Factual and Procedural Background
This opinion concerns ongoing equal pay litigation initiated in 2003 by the Plaintiff and others against Company A and two trade unions. The case involves claims under the Equal Pay Act 1970 and defences including genuine material factor defences (GMF) related to pay differences justified by factors other than sex. There have been multiple appeals to the Employment Appeal Tribunal (EAT) concerning procedural and substantive issues, including whether claims against trade unions can be heard by the Employment Tribunal, and the validity and application of a Job Evaluation Scheme introduced by Company A on 1 October 2005.
The current appeal arises from the Plaintiff's application for disclosure of Company A's legal advice and un-redacted council meeting documents relevant to the lawful period of pay protection under the new Job Evaluation Scheme. The Employment Tribunal refused disclosure, prompting this appeal. The GMF defence hearing has proceeded in stages, with some aspects still pending judgment, and further hearings scheduled through 2010.
Legal Issues Presented
- Whether the disclosure of certain documents containing or referring to legal advice by Company A constitutes a waiver of legal professional privilege.
- Whether partial disclosure or redaction of documents at trial is permissible without waiving privilege over the redacted parts.
- The scope and application of the "cherry picking" principle in relation to partial disclosure of privileged material.
- The requirement of "reliance" or "deployment" of legal advice in litigation to constitute waiver of privilege.
- The relevance of fairness and inconsistency principles in determining waiver of privilege.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff contended that references in certain notes and documents to legal advice from Company A amounted to disclosure of privileged information and thus constituted a waiver of privilege.
- They argued there was no separate requirement for reliance; the mere fact of placing the material before the court triggered waiver.
- The "cherry picking" principle prohibits a party from relying on parts of privileged documents while withholding the remainder.
- The Plaintiff relied on Australian case law, especially Bennett v Chief Executive Officer of the Australian Customs Service, to support a broader principle of waiver based on inconsistency rather than fairness alone.
- They submitted that Company A’s position in litigation was inconsistent with its legal advice, justifying full disclosure.
- The Plaintiff also argued that redacted parts of documents should be disclosed at trial to avoid misleading partial disclosure.
Respondents' Arguments
- Company A and the trade unions contended that mere references to legal advice without reliance or deployment in litigation do not waive privilege.
- They argued waiver requires that the privileged material be used to gain an advantage in the proceedings, which was not the case here.
- They maintained that partial disclosure and redaction of privileged material is permissible both at discovery and trial stages.
- They emphasized the importance of fairness as the guiding principle in waiver determinations, requiring both disclosure of substance and reliance.
- They submitted that the alleged inconsistency related to collective bargaining negotiations and litigation positions, which do not trigger waiver.
- Policy concerns were raised regarding the confidentiality of collective bargaining processes and the risk of undermining them if casual references to legal advice were deemed waiver.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Wilson v Northampton & Banbury Junction Railway Company [1872] LR 14 Eq 477 |
Legal professional privilege protects confidential communications between solicitor and client for legal advice. |
Established the fundamental public policy basis for privilege protection. |
| Burnell v British Transport Commission [1955] 1 QB 187 |
Waiver of privilege requires fairness; partial use of privileged documents without disclosure of the whole is unfair. |
Supported the principle against "cherry picking" privileged material. |
| Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 |
Privilege cannot be waived as to part of a document and asserted as to the remainder; partial disclosure risks injustice. |
Reinforced the "cherry picking" principle and the requirement of fairness in waiver. |
| Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation [1981] Com. L.R. 138 |
When privileged material is deployed in court, the whole relevant material must be disclosed to avoid misunderstanding. |
Clarified that "deployment" of privileged material triggers waiver. |
| Dunlop Slazenger International Limited v Joe Bloggs Sports Limited [2003] EWCA Civ 901 |
Distinction between referring to the effect of a document and relying on its contents; reliance on contents may waive privilege. |
Supported the two-limb test for waiver: disclosure of contents and reliance. |
| Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 |
