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Is your legal advice privileged?

The issue of ‘Legal Advice Privilege’ (“LAP”) can be a complex matter to understand in terms of what correspondence is and is not subject to disclosure to the other side in employment litigation. However as you will see, choosing the correct legal advisors from the outset can stop the loss of a critical tactical advantage if matters escalate to an Employment Tribunal hearing.

LAP

The time tested definition of LAP amounts to conferring privilege on communications that are made in confidence between a solicitor and client or internal agent, for the giving or receiving of legal advice, and litigation need not be in contemplation.

Contrast this with Litigation Privilege (“LIP”) which confers privilege on communications or documents created between a solicitor, client and/or third party, where litigation has commenced or is in contemplation, where the dominant purpose of those communications or documents is for 1) obtaining advice in connection to the litigation and/or 2) assisting in the litigation itself. 

In most employment matters the identity of a client is straightforward, but can the same be said of the communications from the relevant advisor? LAP covers only communications intended to be with qualified lawyers and, controversially to some, not with other professionals.

There is no great surprise as to the individuals who come within the definition of ‘lawyer’; they include barristers, solicitors, and their agents, such as solicitor’s employees, a barrister’s clerk, trainees and pupils.

Where then does this leave communications to and from the trusty and cost effective HR consultancy to which many employers turn to prior to litigation being on the cards?

Although HR consultants are great for undertaking internal meetings and general advice, they are not internal advisors/agents or independent professional lawyers, and so the privilege does not extend to them. In the recent case of New Victoria Hospital v Ryan the court held there was no privilege, prior to the contemplation of litigation, in relation to communications between a hospital and HR consultants.

The court in qualifying this assessment stated “to extend the privilege to unqualified advisors such as personnel consultants is in our opinion unnecessary and undesirable”.

In practice then the distinction between a HR consultant giving legal advice prior to the contemplation of litigation, and after litigation has been contemplated or commenced, is an important one. In the former case, LAP will not apply, and applications for disclosure of the relevant communications ought to succeed.

Where litigation is in contemplation or is already under way, then the communications with the consultant will most likely be subject to litigation privilege and so generally not subject to standard disclosure.

Conclusion

Taking the above into account it speaks to reason that the retention of a fully qualified solicitor for advice prior to the contemplation of litigation is the safest option should matters later be subject to litigation. This ensures that all advice taken on the matter and so by extension the reason or motive for seeking such advice is kept from being disclosed detrimentally in open court.

If you are a business owner who is interested in looking at outsourcing their HR department, contact us now on 0113 350 4030 or at hello@scesolicitors.co.uk to find out how we can help!


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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