It’s been a privilege!

15 March 2018

The law on legal privilege has always attracted attention and was an issue in the very recent health and safety case of R v Paul Jukes in the Court of Appeal.

What is legal privilege?

Privilege entitles a party to withhold written or oral evidence from a third party or a court. There are two main types of legal privilege; legal advice privilege and litigation privilege. Legal advice privilege extends to communications between a lawyer and client; e.g. emails where your lawyer is advising you on the merits of a case. Litigation privilege can apply to communications by a client or his lawyer and a third party; e.g. witnesses/employees.

Why is this relevant?

In many health and safety cases lawyers will investigate accidents on behalf of their clients, partly to ensure that such information is included under the umbrella of privilege. In the Juke case, counsel attempted to argue that communications between lawyers and a relevant witness (whose statement had been taken as part of an investigation) were covered by litigation privilege so they should not have been disclosed to the court.

The Court of Appeal disagreed.

Why did the Court of Appeal rule as they did?

A document will only attract litigation privilege if three conditions are satisfied:

  1. Litigation is in progress or reasonably in contemplation.
  2. The relevant communication or document is made or created with the sole or dominant purpose of conducting that litigation.
  3. The litigation is adversarial, not investigatory or inquisitorial.

The Court of Appeal concluded that at the time the statement was taken no decision to prosecute had been taken by the HSE and matters were still at the investigatory stage. An investigation is not adversarial litigation. As Andrews J said in Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 QB, [2017] 1 WLR 4205 at [154]: “Criminal proceedings cannot be reasonably contemplated unless the prospective defendant knows enough about what the investigation is likely to unearth, or has unearthed, to appreciate that it is realistic to expect a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction. Of course, a person who knows that he had committed a criminal offence may reasonably anticipate that if certain facts come to light, a prosecution is likely to follow, even if there is no investigation currently underway.”

Does this apply to all accident investigations?

Not necessarily. It is a question of the particular facts and context of the case. It is still possible that, in some cases, litigation privilege could attach to communications/ statements given by witnesses in accident investigations.

How should health and safety accidents be investigated?

In our experience, most corporates still investigate their own accidents. Assuming the investigations are done well, this can be an effective tool for near misses or minor incidents. Of course, this would not attract any time of privilege so would be fully disclosable to the HSE. It is often the first thing they ask for when investigating accidents.

Our advice remains that it might be preferable to instruct your lawyers to investigate serious or complex incidents/accidents. It is likely that much of this investigation would attract privilege, which could prove beneficial. The question mark is simply over communications with third parties and whether these would be privileged; assuming you work on the basis that they would not, there is little risk.

We offer training courses on how to effectively investigate accidents, as well as offering a full and expert service to investigate serious, complex or indeed any accidents or incidents. Our 24 hour contact number is 0800 954 3771.

The content of this article is for general information only. For further information regarding this article, please contact a member of Birketts' Health and Safety Team.

This article is from the March 2018 issue of Health and Safety Help!, our newsletter for professionals tasked with health and safety matters. To download the latest issue, please visit the newsletter section of our website. Law covered as at March 2018.

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