HIS
HONOUR JUDGE DAVID RICHARDSON
1.
I have before me five appeals against interlocutory decisions of the
Employment Tribunal sitting in Manchester, all dealing with aspects of a claim
brought by Mr Felix Labinjo (“the Claimant”) against the University of Salford
(“the Respondent”).
2.
The Appeal Tribunal hears appeals only on points of law: see section
21(1) of the Employment Tribunals Act 1996. The role of the Appeal
Tribunal is therefore a limited one.
3.
Where a Tribunal is considering questions which are essentially factual,
the Appeal Tribunal is concerned to see whether the Tribunal has applied
correct legal principles and reached findings and conclusions which are
supportable, that is to say not perverse, if the correct legal principles are
applied. A finding or conclusion is perverse if and only if it is one which
no reasonable tribunal, on a proper appreciation of the evidence and the law,
would have reached.
4.
Where a Tribunal is taking a decision which is essentially discretionary,
such as a case management decision, the Appeal Tribunal’s role is again
circumscribed. The test to be applied was stated by Henry LJ, with whom Beldam
LJ and Thorpe LJ agreed, in Noorani v Merseyside Tec Ltd [1989]
IRLR 184, at paragraph 32:
“These decisions are entrusted to the discretion of the court at
first instance. Appellate courts must recognise that in such decisions
different courts may disagree without either being wrong, far less having made
a mistake in law. Such decisions are, essentially, challengeable only on what
loosely may be called Wednesbury grounds, when the court at first
instance exercised the discretion under a mistake of law, or disregard of
principle, or under a misapprehension as to the facts, where they took into account
irrelevant matters or failed to take into account relevant matters, or where
the conclusion reached was "outside the generous ambit within which a
reasonable disagreement is possible", see G v. G [1985] 1 WLR at
647. "
Prospects of success
5.
The first two appeals concern the prospects of success of the Claimant
in his claim, and serve also as an introduction to the issues which he wishes
to pursue. By a judgment dated 4 August 2010 Employment Judge O’Hara, while
declining to strike out his claim on the grounds that it had no reasonable
prospect of success, ordered him to pay a deposit on the grounds that the claim
had little reasonable prospect of success. By letter dated 10 March 2011 she
refused an application to review that part of her judgment. The Claimant
challenges those decisions.
6.
The Claimant was employed by the Respondent as an associate lecturer and
then lecturer. His employment began, according to his claim form, on 12
November 1993. In November and December 2007 he issued claims in the
Employment Tribunal at Manchester alleging unlawful race discrimination,
victimisation and harassment against the Respondent. He remained employed by
it. The claims were listed for hearing starting on 21 July 2008.
7.
On 14 July 2008, however, the solicitor then acting for the Claimant, Ms
Pat Wilkins of Bennet Wilkins, withdrew the claims by reason of a compromise.
A written compromise agreement was reached between the parties. The agreement
recorded in a recital that the Claimant’s employment would terminate on 31 July
2008 by reason of redundancy; and provided for a termination payment of £68,500
together with immediate access to his pension (he was then 57) – a lump sum of
£24,299 and an annual pension of £8,099.
8.
In the current set of proceedings the Claimant seeks a finding that this
compromise agreement should be set aside (so that he can pursue his claims for
race discrimination, victimisation and harassment). It is not in dispute
before me today that the Employment Tribunal has power to determine whether the
compromise agreement was vitiated by misrepresentation or non-disclosure,
applying normal contractual principles.
9.
The principal basis of his claim is that the Respondent provided
misleading information to his solicitors.
10.
In his claim form it is put as follows:
“4. Believing (a) the University’s assertion that a redundancy
had occurred in the Claimant’s area of work and (b) that it had calculated the
Claimant’s pension from his true date of his departure, the Claimant
compromised his claims.
6. In truth and in fact, there was no redundancy and the
information provided to the Claimant’s solicitor was misleading. Accordingly,
the said compromise agreement is invalid and unenforceable.
