Cherry-picking – a warning

Published: 3/10/2019

In Kasongo v Humanscale UK Ltd, the Employment Appeal Tribunal (EAT) held that an employer, in the course of relying on other privileged material to advance its case, had waived privilege in relation to redacted solicitor’s comments on a draft dismissal letter.

The risks of waiving privilege and "cherry-picking" documents to be disclosed are well-known: a waiver may extend further than intended. Lifting the protection that is afforded to privileged documents should not be done without serious consideration. A party may be required to disclose further privileged material in relation to the same issue or part of the same "transaction", in order to prevent an unfair or misleading impression forming. Kasongo v Humanscale UK Ltd UKEAT/0129/19/LA serves as a useful reminder of what to consider before waiving privilege, and to thoroughly think through the possible consequences.

Waiving privilege – a recap

Waiver of privilege and its consequences have been considered in various cases previously. The principles of most relevance to Kasongo v Humanscale UK Ltd include:

  • Brennan & Ors v Sunderland City Council UKEAT/0349/08 – the EAT provided guidance in relation to the correct approach to considering whether privilege had been waived:

    - What is the nature of what has been revealed: is it the substance, gist, content or effect of the advice?

    - What are the circumstances in which it has been revealed: has it been referred to, used, deployed or relied upon? 

  • Collateral waiver - when waiving privilege in specific documents, a party will be obliged to disclose other documents that form part of the same "transaction". This is to prevent a party from cherry-picking evidence due to the risk of the court and other parties being provided with an incomplete picture. Lord Bingham CJ in Paragon Finance plc v Freshfields [1999] 1 WLR 1183 stated the following: "A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose…While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result."

  • Mann J in Fulham Leisure Holdings Ltd v Nicholson Graham Jones [2006] EWHC 158 (Ch) suggested the following approach to decide if the disclosure forms part of a transaction or not:

    - Identify the "transaction" in respect of which the disclosure has been made. That transaction may be identifiable just from the nature of the disclosure made.

    - However, it may be clear from that material, or from other available material, that the transaction is wider than that which is immediately apparent. If that is the case, then the whole of the wider transaction must be disclosed.

    - When that has been done, further disclosure will be required if it is necessary to avoid unfairness or misunderstanding of what has been disclosed.

Kasongo v Humanscale UK Ltd – the facts
  • Ms Kasongo was dismissed from Humanscale UK Ltd on 15 February 2018, after 11 months' continuous service.
  • Ms Kasongo claimed that on 30 January 2018 she had informed Humanscale that she was or might be pregnant.
  • Ms Kasongo brought claims under s. 99 Employment Rights Act 1996 (automatically unfair dismissal for family reasons) and s. 18 Equality Act 2010 (pregnancy or maternity discrimination).
  • Humanscale denied knowledge of the pregnancy, and stated that she was dismissed due to poor performance, attendance issues, and her work attitude which had been ongoing throughout her employment.
The documents in question

Humanscale disclosed the following documents, which it believed would assist its case:

  • A note made by Ms McGrath (Humanscale's senior HR manager) of a call on 25 January 2018 she had with the company's external solicitor, seeking advice on the termination process. The note detailed the solicitor's advice concerning the lack of unfair dismissal protection, the option of payment in lieu of notice and the potential for a discrimination claim based on race.

  • An email sent by Ms McGrath on 25 January 2018 to Humanscale's in-house legal counsel, summarising the legal advice received, and stating that the company wanted to dismiss Ms Kasongo for "tardiness, attendance and quality of work."

  • A draft dismissal letter, prepared on 2 February 2018 by Humanscale's solicitors, but with the solicitor's comments redacted. Ms Kasongo, however, was somehow able to read the redacted comments and wanted to rely on them at the hearing. For example, one of the comments followed the explanation for dismissal and read: "Please double check I have this correct factually and that you are not uncomfortable with us saying any of this. The idea is to do enough to show we've not dismissed her for any discriminatory reason."

Employment Tribunal’s decision
  • The issue for the Employment Tribunal to consider was whether the solicitor's comments in the draft letter were privileged. The Employment Tribunal concluded that they were covered by legal professional privilege and therefore could not be relied upon by Ms Kasongo. The Employment Tribunal stated that the redacted comments were inadvertently disclosed, and that it would have been obvious to Ms Kasongo that she was not intended to read them.
  • It also held that Ms McGrath's email to the in-house counsel was not privileged, therefore there was no issue of Humanscale cherry-picking privileged material.
  • It failed to address Ms McGrath's note of the call with the solicitor.
  • Ms Kasongo appealed to the EAT.
Employment Appeal Tribunal

The appeal was allowed:

The documents were privileged

  • Ms McGrath's note of the telephone call with the solicitor – the EAT held that this was covered by legal advice privilege.
  • Ms McGrath's email to in-house counsel – the EAT held that this was covered by legal advice privilege. Therefore, the Employment Tribunal's conclusion that the email was not privileged and its failure to reach a decision on the note of the telephone call were an error of law.
  • Redacted parts of the draft dismissal letter – these were covered by legal advice privilege (this was never in dispute).

Privilege was waived

Humanscale, in disclosing the note of the telephone call and the email, had consequently waived privilege in respect of them. The EAT considered Brennan in determining whether privilege had been waived over these two documents:

  • The nature of what has been revealed: these documents contained the substance, gist and content of the legal advice which goes directly to the issue of the reason for Ms Kasongo's dismissal.
  • The circumstances in which the documents have been revealed: they had been used to advance Humanscale's case.

Consequently, the question to be answered was whether Humanscale could maintain privilege in relation to the redacted sections of the draft dismissal letter.

Humanscale's argument

Despite essentially admitting that the redacted letter could present a misleading or partial picture, given the content of the 25 January 2018 documents, Humanscale argued that the letter was not part of the same transaction as the 25 January 2018 documents. It claimed there was a clear distinction between the 25 January 2018 legal advice, and the advice on the wording of the draft dismissal letter. Humanscale argued that, because the letter was not part of the same transaction, it was not affected by the waiver of privilege in respect of the 25 January 2018 documents.

EAT's decision

Unsurprisingly, the EAT considered the distinction advanced by Humanscale to be wholly artificial; the three documents were all part of the same transaction - the giving of legal advice regarding the dismissal of Ms Kasongo. A six day gap between the documents did not change this. The EAT therefore ordered that the un-redacted draft dismissal letter be included in the hearing bundle.

Closing remarks

The full merits hearing of Kasongo v Humanscale UK Ltd was scheduled for 17 and 18 September 2019, but the judgment has not yet been published. If the case turns on the redacted comments on the draft letter, Humanscale may regret its decision to waive privilege over documents it thought would advance its case. While this case does not establish any new principles, it emphasises the need to consider which documents fall within the same "transaction" – if you waive privilege over one document within a transaction, would you be happy with disclosing the rest?

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