United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS J McNEILL (of Counsel) Instructed by: Miss H Larter Messrs Beachcroft Wansboroughs 7 Park Square East Leeds LS1 2LW
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


JUDGE PETER CLARK

1. In this case, presently proceeding before the Leeds Employment Tribunal, the Applicant Mr Burcher, formerly employed by the Respondent as the Human Resources Director, complains of constructive unfair dismissal, relying on the reason or principal reason for his alleged dismissal as being his making protected disclosures and/or being for a Health and Safety reason. The claim is resisted.
2. At a directions hearing held on 21 June 2001 the Regional Chairman, Mr David Sneath, made the following Order, contained in paragraph 1 of a subsequent Directions Order sent to the parties on 26 June:

"I direct that the Respondent shall give discovery and inspection of the personal notes made by the Applicant relating to all matters giving rise to the disciplining of Mr Phipps and the treatment of him by the Respondent's Chief Executive, David Jackson. I direct that disclosure of those documents shall be limited to their use in these proceedings. Mr Phipps has brought proceedings against this Respondent which are due to be heard in September 2001. If he requires disclosure of those documents in those proceedings, he will have to make a separate application. The order shall be complied with on or before 6 July 2001. Compliance may be given by sending copies of the documents to the Applicant's solicitors."

["the Direction"]

3. Mr Phipps was a consultant surgeon employed by the Respondent until his dismissal on 21 September 2000. Mr Phipps has since brought a complaint of unfair dismissal before the Leeds Employment Tribunal as the Direction notes. We are told by Ms McNeill that at the directions hearing it was submitted on behalf of the Respondent that legal professional privilege would be claimed in respect of notes taken by the Applicant at meetings at which the Respondent sought and received legal advice in relation to the employment of Mr Phipps.
4. Following the Direction being given the Respondent's solicitor wrote to the Applicant's solicitor on 4 July enclosing a copy of the personal notes of the Applicant relating to Mr Phipps, save for those documents which they considered to be subject to legal privilege.
5. Further, by a Notice dated 6 August 2001 the Respondent appealed against so much of the direction as required them to disclose the Applicant's notes of meetings at which legal advice was sought by and given to the Respondent. It is that appeal which is now before us. This morning we have been presented with a form of agreed Order whereby this appeal should be allowed and the terms of paragraph 1 of the direction be varied. Our Practice Direction requires us to independently satisfy ourselves that it would be right to interfere with a decision or order of the Employment Tribunal.

Legal professional privilege

6. The position is, as we understand it, well-settled and clear. Communications between solicitor and client and internal documents revealing such communications are covered by legal professional privilege. They are privileged from production, absent fraud which does not arise in this case. Further, a document once privileged is always privileged Calcraft v Guest [1898] 1QB 759. Privilege may be claimed in a subsequent action other than that for which the documents were originally brought into existence.

The present case

7. In our judgment the notes taken by the Applicant at meetings attended by solicitors to the Respondent when advice was sought and given in relation to Mr Phipps's employment fall within this first class of documents to which legal professional privilege applies. The Applicant, as we understand the position in his Answer to this appeal, has never sought disclosure of any legally privileged documents and contends that that was always his position before the Regional Chairman, hence the agreement reached between the parties in this appeal.
8. One difficulty is that the Chairman's written Order does not refer to legally privileged notes of meetings. The Direction makes no express exception for such notes.
9. In these circumstances we shall allow the appeal and direct that the first paragraph of the Order made by the Regional Chairman and contained in his letter of 26 June be varied to read as follows:

" "The Respondent shall give discovery and inspection of the personal notes made by the Applicant relating to all matters giving rise to the disciplining of Mr Phipps and the treatment of him by the Respondent's Chief Executive, David Jackson, save for any personal notes which are protected by legal professional privilege"."

Those words being added to the original Order.

10. The appeal is allowed and the Direction amended accordingly.