged document.

4. In any event, comparison of the two reports could not reliably disclose the legal advice. The investigator had made amendments of her own, and the University had not explained how changes attributable to legal advice could be separated from her independent changes.

5. The Rule 31 order remained in force. The Employment Tribunal was to fix a new date for compliance.

• Employment Appeal Tribunal: appeal dismissed; the order for production of the original report was maintained.

• Employment Tribunal: Employment Judge McFatridge made a Rule 31 case-management order on 4 July 2022 requiring production of the original unamended report.