Legal professional privilege did not attach retrospectively to an original investigation report that was subsequently revised following legal advice (University of Dundee v Chakraborty)

An original document, which was not covered by legal professional privilege at its creation, would not, as a result of revisions being made as a result of legal advice, retrospectively become privileged even if an incidental consequence of its disclosure and comparison with the disclosed final version might be to allow inferences to be drawn about why the two versions were different, according to the Employment Appeal Tribunal (EAT).

University of Dundee v Chakraborty [2022] EAT 150

 What are the practical implications of this case?

The outcome of this appeal is unsurprising because, while not expressly stating to do so, it follows the High Court authority of Jet2.Com where Morris J found that legal privilege does not apply to ‘raw materials’ which were not created for the purpose of obtaining legal advice, even when lawyers are subsequently consulted on those documents.

It follows from this judgment that employers should think carefully about whether or not they are likely to involve lawyers at some stage in relation to internal investigations and, if so, to involve them from the start to ensure that legal professional privilege applies wherever desirable and possible. This judgment demonstrates that a half and half approach of taking on board legal advice at a later stage, when the investigation report has already been drafted, will not allow legal professional privilege to be claimed over existing documents and could lead to some awkward inferences being drawn about the changes made to the original documents after receipt of the legal advice.

Court details

• Court: Employment Appeal Tribunal
• Judge: The Honourable Lord Fairley
• Date: 23 September 2022

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