The case of University of Dundee v. Chakraborty  considered whether the release of the final version of an investigation report, which contained a footnote acknowledging amendments made following “independent legal advice”, meant that privilege was waived so rendering the original version disclosable.
Mr Chakraborty, a research assistant at the University of Dundee (the University) raised a grievance. The University appointed a member of staff to investigate and prepare an investigation report. The University sought external legal advice on the investigation report, resulting in amendments being made. Mr Chakraborty subsequently initiated tribunal proceedings. Only the final version of the investigation report was included in the tribunal bundle. This contained a footnote indicating that it had been revised following independent legal advice. Mr Chakraborty requested sight of the original report which the University refused, arguing that it was now privileged due to the amendments made. Mr Chakraborty applied for disclosure of the original investigation report. The case went all the way to the Scottish Court of Session (CoS).
The University had conceded that the original version of the investigation report was not privileged (any advice obtained could not have influenced the original version because that advice was sought after it had been drafted). The question was therefore whether the original version became confidential when the final version was issued because a comparison of the documents would allow Mr Chakraborty to work out what the legal advice had been. The CoS agreed that, generally, privilege will extend to material which would allow the reader to work out what legal advice had been given. However, in this case, the original report did not do that. Mr Chakraborty may only have been able to deduce what legal advice had been given as a result of the University’s footnote alerting him to the fact that changes had been made to the investigation report following legal advice. The CoS held that any privilege there had been was “abandoned” when the University shared the legal advice with its investigator and, in any event, it was “certainly lost” when the University revealed in its footnote that the original report had been altered following advice.
This case highlights that engaging external legal advisers to review and amend investigation reports will not automatically grant privilege to the resulting report and, perhaps more importantly, to earlier drafts of the report. Employers should also be careful not to inadvertently waive privilege which may exist by alerting their employees that an investigation report has been amended following legal advice.