Why You Should Rely on Lawyers for Your Legal Advice (And We Are Not Just Saying That – Honest!)
Friday 28th October 2022
The reason is that advice from non-lawyers is not covered by legal advice privilege as concluded by the Employment Appeal Tribunal (EAT) in the case of Trentside Manor Care Limited & others v Raphael (2022).
The Claimant applied for disclosure of documents relating to communications between the Respondents and their advisors from the date she made a flexible working request to when she was dismissed.
The Respondents claimed that the documents were protected by both litigation privilege and legal advice privilege. However, the advisers were not a firm of solicitors and the individual client advisers were not legally qualified, despite having a HR & Employment Law advice team.
The Employment Tribunal (ET) directed that disclosures should be made to the Claimant’s solicitors, but not to the Claimant herself, for the purposes of determining whether privilege applied. The ET held that litigation privilege did not apply to the advice given that legal advice privilege did not apply either. The Respondent appealed to the EAT.
The EAT only allowed one part of the appeal. It held that the order for the disclosure of documents to determine the privilege issues was not a proper exercise of the ET’s case management discretion and was wrong in principle.
The EAT did conclude, however, that the ET was not wrong to state that the giving of advice by non-lawyers was not covered by the legal advice privilege.
The legal privilege rules are complicated and nuanced. This comes as a reminder that not all advice falls under the privilege rules. Certain non-contentious and general advice may not be needed to be given under privilege but if in doubt, and you want legal privilege to cover the advice – mark any correspondence as “legally privileged” and contact one of our team!