Investigation report did not become privileged retrospectively when amended version was disclosed
The Scottish Court of Session (Inner House) has upheld an order for disclosure of an original investigation report in University of Dundee v Chakraborty, rejecting arguments that it was protected by legal professional privilege.
The claimant had been employed by the University since January 2013; in November 2021 he raised a grievance against his line manager which included allegations of harassment, bullying, discrimination and racial abuse. An independent member of academic staff (ND) was appointed to investigate under the University's Dignity at Work and Study policy. ND produced her report on 28 February 2022, by which time the claimant had already brought race discrimination and harassment claims in the employment tribunal. On 1 March, the University asked external legal advisers to review ND's report and some amendments were made which were approved by ND on 23 June. ND then made some further amendments of her own and the revised report was disclosed to the claimant and added to the tribunal bundle. The claimant applied for disclosure of the original, unamended report. The University resisted the application on the ground that the original report was protected by legal advice privilege. The tribunal made the disclosure order, and the University appealed.
The EAT dismissed the appeal and the Scottish Court of Session also refused the appeal. It held that, while confidentiality will generally extend to material which would allow the reader to work out what legal advice had been given, the original investigation report did not do that. The Court also held that privilege had been waived by the University. It held that privilege was probably abandoned when the advice, which was obtained by the University, was revealed to the investigator. If not then, it was certainly lost once it became known, as the footnote in the report stated that the original report had been altered as a result of the advice. The Court concluded that it must have been obvious to the University, when it revealed the content of the final version of the report, that the basis of that report would have to be scrutinised by the employment tribunal.
Take note: This case is a reminder that legal advice privilege will only relate to confidential communications between a legal adviser and a client for the dominant purpose of giving or receiving legal advice. Any amendments to a document (which is subsequently disclosed) following the obtaining of legal advice will not mean that the original unamended document is subject to privilege. In this case there was no litigation privilege either as the original report had not been created in contemplation of litigation, but as part of an investigative response to a grievance under an internal policy.