University of Dundee v Mr Prasun Chakraborty: A Study in Client Privilege

In a recent case passing through the Employment Appeal Tribunal, University of Dundee v Mr Prasun Chakraborty, a question regarding the management of cases undergoing tribunals and legal advice came up when the Claimant requested an unrevised version of a document filed with the courts. The Appellant claimed the document was subject to “legal advice privilege” in retrospect, as the edited version was made with confidential legal advice and comparisons could be made to glean insight.

But what does any of this actually mean? Could producing a draft of a document really infringe on someone’s rights?

Background

Discrimination and Harassment

Mr Prasun Chakraborty is a research assistant working at the University of Dundee, working in the School of Medicine. He raised an official grievance with the university under the university’s Dignity at Work and Study policy, alleging facing racism, bullying, and harassment for his Indian background.

The University’s policy states it is “committed to providing and maintaining an inclusive, accessible and positive learning and working environment that is free from unlawful discrimination and any forms of harassment, bullying or victimisation”. The policies outline not only how the university expects its members to behave, but also how it would respond to such a grievance.

The EAT’s Judgement on the appeal does not go into details on the exact nature of the grievance, but we understand it pertains to not only the harassment claim, but a false allegation of fraud (possibly, again, with a racial motive) as well. The reason we have no further details on the exact nature of the case, besides the ones raised in this judgement – which claim that Mr Chakraborty’s case pertains to “allegations of harassment and bullying” and “a suggestion that the line manager had made a false accusation of fraud against the Claimant” – is because this is a judgement on the procedure of an ongoing case.

We do not know when to expect the conclusion of the harassment trial will finish, but for the purposes of this article, we are interested in what the University of Dundee alleges happened next.

As part of its investigation into the allegations made by Mr Chakraborty, on November 30th 2021, the University of Dundee’s Head of Equality and Diversity appointed an independent investigator to carry out an investigation into his complaints. They selected Professor Niamh Nic Daeid, who worked in the University’s School of Science and Engineering.

As someone who did not work in the same department or directly with Mr Chakraborty or his line manager, Prof. Nic Daeid was suitably independent and capable of carrying out her investigation with as few biases towards the individuals involved as possible.

So far, so good.

With assistance from the Human Resources department at the university, Prof. Nic Daeid carried out a formal investigation of Mr. Chakraborty’s claims. She carried out interviews with witnesses and gathered every document she could find that she believed pertained to the case – again, we don’t know what she collected, but we can assume as HR professionals that she collected items like:

1. communications, like emails
2. invoices
3. timesheets, or
4. whatever other evidence might prove one way or the other that a) Mr Chakraborty was dealing with racial abuse and bullying from his line manager, and b) that proved one way or the other whether the allegation of fraud was true.

Employment Tribunal

On the 21st December 2021, an official claim was made with the Employment Tribunal Courts. This now meant that the matter was not an internal, formal matter, but a civil, legal one, and in response the University of Dundee would have reached out to its legal team, and the final legal representative in the case Mr. Brian Napier, in order to deal with the case as a legal matter.

An important thing to note at this point is that we can’t know what was said between the University representatives and their legal department. Everyone in the UK, regardless of whether they are an individual or a large corporation, is entitled to be able to speak freely with their own legal team and have that discussion legally protected as confidential. The reasons for this are broad, but the general idea is that a solicitor can only give accurate legal advice if the client provides all the details of their case. Therefore, in order to ensure that everyone involved in a case has a fair trial, communications between solicitors and their clients are confidential (though, as we’ll discuss, there’s a strict definition of what precisely is protected).

On the 28th February 2022, Prof. Nic Daeid completed her investigation and submitted it to the University, which they immediately submitted to their legal team. In a series of back-and-forth meetings with Prof. Nic Daeid, the university’s representatives and Mr. Napier, Prof. Nic Daeid and the legal team made amendments to the report before it was added to the bundle of documents being presented to the courts prior to the evidential hearing.

Then, Mr Chakraborty made the request to see the original document Prof. Nic Daeid submitted to the university, prior to the legal team’s involvement in amending it. The University’s legal representative Mr. Napier argued at that point that he couldn’t provide the unamended document and would choose to withhold it.

Discovery and Disclosure

To condense a very complicated legal process, the appeal was filed during a portion of legal procedure known as disclosure. If you are fond of US Legal dramas or practiced law before April 1999, you might also know this process as discovery, though we don’t use that term any more. Disclosure is a procedure where both sides of a civil dispute request to inspect particular documents they believe the opposing side has that might be of interest to their case. For example, if a discrimination case involved a work Whatsapp group chat that participated in a discriminatory harassment campaign against someone else, that person’s legal team would be able to request to see any Whatsapp messages from said group chat.

A failure to properly observe the rules of disclosure can carry a charge of contempt against the court, so it’s vital that it’s done properly. If either side wishes to refuse to hand over a particular document, it must make its case to the court – and that’s precisely what’s happened here.

When asked why he refused the disclosure request, Mr. Napier argued that if he provided the original document, then Mr Chakraborty would be able to compare the two documents. In doing so, he might be able to fathom what advice Mr. Napier provided the university, and therefore, it would be in breach of his client’s right to client-solicitor privilege. Therefore, in retrospect, the original document was confidential and could not be provided via disclosure.

The Judge denied the claim, and Mr. Napier appealed, leading to this case in particular.

