Moving Brands Limited & Ors v Matheus Heinl & Anor

Legal advice privilege may extend to a communication made through an agent, but only where the agent is no more than a means of communication between client and lawyer. Whether that condition is met is a factual question. The client need not be copied into the communication.

The party asserting privilege bears the burden of establishing it. A tribunal may seek further evidence, but need not do so where no party applies and the material before it permits a decision.

A disclosure order must preserve claims that a document reveals privileged legal advice, and must allow both legal advice privilege and litigation privilege where either may apply. Tribunals should consider relevance before ordering disclosure; however, a relevance point not raised below is not automatically available on appeal.

The claimants brought Employment Tribunal proceedings arising from their dismissals. The first claimant alleged protected disclosures, whistleblowing detriments, automatic unfair dismissal and victimisation. The second claimant alleged unfair dismissal.

During the hearing, the claimants sought specific disclosure of communications involving the respondents’ solicitor and two individuals said to be acting as agents for a shareholder. The Employment Tribunal ordered disclosure in defined categories and required further evidence concerning privilege.

The respondents appealed the case-management order. They contended that it wrongly denied legal advice privilege, failed to obtain sufficient evidence, omitted necessary exceptions for privileged material, and ordered disclosure without a relevance qualification.

The central issues were the scope of legal advice privilege for communications through alleged agents and the proper formulation of the disclosure order.

1. Appeal allowed in part. Grounds 1, 2 and 5 failed. Grounds 3 and 4 succeeded. The Employment Tribunal’s case-management order was to be varied; remittal was unnecessary because the only possible outcome was correction of the identified omissions.

2. The tribunal had applied the correct agency test. For legal advice privilege, a non-client intermediary must be no more than a means of communication between client and solicitor. It had permissibly found, on the stated facts, that the two alleged agents exercised independent judgment and decision-making functions. They were therefore more than mere agents in the relevant category of communications. The tribunal had not imposed a legal requirement that the shareholder be copied into an email. His absence explained why agency had to be established; it was not a separate condition of privilege.

3. The party asserting privilege bore the burden of proving it. Although the tribunal had power to require further evidence, it was not obliged to initiate that process where neither party sought it. It could decide the agency issue on the evidence provided.

4. The order was defective because it did not preserve a claim that a document, though not itself sent for the dominant purpose of seeking or giving advice, disclosed or was likely to disclose the nature or content of privileged advice. The corrected order could not be confined to specified documents. The court also rejected a temporal restriction which would limit that protection to disclosure of earlier privileged communications.

5. The order was separately defective because, for post-17 February communications, it permitted only litigation privilege to be asserted. Legal advice privilege might also apply and had to remain available if litigation privilege were challenged.

6. Tribunals should always consider relevance before ordering disclosure, consistently with Howes. But relevance had been assumed below, not overlooked. Howes did not require the Appeal Tribunal to entertain every relevance point raised for the first time on appeal. The respondents could instead seek a variation if particular documents proved irrelevant.

• Employment Appeal Tribunal: Allowed the respondents’ appeal in part and varied the Employment Tribunal’s disclosure order.
• Employment Tribunal: Made a case-management order requiring specified disclosure and directions concerning claims to legal advice privilege and litigation privilege.