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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.

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Are documents prepared by HR Consultants “privileged”?

No, says the High Court in Water Lilly & Co Ltd –v- Mackay (1) DMW Developments Ltd [2012] EWHC 649 (TCC). The claimant in this case applied for an order against the second Defendant (D) to disclose, correspondence and relevant documentation, created by D’s retained claims consultancy (K).

D argued that the documentation requested attained legal professional or legal advice privilege as the parties working for the claims consultancy were qualified barristers and solicitors. However the court held that this was not enough.

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