Are documents drafted by HR consultants privileged?

No, says the High Court in Water Lilly & Co Ltd –v- Mackay (1) DMW Developments Ltd [2012] EWHC 649 (TCC). The claimant in this case applied for an order against the second Defendant (D) to disclose, correspondence and relevant documentation, created by D’s retained claims consultancy (K).

D argued that the documentation requested attained legal professional or legal advice privilege as the parties working for the claims consultancy were qualified barristers and solicitors. However the court held that this was not enough.

The first thing the court explored was the relationship between D and K. The court noted that the retainer between D and K was for “contractual and adjudication advice”, there were no rates offered for the services of solicitors or barristers. There were neutral words used to describe some of the available services, and these were “Advocate” and “Legally Qualified Person”. Further they found the words; ‘solicitors can be retained’ suggested that these services were not included in the retainer.

The court held that the onus was on the D to establish that legal professional privilege or legal advice privilege applied and in this case this was not evidenced. The evidence was held to have established that D retained K not as barristers or solicitors but as an organisation to provide claims and project handling advice.

Further the court held that it was immaterial that Mr Mackay believed that he was dealing with practicing solicitors and barristers.

The disclosure was ordered. The judge did point out that this decision related only to legal professional or legal advice privilege, it did not deal with litigation privilege so this is yet to be tested.

This case highlights the importance of business owners/directors to instruct solicitors when taking any form of legal advice, particularly in respect to restructures which include redundancy and TUPE transfers. It is likely, moving forward, more claimant solicitors will seek applications for disclosure therefore ensure that when using any HR consultancy, there is a provision which includes the services of a ‘solicitor’ within the retainer.

If you are in a position where you are considering making redundancies or have won/lost a tender and need advice in respect to dealing with TUPE please contact me on samira.ali@scesolicitors.co.uk or 0113 350 4030 for a free initial consultation