United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Stephen Jackson Solicitor Messrs Berry Smith Solicitors Haywood House Dumfries Place Cardiff CF 10 3GA
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


JUDGE A WAKEFIELD

1. This is an appeal by Punch Precisions Ltd against an Interlocutory Decision of an Employment Tribunal sitting at Cardiff, and given by a letter dated 6 June 2001, by which the Appellant's applications for disclosure and for permission to adduce in evidence at the Employment Tribunal certain documents under three heads, were refused.
2. In respect of each of the three documents or classes of documents to which the applications have related, the Appellant had claimed and now claims before us, that the present Respondent, Mr Du Vergier had waived privilege. In determining the appeals we have had written and oral submissions on behalf of the Appellant and written submissions on behalf of the Respondent.
3. The first document concerned is a "without prejudice" letter sent from the Respondent's solicitors, Messrs Leo Abse & Cohen to the Appellant's solicitors, Messrs Berry Smith, and dated 24 August 2000. The Appellant contends that the contents of the letter are inconsistent with, and contradict, the Respondent's claim that he was dismissed by the Appellant with effect from the beginning of July 2000, alternatively that he was constructively dismissed in consequence of being given no option but to resign in the situation in which the Appellant had then placed him. The "without prejudice" letter of 24 August 2000 was in the following terms:

"We refer to our open letter of today's date. In light of our view as to our client's notice entitlement, should you seek to terminate his employment then we believe he will be entitled to sums in excess of £60,000. However we can indicate that our client would be prepared to enter into a statutory Compromise Agreement in return for a payment of £50,000 of which we would anticipate that the first £30,000 would be exempt from tax pursuant to Sections 148 and 188 of the Income and Corporation Taxes Act 1988.

We look forward to hearing from you."

4. On the same day an open letter was also sent between the same parties, the relevant parts of which for the purposes of this appeal were as follows:

"For the avoidance of doubt our client wishes us to emphasise that he has not agreed or endorsed the structural decisions that you say that you have taken. Most particularly, our client does not accept your attempt to unilaterally vary his contract of employment which you will be aware constitutes a breach of his contract of employment. …….

We hope that these comments are of assistance to you in finalising what appears to be a decision that you have already made to terminate our client's present employment and to offer alternative employment as a tool room manager at a significantly lower salary."

5. In determining that the "without prejudice" letter should not be adduced in evidence, the letter from the Employment Tribunal containing its Decision said:

"…..it may be that there was an infelicitous turn of phrase in the letter of 24 August 2000 but this fell very far short of a dishonest intention. The true purpose and intention of the letter was to reach an accord and the tribunal does not consider protection should be removed from it."

It is argued before us that the test of dishonest intention was the wrong one to apply in the circumstances and that the true test is whether something in the nature of a dishonest case would be put forward if permission is not given to the Appellant to adduce the letter in evidence; see Independent Research Services Limited v Caterall [1993] ICR 1.

6. While we agree that the correct test is that set out in Caterall, we are also satisfied that the Employment Tribunal were right not to give permission for the letter to be adduced in evidence. The terms of the open letter of 24 August are such that it may be open to the Appellant to argue before the Tribunal that there is some inconsistency between the Respondent's case, as set out in the form ET1, and his solicitor's assertions on 24 August. Little, if anything, could be added to such arguments on the basis of the somewhat different wording of the "without prejudice" letter of the same date.
7. If it should transpire that the solicitors acting on behalf of the Respondent at the Employment Tribunal should give evidence, and seek to put some gloss or special meaning on the words of the open letter which is inconsistent with the terms of the "without prejudice" letter, no doubt the Employment Tribunal would give a sympathetic hearing to any application at that stage to adduce the "without prejudice" letter in evidence. On the basis of the sequence of events to date, we see no reason to allow the appeal as regards this first document.
8. The second document of which the Appellant has sought disclosure and which it wishes to adduce in evidence at the Employment Tribunal hearing, is an attendance note of the Respondent's solicitors dated 22 August 2000, and detailing the discussions which took place between the Respondent and his solicitors, apparently upon his first consultation with them, following a meeting he had had with the Appellant's General Manager on 18 August and at which the Respondent was given a letter of that date by the General Manager.
9. An extract of this attendance note, being the first two paragraphs and part of the third paragraph on the first page of what is, in fact, a four page attendance note, was put before the Employment Tribunal at a pre-trial review at which consideration was being given to the question of whether the Respondent, the then Applicant of course, had a prima facie case which should be allowed to proceed without conditions to a full hearing.
10. It is argued by the Appellant that by disclosing and so using the extract, the Respondent has waived privilege in relation to the whole of the attendance note. The application to the Employment Tribunal as regards this document was refused on the following grounds.

"……the part of the attendance note that was disclosed relates to an issue of fact, the rest of the attendance note contains advice from Messrs Leo Abse and Cohen to their client. What a solicitor is told and what a solicitor then advises are separate and distinct issues, and the assistance to the Tribunal rendered by the disclosure of an issue of fact should not disturb the protection of privilege, normally accorded to a record of advice."

11. By an Order of this Employment Appeal Tribunal, the Appellant has, subject to conditions, been permitted to see the whole of the attendance note for the purposes of conducting this appeal. We have been referred by the Appellant to a number of decisions, including George Doland Ltd v Blackburn Robson Coates & Co [1972] 1 WLR 1338, Great Atlantic Insurance Company v Home Insurance Company [1981] 1 WLR 529, and General Accident Fire and Life Assurance Corporation v Tanter [1984] 1 WLR 100. We have also been referred to extracts from Phipson on the Law of Evidence.
12. From these we are satisfied that where a part of a document is used in court proceedings, and privilege is thereby waived as regards that part, unless the remainder of the document has distinct subject matter and can be severed, the waiver applies to the whole of the document. Looking at this attendance note, although parts of the document concern advice being given to the Respondent, rather than assertions as to fact by him, the whole document has a common subject, being the history of, and current situation as to the Respondent's employment with the Appellant. Further it is impossible, in our view, to sever those parts which are purely advice from those parts that concern the factual background to that advice.
13. We therefore conclude that the Employment Tribunal was wrong to say that the attendance note could not be disclosed to the Appellant and adduced in evidence. We therefore order that it may be disclosed to them and may be adduced by them in evidence at the substantive Employment Tribunal hearing.
14. Finally, the Appellant claims that by reason of waiver of privilege as to the attendance note, the Respondent has waived privilege to all documentation relating to the same subject matter. They therefore claim to be entitled to see any connected documents up to and including any made on 4 April 2001, being the date on which privilege in respect of the attendance note of 22 August was waived. This contention was rejected by the Employment Tribunal in the following terms:

"the tribunal considers the applicant could not possibly receive a fair hearing if details of all the advice given to him by his solicitors prior to 4 April 2001 were to be divulged."

We strongly endorse that finding. We also note that the alleged waiver of privilege includes the period from September 2000 when the Employment Tribunal application was lodged, and when the further privilege attaching to communications in consequence of litigation would have attached. We find nothing in the Tanter or Doland cases to compel us to any other conclusion.

15. That is our decision. We have been asked by the Respondent to consider the question of costs in the event that the appeal should be unsuccessful. We note that the appeal has been successful on one of the three grounds, and we therefore make no Order as to costs.