Although all communication between clients and their lawyers is covered by legal privilege, the EAT held in the University of Dundee v Chakraborty that an original report drafted by a non-legal professional was not covered by privilege. Nor could it attract privilege retrospectively once a version that had been amended by solicitors had been lodged with the tribunal.
Mr Chakraborty started work at the university in early 2013 as a post-doctoral research assistant. In November 2021, he raised a grievance against his line manager under the university’s dignity at work policy, which included allegations of harassment, bullying and racial abuse, among other things.
The university carried out an investigation headed up by a senior member of staff, Professor Nic Daeid, who reported on 28 February 2022. Before sharing the report, the university then asked external solicitors to review it. They made a number of amendments which were approved by Professor Nic Daeid on 23 June at a meeting with the university’s in-house legal team. A further amendment was then made to the report by the external legal advisors and the professor herself on the same date.
In the interim, Mr Chakraborty had lodged a tribunal claim on 21 December 2021. The revised version of the report was added to the joint bundle in advance of the hearing which was scheduled to start on 4 July 2022. He was sent the final (as opposed to the original) version a week beforehand.
On the first day of the hearing, he asked the tribunal to make a documents order requiring the university to produce the original unamended version. The university resisted, arguing that the original version was protected by legal advice privilege and that if it made the unamended version available to him, Mr Chakraborty would be able to compare the two and make inferences about the legal advice that it had received.
The tribunal rejected the university’s argument and ordered it to produce the unamended report.
The university appealed. Whilst acknowledging that the original version was not privileged at the point when it was created by Professor Nic Daeid, the university argued that it had retrospectively acquired legal advice and litigation privilege once the amended version had been lodged with the tribunal.
The EAT held that any advice given by solicitors about the original document and any amended version of it created for the purpose of the litigation would plainly be privileged. However, the original unamended document was not privileged (as the university itself had acknowledged), but nor could it become privileged retrospectively.
The EAT was also at a loss to understand how the university thought it would be possible to infer what legal advice was given to it by comparing the 28 February document with the version that was ultimately lodged with the tribunal, not least because Professor Nic Daeid had made amendments of her own to it around the same time. It was not, therefore, clear how Mr Chakraborty would be able to distinguish between changes to the report by different people. Since there was no basis for the proposition put forward by the university, the appeal was dismissed.
The EAT ordered that the case should return to the tribunal and a new date fixed for compliance with the documents order.