Nicholas Siddall KC considers the recent decision of the EAT in Trentside Manor Care-v-Raphael  EAT 37 and the learning it provides on the issues of Legal Advice Privilege (“LAP”), Litigation Privilege (“LP”) and their application to non-lawyers working under the alleged supervision of qualified lawyers.
In 2018 I penned an article addressing the extent to which LAP could be claimed by a HR consultancy which was part of the law firm. The article arose from a first instance decision in which I had successfully appeared on behalf of a Claimant who successfully challenged LAP on the basis that an HR consultant was not a qualified lawyer and that in the absence of evidence as to lawyer supervision that LAP could not be made out as regards the contents of certain pieces of advice. At that time I expressed my view of steps that law firms could take in order to be able to assert and evidence the existence of LAP where they engaged non-lawyer HR advisors. I then observed that there was no binding authority on the issue.
My then conclusion was “in circumstances where a law firm offers an HR function the availability of LAP will depend on the regulatory and professional organisation of the department and this is an issue which parties shall be required to be able to evidence in order to make an assertion of LAP viable.”
The purpose of this article is to assess the extent to which that view remains correct following Trentside.
The facts of Trentside were materially identical to the matter in which I earlier appeared. The one difference is that the advisors in question were not employees of a law firm but instead of a well-known employment consultancy. The consultancy enjoyed an SRA waiver and was organised into teams where there were qualified lawyers at the top of the same but some of the staff working thereunder were not qualified lawyers. Essentially the Employment Tribunal had found that the evidence deployed by the employment consultancy was insufficient to demonstrate the requisite degree of supervision by lawyers to render LAP applicable. The evidence displayed that the advice was not given by solicitors and did not address whether they were in fact part of a team supervised by a lawyer. It was thus a decision very much based on its own facts. However HHJ Auerbach made a series of useful comments which shall be of interest to organisations which operate a mixed working method similar to that of employment consultancies (or law firms which offer a linked HR function) and wish to be able to seek to assert LAP as regards their advice to clients.
The EAT’s Guidance
The EAT provided useful guidance on the following issues:
Here the EAT said that a procedure of inspection of documents by the Employment Tribunal should be the course of last resort. Instead a statement should be prepared by the party asserting LAP of the following sort.
“46. The appropriate starting point is for the party asserting privilege to be required to provide a sworn statement explaining on what basis it is asserted and including, with as much specificity as can be provided without compromising the privilege, information about the nature of the documents at issue. Such a statement will not necessarily always be determinative, but it should be treated as such unless, on its face, or from other evidence or material before the court or tribunal, it is reasonably apparent that privilege has been or may have been claimed on a legally incorrect basis, the nature of the documents has been incorrectly represented or the statement is materially incomplete. In a case where the tribunal considers that the statement should not or not yet be treated as conclusive, there are a number of further steps it may take to address that issue. These might include, as appropriate, requiring the party asserting privilege to provide a further statement with more information or clarification, inviting representations and/or requiring the party asserting privilege to provide copies of the documents to the tribunal itself to assist in determining the issue. But the starting point should be the provision of a sworn statement.
On the facts legal advice had been sought to seek to avoid the possibility of a claim. The Employment Tribunal had found that this was insufficient to render litigation reasonably to be in contemplation. The EAT stated that this was a permissible conclusion and offered this observation.
“56. The mere fact of taking advice on issues which may be said to have a legal context and could in principle be the subject of employment tribunal proceedings is not enough, nor is the fact that the issues may be complex, or that if the employer gets them wrong and there is successful litigation, significant compensation could be awarded. Those may all be good reasons for getting advice, but it cannot be said that the employment tribunal was wrong not to treat these features as by themselves pointing to the conclusion that in this case litigation was reasonably in prospect, still less that the prospect of litigation was the dominant purpose of seeking the advice. Wishing to minimise the risk of litigation occurring, or of being unable successfully to defend litigation if it does occur, is not the same as litigation being reasonably in prospect.
Here HHJ Auerbach commented on the hypothetical requirements if a non-lawyer were successfully to assert LAP on the basis of supervision as follows.
“72 …If the advice, as it were, comes out of the mouth of someone who is not a qualified lawyer, that will therefore only attract legal advice privilege if the circumstances are such that the advice nevertheless falls to be treated as the advice of the lawyer concerned. Where a firm of solicitors is involved, that is so because the client is getting advice from the firm and its qualified partners or directors. Their employees act as their agents. In the present case there was no sufficient basis to say that the non-qualified advisers in the team were the agents of the head of the team or the other solicitors who were managers within the team. “
The EAT recognised that there was a wider point which did not arise on the facts of this matter but which may merit further discussion in due course
“80 … The starting point is the discussion in Prudential, focussing on the reasons why it was accepted the privilege should be confined to advice by qualified and regulated lawyers unless or to the extent that Parliament decides otherwise. The commentaries in the textbooks situate the issue of supervision in accordance with regulatory rules within the context of an overriding question as to whether the advice given falls to be treated as the advice of the lawyer, whether that is described as being by conventional agency or some analogous route. These are also limited commentaries, with citation only of one authority from the Canadian jurisdiction, which was not available to me at this hearing or further considered.
Once again the reason why the wider point did not arise was the limited evidence in fact put before the Employment Tribunal
“87. I come back then to the way in which this matter was argued before the employment tribunal, being that what was said to be relevant was that the non-legal advisors were acting under the direction and general supervision of the lawyers. But the team was an HR and Employment Law department, and the giving of legal advice was not enough. It was not suggested to the tribunal that they were branded as a legal team or a team of lawyers, and indeed they could not have been. For all the ground covered by Ms McAteer’s statement, there was no evidence that whoever the respondents spoke to was in fact managed by a qualified lawyer or whether, in relation to the advice given, any such lawyer had any knowledge of, or input into, that particular advice on the particular occasion or occasions.”
In the light of the above points the EAT was keen to make clear that it was not stating employment consultants could never properly assert LAP
“91. First, it is important to reiterate that the matter is very fact-specific. What I have had to decide is only whether this tribunal decision erred in law in respect of the particular facts presented to it, as to the advice obtained by these respondents from Citation Ltd in this particular matter, during the specific time window during 2018, and having regard to what the arrangements with Citation Ltd were at that time. I have also had to decide only whether it erred having regard to the evidence before it about that, and the way in which the legal arguments were presented to it. Different facts in another case, whether in relation to advice given by this organisation, or some other organisation, may lead to a different conclusion in respect of either privilege. I have also noted that there are some points of law that I have not had to resolve in order to determine this appeal, but that may merit more detailed examination on another occasion.”
The effect of Trentside is (happily) to endorse the correctness of the views I previously expressed. It however does suggest that detailed evidence shall be required from an organisation which employs non-lawyers and seeks to assert LAP of the nature and degree of the supervision operated such that it can properly be said that the advice is rightly to be treated as that of a lawyer. Further the scope of LAP and its interaction with the concept of agency may merit greater legal analysis in a different case.
Nicholas Siddall KC is a leading employment silk and undertakes all facts of statutory and High Court employment work.