PARTICULARS
(a) In the Preamble to the Compromise Agreement, the University
stated in paragraph (B) that the Claimant’s employment with the University was
terminated on the ‘31 July 2008 by reason of redundancy’.
(b) There was no redundancy in relation to the Claimant’s
employment as a lecturer in the Business School of the University that
warranted his dismissal.
(c) No notice was ever given to the Claimant by the University
that a redundancy situation had developed and that he was selected for
redundancy.
(d) No attempt was ever made by the University to find the
Claimant a suitable alternative post, due to the alleged redundancy within the Business School.
(e) No redundancy payment was made to the Claimant who was a
lecturer at the University for over 15 years.”
11.
In a witness statement the Claimant said:
“5. Prior to the hearing of my claim which was fixed for 10 days
at the Manchester Employment Tribunal beginning on the 21 July 2008, both my
solicitor and the University solicitor were in communication. My solicitor was
informed that my post in the Business School had become redundant and that even
if I were to succeed in my claim there would be no work for me as my post as
lecturer no longer existed. The University offered to purchase, at a cost of
£28,000 added years in relation to my pension which would treat me, for pension
purposes, as aged 60 rather than 57. The added years would give me a lump sum
of £24,299 under the pension scheme and an annual pension of £8,099 per annum.
7. I accepted as true, the University’s claim that the
lectureship post I held had become redundant. In fact, that statement was
untruthful. Had I been told the truth, namely, that my employment was being
terminated because I brought a claim for race discrimination against the
University, I would not have compromised my claims and if I did, it would have
been on very different terms. As a result of the conduct of the University, I
feel completely deceived, because I genuine believed that there was a
redundancy when my solicitor signed the compromise agreement on my behalf.”
12.
The Respondent accepts that the Claimant was not redundant in the true
legal sense of the word. The Respondent’s case was put as follows in its
response form:
“7.1 The Respondent acknowledges that the Compromise Agreement
contains a statement that the Claimant’s employment was terminating by reason
of redundancy. However, the Respondent will say that this statement formed
part of the recitals to the Compromise Agreement and was not an operative
provision of the Compromise Agreement;
7.2 In any event, if the Claimant wished to contend that he was
not being dismissed by reason of redundancy, the time to make that contention
was prior to entering into the Compromise Agreement. The Respondent notes that
employees often prefer to label their dismissal as being by reason of
‘redundancy’, rather than state the real reason;
7.3 The Claimant made no such contention at the time of entering
into the Compromise Agreement and there is nothing which has come to light
since the Claimant entered into the Compromise Agreement to suggest that the
Respondent hid the true state of affairs. Indeed, by the Claimant’s own
admission, the facts that he now relies upon to support his argument that he
was misled regarding the reason for his dismissal must have been apparent to
him (or his adviser) at the time of entering into the Compromise Agreement,
namely:-
7.3.1 that there was no redundancy
situation;
7.3.2 that notice of redundancy was
not given;
7.3.3 that there was no search for
alternative employment for the Claimant;
7.3.4 that the Claimant did not
receive a redundancy payment.”
13.
There is a secondary basis to the Claimant’s claim. He was given
figures relating to his pension which were calculated as at 31 August 2008. He
says this ought to have been disclosed; the correct figures for 31 July 2008
ought to have been obtained; and his pension would or might have been better.
14.
There was a pre-hearing review before Employment Judge O’Hara, at which
she considered whether to strike out the claim as having no prospect of
success, or order a deposit because the claim had little prospect of success.
She declined to strike out the claim on the former ground. The Respondent
appealed against that decision, but its appeal was rejected under rule 3(7) of
the Employment Appeal Tribunal Rules 1993 by His Honour Judge Serota QC
and has been taken no further.
15.