Facts

Following the story, we find the facts of the case are as follows;

• Chakraborty alleges that his line manager, a professor at the university, had been using his race to bully, harass and abuse him.
• Said line manager also made an allegation of fraud, which Mr. Chakraborty denies.
  1. As he brought it up during his discrimination case, he believes that the allegation is part of the harassment campaign.
• We do not know either way if the claim is legitimate.
• The university responded in line with its own grievance policy, assigning an uninvolved third party to investigate the claims.
• The third party began writing a report into the grievance following interviews and evidence-gathering.
• Before the report was finished, on the 21^st December 2021, Mr. Chakraborty filed a claim with the Employment Tribunal.
• On the 28th February 2022, the third party completed their report.
• Responding to the legal challenge, the third party’s report was redrafted following advice from the legal department.
• The third party also made a few minor changes for an unknown reason.
• Only the edited second draft was filed.
• Upon hearing that only the draft written following legal advice was filed, Mr Chakraborty requested to see the first draft.
• The university denied on the grounds it would breach their right to confidential legal advice.

Outcome

Questions raised by Appeal

The circumstances of the appeal naturally bring up 2 key questions:

• Can comparing documents violate the right to confidential communication between a client and solicitor when the edits between documents are made based on legal advice?
  1. And, if so, are the edits made based on legal advice distinct enough from edits made for other reasons (for example, if Prof. Nic Daeid clarified a sentence she thought was unclear) to qualify?
• And, even if it does qualify, can you apply this classification to documents retroactively?

The Judge argued no on both counts.

Definition of Legal Advice

For the first question and its follow-up, we need to discuss what exactly is classed as confidential legal advice. It has to meet the following criteria:

• Legal advice must be given by a lawyer. This seems obvious, but cases have appeared where clients have argued that other professionals providing advice, such as accountants, counts as receiving legal advice. Whether or not the advice given is legal in nature, the advice-giver must be a lawyer who is acting in their professional capacity as a lawyer. In this case, there was no objection. Mr. Napier is a fully qualified and highly respected barrister.
• Legal advice must be given to the client. That is, only advice given to individuals authorised to seek legal advice in regard to the given matter. The important key here is individual. Another person who works with or for an authorised individual, but who is not authorised to receive legal advice (for example, someone working in the same department), is not the authorised client. In this case, Prof. Nic Daeid would have been authorised to act on the University’s behalf and ergo authorised to seek advice from Mr Napier. This is not in question.
• Is the legal advice provided as part of a communication? This is where the argument falls short. In order to be protected, the legal advice must be part of a communication between both sides. This can be written or oral communication, emails, phone-calls, messages, even physical modes of communications like gestures, nods, or expressions, or passing documents between one another. Whether Mr. Chakraborty could guess at what might have been said, the inferences made by him or his legal team are not the actual communications had between Mr. Napier and Prof. Nic Daied.

But to keep interrogating the matter further, raw materials such as factual summaries, and Prof. Nic Daeid’s report, are not included in the privilege rules either. Now, that isn’t to say that there are no protections available for such documents. Sometimes, these summaries might fall into another bracket of confidentiality called litigation privilege.

However, the judge was quick to point out that only the amended report would be protected regardless – work on the original document started before it even became a legal matter, for the purpose of following internal grievance policies and procedures, and it would be entirely within Mr. Chakraborty’s rights to request to see it.

So, with our answer to question 1. answered – even if an inference could be made, inferring what might have been legal advice is not the legal advice itself – what about question 1.a? Could it be assumed that the changes made on the basis of legal advice are distinct and recognisable enough that they could be told apart from the other changes Prof. Nic Daeid made?

The judge argues not. Consider a situation where a client is mouthing off at the judge in court. The solicitor pulls the client in and quietly says something in his ear after ensuring no-one can overhear what was said, and the client calms down, lowers his voice, and begins behaving more cordially. A number of inferences could be made about what was said or why it was said.

• Perhaps the solicitor warned him that he might stray into being in contempt of the court process, which would be legal advice;
• Perhaps he’s simply warning the client that his behaviour makes him seem guilty, which is also arguably legal advice; or
• He might even be complaining the yelling is giving him a headache, which is not.

There’s no way of being able to distinguish legal advice from other reasons for a change.

Did Prof. Nic Daeid alter a sentence, for example, from active to passive voice because it made the University seem less liable than it was, or did she do it because the new sentence was easier to read and gave a more accurate picture of the events that took place? It’s impossible to say, and because it would involve the disclosure of legal communications to prove either way, neither Mr. Napier nor Prof. Nic Daeid can be compelled to explain their reasoning for the changes either.

Retroactive Privilege

Finally, onto Question 2 – does the report become retroactively privileged because of the involvement of its altered version in the litigation between the University of Dundee and Mr. Chakraborty? The Judge argues not. In the examination of the cases Mr. Napier offered as evidence, the Judge concluded that none of the definitions we have already discussed, nor any of the caselaw relevant to the case, positively affirm that any retroactive privilege can be applied to a document.

Given the burden of proof for such a claim is on the person making said claim, The Judge dismissed the appeal.

What next?

We haven’t heard the outcome of the original case yet – this judgement passed only a few weeks ago, and so it’s likely more rounds of disclosure, hearings and judgements will be involved. However, as we hope you’ll see, cases involving investigations can become very difficult to navigate without the proper advice and guidance if and when they turn litigious. When tribunals arrive, you need experts on hand who know the law extremely well and can help you collect, create, control and classify documents properly.

How we can help

HR and You are extremely familiar with tribunals, policy, and procedure. Our HR Advisors are fully qualified and trained in the nitty gritty of employment tribunal procedures, and we have trusted Employment Lawyers to provide confidential legal advice with decades of experience on hand to guide you. If you need any employment litigation advice, please do not hesitate to give us a call on 0333 006 9489 or email us at [email protected] and we would be more than happy to point you in the right direction.