UK: UK court finds original grievance report was not privileged

Authors:

• Graham Mitchell – graham.mitchell@clydeco.com
• Corinna Harris – corinna.harris@clydeco.com

Mr Chakraborty, a Post-doctoral Research Assistant to a Professor at the University of Dundee, raised a grievance against the Professor under the University’s Dignity at Work policy, alleging racial abuse, harassment, bullying and discrimination. An investigation was subsequently carried out. The final version of the investigation report incorporated changes suggested by external legal advisers and had an annotation noting that the report was amended following legal advice. In the tribunal proceedings, Mr Chakraborty sought disclosure of the original version of the report. The University maintained that the report acquired legal advice privilege when it was amended because comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice it had received.

The issue in this case was whether the University’s own act, of issuing the final version of the report containing a footnote revealing that it had been amended following “independent legal advice”, made the original report confidential. Legal advice privilege applies to confidential communications which:

• pass between a client and the client’s lawyer, and
• have come into existence for the dominant purpose of giving or receiving legal advice about what should sensibly be done in the relevant legal context.

The Court of Session concluded that the original report was not privileged and must be disclosed. It found that any privilege in the report was probably waived when the University revealed the legal advice to the investigator – but in any event it was waived once it became known that the report had been amended following legal advice.

Key Action Points for Human Resources and In-house Counsel

This case is a useful reminder that all draft reports and communications produced during the course of an internal procedure will likely be disclosable as evidence in any subsequent tribunal proceedings. It is therefore important to keep careful control over draft versions of grievance investigation reports. It is advisable to have a single document which is overwritten when amended.

The University of Dundee v Chakraborty