Scotthorne v Four Seasons Conservatories (UK) Ltd

Although claimants can ask for disclosure of certain documents when bringing a claim, courts will refuse the request if the documents are protected by legal advice privilege (applicable only to lawyers) and/or litigation privilege. In Scotthorne v Four Seasons Conservatories (UK) Ltd, the Employment Appeal Tribunal (EAT) said that even if the advice was given by non-lawyers it would still be covered by litigation privilege if given for the dominant purpose of litigation.

Basic facts

After being dismissed on 6 May 2009, Mr Scotthorne claimed unfair dismissal, arguing that his employer had wanted to get rid of him for financial reasons for some time, and had dreamt up the idea of gross misconduct (arising from an altercation on 21 April) to justify the decision.

He applied to the tribunal for an order requiring his former employer to disclose - and allow him to inspect - various files that might help to prove his case, The documents he sought contained advice from the company’s non legal advisors, RBS Mentor.

Tribunal decision

The tribunal refused to order disclosure of the documents, saying that although they were relevant to the proceedings they were “protected by legal advice privilege, but not litigation privilege insofar [as] the documents that pre-date the disciplinary proceedings that led to the Claimant's dismissal are concerned."

Mr Scotthorne appealed that decision, on the basis that the documents could not attract legal advice privilege as the advisors were not lawyers.

EAT decision

The EAT said that the correct test when deciding whether documents should be disclosed is firstly to ask whether the documents are necessary, “although the starting point is relevance” ( see CIBC v Beck [2010] IRLR 740 ). On that basis, it held that material prior to 21 April 2009 was “neither relevant nor necessary”. If the documents are necessary the question of whether litigation or legal privilege applies can then be considered.

In this case following the altercation on 21 April 2009, the company contacted RBS Mentor for advice as required by their insurance policy The EAT said that at that point, there was legal litigation privilege but as only one member of the RBS Mentor team was a qualified lawyer, it accepted that it would be “fraught with difficulty” to claim “legal advice privilege”.

Therefore, the EAT was satisfied that the real issue in this case was litigation privilege as that was the most likely reason for the company to consult RBS Mentor when it did or at least to find out how to handle matters which could well lead to litigation.

It concluded, therefore, that that as from 21 April 2009, litigation was the dominant purpose of the approach by the company to RBS Mentor. “The advice given by RBS Mentor to its insured would correspond to it both seeking to avoid litigation and assisting the [company] should litigation occur. In that case it does not matter that some of those giving advice were not legally qualified. It was given for the dominant purpose of litigation which could well ensue in the light of what the [company] told RBS Mentor about the altercation with [Mr Scotthorne]”.