However she ordered a deposit of £500 on the latter ground. Her
reasoning was as follows:
“7. The Tribunal does however consider that in the absence of
evidence on the allegations which are being put forward by the claimant today
(and which were not made clear in the originating application) in particular
the assertion that the respondent in some way induced the claimant into signing
the compromise agreement by ‘threatening his solicitor in the days leading up
to the hearing of the earlier claim that the claimant’s post was about to be
made redundant’ was not made clear in the originating application. Furthermore
on the basis of the witness statement provided today together with submissions
from Mr Crawford the Tribunal doubted the cause or connection between this
assertion even if the claimant was able to prove it and his subsequent decision
to enter into a compromise agreement. This doubt emanates from the fact that
the claims brought in those proceedings did not relate to the threat of
dismissal and that any compromise of those claims would not necessarily
therefore be related to termination of the claimant’s employment. Furthermore
the Tribunal finds that there is no mention of this allegation in the
correspondence which it has seen today and which is contemporaneous with the
events leading to the signing of the compromise agreement.”
16.
The Employment Judge made this order pursuant to rule 20 of the Employment
Tribunal Rules 2004 (Schedule 1 to the Employment Tribunals (Constitution
and Rules of Procedure Regulations 2004). Rule 20(1) provides:-
“At a pre-hearing review if an Employment Judge considers that
the contentions put forward by any party in relation to a matter required to be
determined by a tribunal have little reasonable prospect of success, the
Employment Judge may make an order against that party requiring the party to
pay a deposit of an amount not exceeding £500 as a condition of being permitted
to continue to take part in the proceedings relating to that matter.”
17.
Mr Crawford, who appears for the Claimant today as he has done below on
several occasions, submits that the deposit order ought not to have been made.
He says it was premature to make a finding that the claim had little prospect
of success; that Judge Serota’s refusal to hear an appeal on the striking out
question supports his case; that it was never part of the Claimant’s case that
his solicitor was threatened by the Respondent’s solicitor; and that the Employment
Judge ought to have considered what he described as the alternative issue,
namely whether redundancy was the reason for termination of the contract of
employment.
18.
I asked Mr Crawford how the Claimant proposed to prove that his
solicitor had been informed that his post had been made redundant and that even
if he were to succeed in his claim there would be no work for him as his post
as lecturer no longer existed. He referred to Statutes of the University
(which made provision as to redundancy) and to some documents in which the
Respondent said to third parties that the Claimant was redundant; but in the
end he was constrained to accept that the key evidence for the Claimant would
have to come from his solicitor.
19.
On this part of the case my conclusion is as follows.
20.
In my judgment the critical issue in the proceedings is whether the
Claimant can make good – that is to say, provide evidence – of what he says in
paragraphs 5 and 7 of his witness statement, especially paragraph 5. If what
he says is true, and he was told that even if he were to succeed in his claim
there would be no work for him as his post no longer existed, and if he was
induced by this to enter the compromise agreement, then he would have
substantial prospects of success in his claim.
21.
What the Claimant says does not prove itself. The Respondent says that
the Claimant’s solicitor was not told anything of the kind; that no steps had
been taken to make the Claimant redundant; and that in reality both parties
knew that his employment was terminating as part of the compromise. Certainly
it is common ground that no overt steps had been taken to make the Claimant
redundant; and it is to be noted that in an email the Claimant’s solicitor said
to the Respondent’s solicitor that the Claimant “… would like a negotiated and
dignified departure to be arranged” (3 July 2008).
22.
How will the Claimant prove the key point in his case? If he calls his
solicitor, Ms Wilkins, and she gives evidence to the effect of paragraph 5 of
his witness statement, then of course he would be on strong ground. But he had
at the time of the pre-hearing review, and still has, no witness statement from
Ms Wilkins to put forward. I cannot see anything in the many documents in my
bundle, whether they were before the Employment Judge or not, which evidences
the representation to his solicitor which he alleges.
23.
In my judgment this is the point which Employment Judge O’Hara was
making in paragraph 7 of her reasons. It is true that she referred to the
Respondent in some way inducing the Claimant into signing the agreement “by
threatening his solicitor”; but this I have no doubt was a reference to
paragraph 5 of the witness statement: an assertion that the Claimant would in
any event lose his job through redundancy would, if it were made, in effect be
a threat to induce him to settle.
