When disclosing privileged documents regarding specific issues, is a party required to show that other privileged documents are not relevant?
No, held the EAT in Watson v Hilary Meredith Solicitors Limited, dismissing the Claimant's appeal.
The Claimant was CEO and director at a firm of solicitors. He resigned with notice a few months after joining, having discovered issues with, and making protected disclosures about, the firm's finances. He was dismissed after refusing to return to work from garden leave. His claim of automatic unfair dismissal for making protected disclosures failed, the dismissal was not materially influenced by the disclosures, the EAT agreed. At the tribunal, the Respondent voluntarily disclosed its privileged legal advice relating to two specific issues, the timing of and reason for the Claimant's dismissal, maintaining privilege on other matters. The tribunal ordered disclosure of further privileged documents around those issues, but in terms not as wide as the Claimant sought, following assurances from the Respondent's solicitors as to what was relevant.
The EAT reviewed the authorities in this area re-stating well-established principles that a waiver of privilege on a specific matter applies to all material relevant to it; waivers cannot be selective if that would be misleading or lead to unfairness; but waiving privilege on one matter does not waive it on all matters. Here, the tribunal was entitled to refuse to order the wider disclosure sought by the Claimant. There was no need to prove that those documents sought did not relate to the matters disclosed. If that were so, any limited waiver would lead to a complete waiver of privileged material, simply to prove that the other material was not relevant. There was no unfairness in disclosing privileged material relating to specific issues, provided that there was no 'cherry picking'.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.