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Legal Advice Privilege and Employment Consultants

  • Posted

[Thanks to Scott Halborg, who acted for the Appellant, for providing this summary.]

The EAT has handed down its decision in Howes v Hinckley Borough Council, which is authority for the propositions that:

  • New Victoria Hospital v Ryan, holding that legal advice privilege does not attach to the advice of employment consultants, remains good law (para 30)
  • New Victoria could, in theory, be extended so that qualified solicitors who do not hold themselves out as acting in the capacity of a solicitor (e.g. where part of a firm of employment consultants) may find that privilege does not attach to their advice (although the hurdle of holding themselves out may not be much to get over) (para 32)
  • where a document was obtained to both determine a grievance and in case of any future legal proceedings, litigation privilege would not apply to it if the subsequent litigation was not shown to be the dominant purpose of the advice. (para 42)