24.
In my judgment the Employment Judge was correct to say that, in the
absence of evidence to support paragraph 5, the Claimant’s claim has little
reasonable prospect of success. This was the key point in her reasoning, and
in my judgment it justified her decision. I see no error of law in her
conclusion.
25.
Contrary to Mr Crawford’s submission, I do not consider that the
Employment Judge’s decision was premature. The purpose of considering whether
there is “little reasonable prospect of success” at an interlocutory stage is
to expose weak cases before the expense of a final hearing is incurred. This
is to the advantage of both parties; and it is in accordance with the
overriding objective (see reg.3 of the 2004 Regulations). If the Claimant has
not acquired the evidence to support his case before he begins it, he cannot
complain if this is pointed out to him when he still has time to do something
about it. The deposit of £500 is a small price to pay for learning that a key
element of his case requires attention.
26.
Judge Serota’s rejection of the Respondent’s appeal, which related to
the different question whether there was no reasonable prospect of success, is
not inconsistent with a finding that there is little reasonable prospect of
success. Nor do I think there is an “alternative” issue as to whether
redundancy was the reason for dismissal. It is not enough for the Claimant to
show that redundancy was not the reason for dismissal: this indeed is
conceded. The question is whether there was a misrepresentation which entitles
him to avoid the agreement.
27.
Following the judgment dated 4 August 2010 the Claimant applied for a
review. He relied on what he described as fresh evidence: in particular there
were documents showing or tending to show that after the compromise agreement
the Respondent said to third parties (a pension fund and HMRC) that the
Claimant’s employment was terminated by reason of redundancy. The Employment
Judge, after some delay, rejected the application for a review on a number of
grounds, including that the application was out of time and that she did not
consider it just and equitable to extend time. Most importantly, she said that
the fresh evidence did not show that the claim has more than little reasonable
prospect of success.
28.
Mr Crawford has attacked various grounds which the Employment Judge gave
for refusing a review. The key issue, to my mind, is the Employment Judge’s
evaluation of the evidence which the Claimant wished to adduce.
29.
In my judgment the Employment Judge did not err in law when she
concluded that the further evidence on which the Claimant relied did not show
that the claim had more than little reasonable prospect of success. The issue
is whether, prior to the compromise agreement, the Respondent’s solicitors
represented to the Claimant’s solicitors that he would in any event, whatever
the result of the Tribunal hearing, be made redundant as at 31 July. The fact
that, after the compromise agreement, the Respondent said to third parties that
the employment was terminated by reason of redundancy, will not prove this. If
the Claimant adduces evidence as to what happened between the solicitors, and
the evidence proves to be in conflict, then what happened after the compromise
agreement may perhaps be a supporting point for him; but it is not a substitute
for evidence as to what happened between the solicitors.
Disclosure and striking out
30.
I turn then to the next aspect of the case – the making of an “unless
order” by order dated 5 July, the recording of a judgment on 20 July striking
out the claim in consequence, and a subsequent refusal, dated 8 September 2011,
to review the matter.
31.
On 8 February 2011 Employment Judge recorded the following as part of a
document headed “case management order”.
“10. A way of working was agreed between respective counsel that
the claimant should reconsider the list of documents provided to the respondent
to date from the perspective that documents in the period May to August 2008
inclusive are likely to be relevant to the issues to be determined but the
majority of documents outside of that period are unlikely to be relevant.
However insofar as documents outside of that period are sought to be relied
upon by either party then each should give to the other an explanation as to
why each claims they are relevant by direct reference to the subparagraph of
paragraph 8 of Employment Judge O’Hara’s order. Similarly insofar as a
document within the period I refer to above is not relevant and a similar
explanation should be provided.”
32.
