Introduction

The case of University of Dundee v. Prasun Chakraborty ([2023] ScotCS CSIH_22) presents a pivotal examination of the boundaries of legal professional privilege within the context of internal grievance procedures and subsequent legal actions. This appeal before the Scottish Court of Session's Inner House scrutinizes whether an earlier version of an investigative report retains its privileged status when a later amended version discloses the involvement of legal advice. The core dispute revolves around the University of Dundee's (Appellant) attempt to protect the confidentiality of legal communications related to a grievance raised by Prasun Chakraborty (Respondent), a former post-doctoral research assistant. The judgment addresses fundamental questions about the extent to which legal privilege can shelter documents from disclosure, especially when amendments suggest legal counsel involvement.

Summary of the Judgment

The University of Dundee issued a Dignity at Work and Study Policy and Procedures document outlining protocols for handling harassment and bullying complaints. Chakraborty, employed by the University from January 2013 to December 2021, filed a grievance alleging racial abuse and harassment against his supervisor, Prof Kevin Hiom, and subsequently initiated an Employment Tribunal (ET) claim for unfair dismissal and discrimination. During the ET proceedings, Chakraborty sought access to the original version of the investigative report conducted by Prof Niamh Nic Daeid, which had been amended multiple times with legal input. The University contended that the original report was protected by legal professional privilege. The Employment Appeal Tribunal (EAT) initially denied the University's claim, leading to an appeal to the Court of Session. The Inner House ultimately ruled in favor of Chakraborty, determining that the original report did not retain privileged status simply because its amendments included legal advice. The court emphasized that privilege must be clearly established at the time of document creation and cannot be inferred from subsequent disclosures.

Analysis

Precedents Cited

The judgment extensively references key legal precedents to delineate the boundaries of legal professional privilege. Notably:

• Three Rivers DC v Bank of England (No. 5 and No. 6) [2003] QB 1556 & [2005] 1 AC 610: These cases clarify the distinction between legal advice privilege and litigation privilege, emphasizing the necessity of a relevant legal context for the former.
• Re Edwardian Group [2017] EWHC 2805 (Ch): This case differentiates scenarios where legal advice privilege is clearly established versus situations where only speculative inferences about legal advice can be made.
• Barr v Biffa Waste [2010] 3 Costs LR 291: Addresses the protection of confidentiality in post-motam confidentiality contexts.
• Scottish Lion Insurance Co v Goodrich Corporation 2011 SC 534: Provides the test for waiver of confidentiality, focusing on inconsistent conduct by the party holding the privilege.

These precedents collectively reinforce the principle that legal professional privilege is not absolute and must be explicitly established concerning the original document's creation within a legal context.

Legal Reasoning

The court's legal reasoning centered on whether the original investigative report was created within a legal context that would invoke legal advice privilege. Initially, the University conceded that the original report was not privileged as it was an internal grievance investigation and not a communication between client and lawyer. The crux of the matter was whether the subsequent amendments, which included legal advice, retrospectively conferred privilege to the original document. The court determined that privilege must be identifiable at the time of the original document's creation and cannot be retroactively applied based on later disclosures. The presence of a footnote indicating that the report was amended following legal advice did not suffice to establish privilege for the original version. Additionally, the court found that the University had effectively waived any claim to privilege by disclosing the nature of the legal advice, making it impossible to protect the original report under the guise of confidentiality.

Impact

This judgment has significant implications for organizations and legal practitioners. It underscores the necessity for clarity and precision when invoking legal professional privilege, particularly in internal reports that may later be subject to legal scrutiny. Organizations must ensure that privileged status is explicitly maintained from the inception of document creation and be cautious of actions that might inadvertently waive such privileges. Moreover, the decision reinforces the judiciary's commitment to transparency and fairness in employment disputes, ensuring that evidence vital to a fair resolution is accessible unless unequivocally protected by established privilege.

Complex Concepts Simplified

Legal Professional Privilege

Legal professional privilege is a fundamental principle that safeguards communications between a client and their lawyer, ensuring confidentiality. It prevents the disclosure of sensitive information that could compromise a client's legal position. There are two main types:

• Legal Advice Privilege: Protects communications made for the purpose of seeking or providing legal advice.
• Litigation Privilege: Protects documents created in anticipation of litigation.

In this case, the focus was on legal advice privilege, questioning whether an internally generated report, later amended with legal input, could retain privileged status.

Waiver of Privilege

Waiver occurs when a party relinquishes their right to claim privilege, either intentionally or through actions that are inconsistent with maintaining confidentiality. For example, disclosing aspects of a privileged communication can lead to an implied waiver, making the privilege unenforceable in that context.

Conclusion

The decision in University of Dundee v. Chakraborty reaffirms the strict criteria required to uphold legal professional privilege. It delineates that privilege cannot be retroactively applied to documents not initially created within a legal context, even if later amendments involve legal advice. This ruling emphasizes the importance of maintaining clear boundaries and intentionality when handling confidential legal communications. For legal practitioners and organizations alike, it serves as a crucial reminder to meticulously safeguard privileged information from actions that could inadvertently compromise its confidentiality. Ultimately, the judgment contributes to the ongoing discourse on evidence law and the protection of legal confidences within the Scottish legal framework.