UK: The University Of Dundee v Chakraborty: Internal Investigations And Privilege

In The University of Dundee v Chakraborty [2023] CISH 22, the Scottish Court of Session considered the privilege status of an early unpublished version of an internal investigation report, which had been amended and reissued following the receipt of legal advice, and then disclosed in its final form in Employment Tribunal proceedings. The Court held, in a decision which, albeit Scottish, is binding on all UK Employment Tribunals, that the early version of the report was not privileged. The decision serves as a useful reminder of the circumstances in which internal investigation reports will and won't be privileged, and the risks of sharing legal advice with an internal investigator during the course of their investigation.

1. Background
2. The Court of Session's Ruling
3. Analysis

1. Background

Mr Chakraborty (the "Respondent") was an employee of the University of Dundee (the "Appellant") who raised a grievance with the Appellant's 'Dignity at Work and Study' panel ("DAWS"). An investigation was launched by DAWS into the grievance, with the aim of producing a report. Before the conclusion of the investigation, the Respondent brought proceedings against the Appellant in the Employment Tribunal ("ET") alleging unfair and/or constructive dismissal and racial discrimination. During those proceedings, a final version of the DAWS report was presented to the ET, accompanied by a footnote explaining that it had been "amended and reissued on 23.06.2022 following independent legal advice". The Respondent sought disclosure of the original, unamended report. The Appellant resisted on the basis that a comparison of the original report with the final report would betray the tenor of the legal advice obtained by the Appellant (which was protected by privilege).

Both the ET and the Employment Appeal Tribunal permitted disclosure of the original report. Their reasoning was essentially that the original report was intended as an investigative response to the Respondent's grievance. It met the test for neither legal advice privilege nor litigation privilege at the time of its creation; it could not subsequently become cloaked with privilege at a later point even if a comparison between it and the final version could enable inferences to be drawn as to the legal advice the Appellant had received.

The Appellant appealed to the Court of Session to contest the EAT's decision.

2. The Court of Session's Ruling

The Court of Session endorsed the EAT's decision. Disclosure of the original report to the Respondent would be permitted on the basis that: (a) it was not subject to legal advice privilege; and (b) in any event, the actions of the Appellant had resulted in any privilege which may have subsisted being waived.

a. Legal advice privilege did not attach to the original report

The Court considered there was "no doubt" that the legal advice sought by the Appellant prior to the reissuance of the report was protected by legal advice privilege: it was a communication arising out of the relationship of lawyer and client in a "relevant legal context". However, in the Court's view, the privileged status of that legal advice was "irrelevant" to the question of whether the original report itself was privileged. This was because: (i) the legal advice was tendered after the preparation of the original report, and therefore could not have influenced its content; and (ii) a comparison between the original and the final reports would only allow the Respondent to speculate as to, and not provide him with a complete understanding of, the substance of the legal advice received by the Appellant (and even then only because the Appellant had itself revealed the existence of such advice as having influenced the final version).

b. Waiver of privilege

The Court then considered whether privilege in the legal advice sought by the Appellant had been waived. It noted that privilege "was probably abandoned" when the advice was revealed to the DAWS panel carrying out the internal investigation, and "was certainly lost" once a footnote was added to the final report revealing that the original report had been amended as a result of the advice. The Court considered that it would have been obvious to the Appellant when it disclosed the final report that it would have been subject to scrutiny in the ET proceedings, and that if some of its contents were based on legal advice, that advice would have to be revealed in the interests of fairness and understanding.

3. Analysis

It is relatively uncontroversial to hold that an internal investigation report which did not meet the tests for either litigation or legal advice privilege at its inception, could not subsequently become privileged. However, the Court's decision here is nonetheless a reminder that internal fact finding reports prepared in this sort of context (here, by a senior member of the Appellant's staff appointed to the DAWS panel in order to investigate the Respondent's grievance in an independent manner) will generally not be protected by either type of privilege. It also serves as a warning that if a corporate shares legal advice it has obtained with an internal investigator appointed to look into a grievance or suspected wrongdoing, and that advice subsequently forms part of the basis on which the investigator reaches its published conclusions, then that may in and of itself be sufficient for any privilege which may have subsisted in that advice to have been waived. Here, the Appellant would have been better advised not to share the legal advice it had received with the quasi-independent DAWS panel conducting its internal investigation. Considering the privilege position at the outset of any internal investigation, and structuring it accordingly, remains critically important in order for such situations to be avoided.

For a further discussion on the interaction between corporate investigations and privilege, please see our Dispute Resolution Yearbook 2022 — "Investigations and Privilege: charting a course between openness and your legal rights".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.