Two points need to be made by way of explanation. First, paragraph 8 of
Employment Judge O’Hara’s earlier order set out the issues between the
parties. Second, the procedure set out in paragraph 10 was required because
the Claimant had set out, in a list of documents, many documents prior to and
after the key period, which was between May and August 2008.
33.
At a case management hearing which took place on 24 June and was
confirmed by order dated 5 July 2011 Employment Judge Howard ordered:
“3. Unless the claimant complies with the Order of Employment
Judge Perry of 8 February 2011, contained at paragraph 10 of the Case
Management Order of that date, within 21 days, that is on or before 15 July 2011,
with a copy sent to the Employment Tribunal, his claim shall be struck out
without further order.”
34.
In effect, therefore, this required the Claimant, if he wished to rely
on documents outside the period from May to August 2008, to give by 15 July an
explanation as to why each such document was relevant by reference to the
issues in the case.
35.
On 8 July 2011 the Claimant served a Notice of Appeal against the order
dated 5 July. In particular he appealed against the making of the “unless
order”. On the same day he wrote to the Tribunal to ask for a stay of the
order pending appeal. However the Employment Judge did not see the letter
until after 15 July. There was therefore nothing to stop the order taking
effect on 15 July.
36.
On 20 July the Employment Judge gave a judgment which recorded the
Claimant’s failure to comply with the “unless order” and stated that the claim
was struck out in its entirety.
37.
The Claimant applied for a review, saying that he had complied with the
order and pointing out that the Employment Judge had not dealt with his
application for a stay prior to 15 July. On 8 September this application was
rejected. The Employment Judge said:
“Whilst the Employment Judge was not aware of the claimant’s
application for a stay until 19th July and thus could not grant or
refuse the claimant’s application retrospectively, the Employment Judge
considers that the claimant’s application did not provide any good grounds upon
which such a stay would have been granted and taking account of the respondent’s
grounds of objection. Thus, the Employment Judge is satisfied that, even had
she considered the application for a stay before the strike out took effect,
she would have refused it.”
38.
Mr Crawford submits that an “unless order” striking out the whole of the
claim was unnecessary, given that the underlying order related only to the
relevance of peripheral categories of document; that the application for a stay
ought to have been considered before judgment was entered on 20 July; and that
it was a plain case for the grant of a review – the Claimant’s disobedience to
the order was not deliberate, since he had applied for a stay and was appealing
the order.
39.
Ms Wedderspoon submits that the Employment Judge was entitled in the
exercise of its discretion to make the “unless order”; that the Claimant was
bound to comply with it in the absence of the granting of a stay; that the
judgment correctly recorded that the striking out had taken effect; and that
the Employment Judge did not err in law in refusing the application for a
review. She says that the Claimant had become an experienced litigant who
could and should have complied with the court order; and she says that he did
not comply with a further provision - paragraph 18(4) of the Order dated 8
February 2011.
40.
It is important, in my judgment, to keep in mind the problem with which
paragraph 10 of the Order dated 8 February was intended to deal. The problem
was that the Claimant had disclosed, and wished to have in a bundle for the
final hearing, a great many documents outside the core period with which the
case was concerned. The purpose of paragraph 10 was to tease out whether these
documents were really required and if so why.
41.
Given that this was the purpose of the underlying order, to strike out
the whole claim for non-compliance was in my judgment plainly inappropriate and
excessive. In the absence of compliance by the Claimant it would – it seems to
me - have been proportionate to direct that no documents outside the core
period should be included in the bundle or adduced in evidence; but to debar
the Claimant from bringing his claim merely because he had not complied with an
order to state his case for including some peripheral documents was
unnecessary. The Employment Judge gave no reasons for saying that it was
appropriate to strike out the whole claim if there were non-compliance with
this order. If she had directed her mind to that question I have no doubt that
she would have imposed a lesser sanction.
42.
Accordingly I will allow the appeal against the “unless order” and set
it aside.
43.