Waiver arises from inconsistency between conduct and confidentiality; voluntary disclosure of gist or conclusion of legal advice waives privilege. |
Considered as persuasive authority emphasizing inconsistency over fairness; discussed in detail but not adopted as English law. |
| Mann v Carnell (1999) 201 CLR 1 |
Disclosure inconsistent with confidentiality effects waiver; fairness relevant to determination. |
Applied in Bennett; cited for principles on waiver based on inconsistency. |
| GE Capital Corporate Finance Group v Bankers Trust [1995] 1 WLR 172 |
Redaction of irrelevant or privileged parts of documents is permissible; no requirement to disclose entire document at trial. |
Supported the permissibility of redactions in evidence without waiver. |
| Rubin v Expandable Services Ltd [2008] 1 WLR 1099 |
Reference to mere existence or general effect of legal advice does not waive privilege. |
Confirmed the requirement that substance of advice must be disclosed for waiver. |
| Marubeni Corporation v Alafousos [1991] WLR 731 |
Distinction between reliance on contents versus effect of legal advice; reliance on effect does not waive privilege. |
Clarified limits of waiver where only effect is referred to, not contents. |
| Infields Ltd v P Rosen and Son [1938] 3 All ER 591 |
Reliance alone is not sufficient for waiver; must be reliance on contents. |
Supported the distinction between reliance on contents and effect. |
| Government Trading Corporation v Tate & Lyle Industries Ltd (unreported, 24 Oct 1984) |
Referring to source of legal advice for disclosure does not amount to waiver. |
Emphasized that full disclosure of privileged material is not required merely by referencing advice source. |
| R v Secretary of State for Transport ex parte Factortame & Others CO/1735/88 |
Partial disclosure may be unfair depending on severability and relevance; reliance on disclosed material relevant to waiver. |
Applied the "cherry picking" principle and fairness in waiver determinations. |
| Kelly v University of Southampton UKEAT/0574/05 |
Reliance on legal advice in proceedings is necessary for waiver; mere reference without reliance insufficient. |
Supported the necessity of reliance for waiver in employment law context. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the legal principles governing waiver of legal professional privilege, emphasizing that privilege protects confidential communications between solicitor and client. Waiver arises from inconsistency between a party’s conduct and the maintenance of confidentiality, assessed primarily through the lens of fairness.
The court recognized the "cherry picking" principle, which prevents a party from selectively disclosing privileged material to gain an advantage while withholding the remainder. However, it stressed that waiver requires more than mere reference to legal advice; it requires disclosure of the substance or gist of the advice and reliance or deployment of that advice in the litigation to advance a party's case.
The court considered the five specific references in the notes exhibited by the Plaintiff. It agreed with the Employment Tribunal that the first four references only generally acknowledged the existence of legal advice and did not disclose its substance, thus not constituting waiver. The fifth reference was found to disclose part of the substance of the advice but was not relied upon by Company A in the litigation.
The court rejected the Plaintiff's submission that reliance was unnecessary and that mere disclosure before the court sufficed for waiver. It held that reliance is a crucial element in English law, distinguishing it from some Australian authorities cited by the Plaintiff. The court further emphasized that inconsistency triggering waiver must relate to the litigation process itself, not to positions taken in collective bargaining negotiations.
Regarding the redaction issue, the court upheld the Employment Tribunal’s decision that redaction of privileged material in documents adduced at trial is permissible and does not constitute waiver. It relied on established authority confirming that full un-redacted disclosure at trial is not required if privilege applies.
Ultimately, the court concluded that no waiver of privilege had occurred because there was insufficient disclosure of the substance of legal advice combined with reliance in the litigation. The court acknowledged that if Company A were to rely on the legal advice in the future, the position could change, but that was not the case at present.
Holding and Implications
The court’s final decision is DISMISSED, affirming the Employment Tribunal’s refusal to order disclosure of the legal advice and un-redacted documents.
The direct effect is that Company A is not required to disclose the withheld legal advice or un-redacted minutes at this stage, as no waiver of privilege has been established. The ruling preserves the protection of legal professional privilege in the context of ongoing litigation where the advice has not been relied upon to advance a party’s case. No new legal precedent was created; rather, the decision applies established principles of waiver, fairness, and reliance to the facts before the court.