Trentside Manor Care Limited & Ors v M Raphael

A party asserting privilege cannot be required to disclose the disputed documents to its opponent’s legal representatives before the privilege claim has been determined. Such disclosure would defeat the asserted privilege and may put the opponent’s lawyers in an irreconcilable conflict.

Litigation privilege requires both reasonably contemplated litigation and a document created for its dominant purpose. Taking employment-law advice to minimise litigation risk does not, without more, establish either requirement. Legal advice privilege protects legal advice given by qualified lawyers. On the evidence in this case, general management and supervision of non-qualified HR advisers within a department headed largely by solicitors did not make their advice that of qualified lawyers.

The claimant, a care-home manager, was dismissed after a disciplinary process. She alleged that the stated conduct reason was a pretext connected with her flexible-working request, disability and age. Her claims included unfair dismissal and discrimination.

She sought disclosure of communications between the respondents and Citation Ltd, their HR and employment-law advisers, from the flexible-working request to her dismissal. The respondents claimed litigation privilege and legal advice privilege. Citation was not a firm of solicitors, and the advisers who gave the relevant advice were not qualified lawyers.

The Employment Tribunal first ordered restricted disclosure to the claimant’s solicitors and counsel. It later required disclosure to the claimant of advice before 30 June 2018, while holding later advice privileged. The respondents brought two related appeals challenging those rulings.

1. The first appeal was allowed. The Tribunal’s order requiring the respondents to provide the disputed documents to the claimant’s solicitors and counsel before resolving the privilege issue was wrong in principle. If privilege applied, it protected the respondents from compulsory disclosure to anyone, including the claimant’s representatives. The restriction preventing those representatives from showing the material to the claimant did not cure that defect. Reading the material would also create a serious risk of an immediate and irreconcilable conflict for the claimant’s lawyers.

2. The later order for documents to be supplied only to the Tribunal was not challenged. The EAT nevertheless stated that judicial inspection of documents said to be privileged should be a last resort. The usual starting point is a sworn statement from the party asserting privilege, giving as much non-privileged information as possible about the documents and the basis of the claim. Further evidence, clarification, submissions and, only where appropriate, private inspection may follow.

3. The second appeal was dismissed. Litigation privilege required documents to have been created for the dominant purpose of litigation which was reasonably in prospect. Before the end of June 2018, the Tribunal was entitled to find that advice about the flexible-working and reasonable-adjustments issues was prudent employment advice, not advice sought for the dominant purpose of reasonably contemplated litigation. A wish to avoid litigation, or to be able to defend it if it later arose, was insufficient. The later disciplinary process did not require a contrary conclusion about the earlier period.

4. The Tribunal was also entitled to reject legal advice privilege for the earlier advice. Legal advice privilege applies to communications with qualified lawyers for the purpose of obtaining or giving legal advice in a relevant legal context. The respondents’ actual advisers were not qualified lawyers. The evidence gave only a general account of supervision in Citation’s HR and Employment Law department. It did not establish that a qualified lawyer managed the relevant adviser or had knowledge of, or input into, the particular advice. The Tribunal could therefore regard the advice as akin to internal HR advice.

5. A new argument based on SRA standards could not be advanced on appeal. It relied on material and a distinct legal contention that could have been put before the Tribunal, and no exceptional reason justified doing so. The December 2020 disclosure decision accordingly stood.

• Employment Appeal Tribunal: The respondents succeeded in their appeal against the June 2020 restricted-disclosure order, but failed in their appeal against the December 2020 decision requiring disclosure of advice before 30 June 2018.
• Employment Tribunal: The Tribunal held that advice from 30 June 2018 onwards attracted litigation privilege, but that earlier advice attracted neither litigation privilege nor legal advice privilege. The underlying merits claims remained to be determined.