This being so, it is strictly unnecessary to deal with the appeals
against the judgment on 20 July and the refusal of a review on 8 September, but
I will state my conclusions shortly. The judgment on 20 July did no more than
record what had happened by virtue of the “unless order”; I see no error of law
in that judgment, and I would have dismissed that appeal. I find the decision
on review, however, more problematic. It seems to have given no weight at all
to the possibility that the Claimant might have been expecting a response to
his application for a stay, which had not been brought to the Employment
Judge’s attention. It has not considered in the round whether there might be
grounds for granting relief against sanction. In the end, however, I need not
express any concluded view about that decision.
Amendment
44.
I turn next to the refusal by Employment Judge Howard, also by the order
dated 5 July, to grant permission to amend the grounds of claim.
45.
The amendment sought (1) to plead the University’s statutes, in so far
as they concern redundancy, (2) to re-cast, though to my mind not essentially
altering, the claim of misrepresentation, (3) to plead events after the making
of the compromise agreement – including the representations to HMRC and the
pension fund, (4) to plead that the date of the compromise agreement was 14
July rather than 5 August, and (5) to plead that, by reason of the alleged
material non-disclosure, the Claimant suffered loss (although no particulars of
the loss were given).
46.
The Employment Judge refused the application, giving the following
reasons:-
“1.6 The Employment Judge refused the claimant leave to amend
the Claim Form, applying the “Selkent” principles and bearing in mind the
parties’ duties to assist in furthering the overriding objection. The
Employment Judge accepted that the amendments sought would significantly
broaden the issues to be determined, requiring an amended response, and it
would not be a proportionate or an expeditious way of conducting the
proceedings.
1.7 Further, the amendment had been sought well beyond the
statutory time limit and very late in the proceedings with no good reason
advanced as to why, when an application to amend at a much earlier stage, in
particular following clarification of the issues at the Pre Hearing Review in
July 2010, could have been made.
1.8 The Employment Judge was satisfied that the prejudice that
would be caused to the respondent by allowing the amendment outweighed the
hardship caused to the claimant in refusing it.”
47.
Mr Crawford, while accepting that the Selkent principles
were the correct principles to apply, submits that the Employment Judge erred
in law in their application. He concentrates his submissions in particular
upon the pleading of the University’s Statutes and the date of the compromise
agreement – these were relevant to the claim and amendment to refer to them
could not conceivably broaden the issues greatly or cause prejudice to the
Respondent.
48.
I confess that I have not entirely understood the reasoning of the
Employment Judge, especially the reference to time limits. I consider,
however, that her order was plainly right. The original grounds of claim put
the Claimant’s case sufficiently. It was not necessary to plead the
University’s Statutes: they are really no more than background, given that it
is common ground that the termination of the Claimant’s employment was not
redundancy in the true sense of the word. It was not necessary to plead events
afterwards: the University’s communications to HMRC and the pension fund may
have some limited relevance, as I have endeavoured to explain, but they are not
central. The date of the compromise agreement is not really in issue: in
essential respects it was complete by 14 July, although some formalities may
have been dealt with in August.
49.
I therefore uphold the Employment Judge’s refusal of permission to
amend.
The file of Bennet Wilkins
50.
On 5 July Employment Judge Howard made the following order:
“4. On or before 15 July 2011, the claimant shall serve on the
respondent copies of the contents of his file obtained from his former advisor,
Ms Pat Wilkins. For the avoidance of doubt, reference to ‘file’ includes all
communications between the claimant and his former advisor Pat Wilkins and her
firm, Bennett Wilkins, limited to the period May to August 2008, which are in
the claimant’s possession, custody or control, including correspondence and
attendance and file notes.”
51.
Employment Judge Howard’s reasons were as follows:
“3.1 The claimant’s position was that those documents were
privileged. It was his belief that the documents were not the complete
contents of his file and, on that basis, he was unwilling to waive privilege.
It was further argued on his behalf that, in any event, the documents were not
relevant to the issues to be determined and they related to advice on his
substantive claim of race discrimination.
