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Howes v. Hinckley & Bosworth Borough Council


Employment Appeal Tribunal

Regardless of whether or not advice about a grievance given to an employer by a solicitor was protected by legal advice privilege or litigation privilege, it should not be disclosed to the employee if it was not relevant to his case.
The appellant employee (H) appealed against an employment judge's decision that advice given to the respondent local authority employer by a solicitor should not be disclosed. H had lodged a claim which included an allegation that the local authority had not complied with the statutory grievance procedure because it had failed to address the grievance and had unduly delayed. The local authority had received advice from the solicitor (M) about the grievance. H sought disclosure of that advice, but the judge found it was protected by legal advice privilege and litigation privilege. H submitted that the advice was given not in M's capacity as a solicitor but rather as an employment consultant and so it was not protected by legal advice privilege; since litigation was not in contemplation at the time the advice was sought, it was not protected by litigation privilege; and the local authority had waived privilege by indicating the gist of the advice to her.

HELD: (1) M's advice was not relevant to H's case, which was based on the local authority's alleged failure to address the grievance and delay, because although the fact of seeking advice might have some relevance to why there was a delay, the content of that advice would not. Moreover, when determining whether the statutory grievance procedure had been complied with, the only issue was whether the local authority had informed H of its decision as to his grievance, which it had. Strictly, that did not require the reasons at all. (2) Advice given by a solicitor with a practising certificate would only be protected by legal advice privilege if he were acting in that professional capacity, Three Rivers DC v Bank of England (Disclosure) (No4) (2004) UKHL 48, (2005) 1 AC 610 applied. Whilst it would be possible for a qualified lawyer, even one with a practising certificate, to act in some other capacity, there was no clear evidence that M was acting other than as a solicitor, and the judge had been entitled to infer that since M was a qualified solicitor with a practising certificate, and given the nature of the advice sought, he had been acting as a solicitor when giving that advice. (3) Litigation privilege arose when legal proceedings were contemplated and the dominant purpose for which the advice was sought was the litigation, M&W Grazebrook Ltd v Wallens (1973) 2 All ER 868 NIRC and Waugh v British Railways Board (1980) AC 521 HL applied. The evidence in the instant case sustained the judge's conclusion that litigation was in contemplation, but it also indicated that the immediate purpose of obtaining the advice was to attempt to resolve the particular grievance rather than prepare for contemplated litigation. It was impossible to say that the contemplated litigation was the dominant purpose, and therefore the advice was not protected by litigation privilege. (4) The local authority's limited and oblique reference to the content of the advice did not amount to a waiver. It was not sufficient to lose confidentiality in the advice, and it was not a case where reliance was being placed on it in legal proceedings so as to render it unfair for the privilege to be maintained.

Appeal dismissed


LTL 4/8/2008

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