3.2 It was argued by the respondent that the documents were of
crucial and central relevance to the issues to be determined and that their
suppression could result in a misleading and dishonest case being pursued
before the Tribunal.
3.3 The Employment Judge held that, whilst the documents were
clearly of central relevance to the issues to be determined, that in itself was
not sufficient to form the basis of an Order to disclose otherwise privileged
documentation. However, the Employment Judge accepted that suppression of
those documents could potentially result in a misleading and something
amounting to a dishonest case being pursued by the claimant and, on that basis,
applying the Employment Appeals Tribunal Judgment in Independent Research
Services v Catterall EAT 1993 ICR 1, agreed to order disclosure.”
52.
Mr Crawford emphasises the importance which is to be attached to
privileged communications and submits that there was insufficient material to
justify the Tribunal in overriding that privilege. The mere fact that the
Respondents chose to allege that the Claimant’s solicitor was the “prime mover”
in labelling the termination of his contract as redundancy would not justify
the overriding of the privilege. Moreover the Employment Judge should have
taken into account the fact – which was plain from correspondence with Ms
Wilkins, which was before her – that he did not have the whole file; electronic
documents were no longer available despite a thorough search, even involving
the use of a computer consultant by Ms Wilkins.
53.
I find it helpful, before turning to Ms Wedderspoon’s submissions, to
start from first principles.
54.
Documents on a solicitor’s file are generally subject to disclosure if
they are relevant to an issue in the proceedings. There are, however, types of
document which may be privileged from disclosure. It is relevant to mention
two such types here.
55.
Firstly, there may be documents on the solicitor’s file which are
communications from one side to the other in the course of “without prejudice”
negotiations to settle the case. These documents are privileged from
disclosure by virtue of what is generally known as the “without prejudice
rule”. This rule is founded upon the public interest in encouraging litigants
to settle their differences rather than litigate them to a finish.
56.
There are numerous exceptions to that rule. Thus, for example, evidence
of the negotiations is admissible to show that an agreement apparently
concluded between the parties during the negotiations should be set aside on
the ground of misrepresentation, fraud or undue influence; and it must follow,
in my judgment, that evidence of negotiations is admissible to rebut an
assertion that a compromise agreement should be set aside on grounds of
misrepresentation, fraud or undue influence.
57.
It seems, from her reference to Independent Research Services v
Caterall that the Employment Judge had the “without prejudice” rule in
mind when she granted the order in question. Independent Research
Services v Caterall was a case concerning that rule.
58.
It is, however, important in my judgment to appreciate that a second,
quite distinct, kind of privilege was also engaged in this case. This is the
type of privilege known as legal professional privilege. It is not necessary
for the purposes of this judgment to give a full exposition of this privilege.
It protects, in particular, confidential communications between client and
solicitor the purpose of which was to seek or receive legal advice (legal
advice privilege). It protects also other confidential communications for
which litigation was the dominant purpose (litigation privilege).
59.
In this case I have no doubt, having heard Ms Wedderspoon’s submissions
today, that it is the confidential communications between client and solicitor
which ought to have been the focus of the application before Employment Judge
Howard and on which she should have received submissions. The purpose of the
legal professional privilege rules is quite different to that of the without
prejudice rule; the exceptions are more tightly drawn; and Independent
Research Services v Caterall was not in point. The Employment Judge’s
reasoning cannot stand.
60.
Ms Wedderspoon argued that the Claimant had waived privilege in his
solicitor’s file. I have seen nothing in the papers before me to suggest that
he has yet done so; and in any event this was not the ground of the Employment
Judge’s decision, nor was it argued before her. Whether, given the nature of
his case, the Claimant will be able to succeed if he does not waive privilege
is a matter which he will need to consider with care along with the question
whether his former solicitor will support it. At present, however, it seems to
me that his privilege is intact.
61.
For these reasons I conclude that the first and second appeals must be
dismissed and the third appeal allowed in part. The fourth and fifth appeals
have been rendered academic in the light of my conclusion that the “unless
order” should not have been made; and I will make no order upon them.
