The claimant issue claims at the ET in 2007, alleging unlawful race discrimination, victimisation and harassment against the respondent. In 2008, he withdrew the claims by reason of a compromise which was reached with the help of his solicitor. The agreement recorded that the claimant's employment would terminate by reason of redundancy and provided for a termination payment and immediate access to his annual pension. The claimant then applied for the compromise agreement to be set aside so that he could pursue his earlier claims. He claimed that the compromise agreement was vitiated by misrepresentation or non-disclosure. The EJ ordered that the claimant pay a deposit of £500 because his claim had little prospect of success. The EJ later made an unless order which ordered the claimant to reduce the number of documents in the bundle so that they related only to a short period during 2008. The claimant failed to comply, the claim was struck out in its entirety and a review application was refused. The claimant's application to amend his claim was refused. Another appeal concerned the ET's order that the claimant disclose the contents of his file obtained from his former advisor during the relevant period in 2008. The claimant appealed.

The EAT upheld the strike out order appeal. Striking out the claim was a disproportionate sanction, given the nature of the underlying order. The deposit order was upheld as was the refusal of permission to amend the claim. The order for disclosure of privileged documents was discharged. Focus should have been on legal professional privilege rather than "without prejudice" privilege.
_____________________

Appeal No. UKEAT/0618/11/SM, UKEAT/0619/11/SM, UKEAT/0620/11/SM, UKEAT/0621/11/SM, UKEAT/0622/11/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 8 May 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON (SITTING ALONE)

MR F LABINJO (APPELLANT)

THE UNIVERSITY OF SALFORD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR LINCOLN CRAWFORD OBE (of Counsel)

Direct Public Access

For the Respondent
MS RACHEL WEDDERSPOON (of Counsel)

Instructed by:
Messrs Pinsent Masons Solicitors
3 Hardman Street
Manchester
M3 3AU

PRACTICE AND PROCEDURE

Deposit Order - upheld.

Striking out order - discharged: striking out the claim was a disproportionate sanction, given the nature of the underlying order.

Refusal of permission to amend - upheld on different grounds.

Order for disclosure of privileged documents - discharged. Focus should have been on legal professional privilege rather than "without prejudice" privilege.

1. I have before me five appeals against interlocutory decisions of the Employment Tribunal sitting in Manchester, all dealing with aspects of a claim brought by Mr Felix Labinjo ("the Claimant") against the University of Salford ("the Respondent").

1. The Appeal Tribunal hears appeals only on points of law: see section 21(1) of the Employment Tribunals Act 1996. The role of the Appeal Tribunal is therefore a limited one.

1. Where a Tribunal is considering questions which are essentially factual, the Appeal Tribunal is concerned to see whether the Tribunal has applied correct legal principles and reached findings and conclusions which are supportable, that is to say not perverse, if the correct legal principles are applied. A finding or conclusion is perverse if and only if it is one which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.

1. Where a Tribunal is taking a decision which is essentially discretionary, such as a case management decision, the Appeal Tribunal's role is again circumscribed. The test to be applied was stated by Henry LJ, with whom Beldam LJ and Thorpe LJ agreed, in Noorani v Merseyside Tec Ltd **[1999] IRLR 184, at paragraph 32:

"These decisions are entrusted to the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised the discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters, or where the conclusion reached was "outside the generous ambit within which a reasonable disagreement is possible", see G v. G [1985] 1 WLR at 647. "

1. The first two appeals concern the prospects of success of the Claimant in his claim, and serve also as an introduction to the issues which he wishes to pursue. By a judgment dated 4 August 2010 Employment Judge O'Hara, while declining to strike out his claim on the grounds that it had no reasonable prospect of success, ordered him to pay a deposit on the grounds that the claim had little reasonable prospect of success. By letter dated 10 March 2011 she refused an application to review that part of her judgment. The Claimant challenges those decisions.

1. The Claimant was employed by the Respondent as an associate lecturer and then lecturer. His employment began, according to his claim form, on 12 November 1993. In November and December 2007 he issued claims in the Employment Tribunal at Manchester alleging unlawful race discrimination, victimisation and harassment against the Respondent. He remained employed by it. The claims were listed for hearing starting on 21 July 2008.

1. On 14 July 2008, however, the solicitor then acting for the Claimant, Ms Pat Wilkins of Bennet Wilkins, withdrew the claims by reason of a compromise. A written compromise agreement was reached between the parties. The agreement recorded in a recital that the Claimant's employment would terminate on 31 July 2008 by reason of redundancy; and provided for a termination payment of £68,500 together with immediate access to his pension (he was then 57) – a lump sum of £24,299 and an annual pension of £8,099.

1. In the current set of proceedings the Claimant seeks a finding that this compromise agreement should be set aside (so that he can pursue his claims for race discrimination, victimisation and harassment). It is not in dispute before me today that the Employment Tribunal has power to determine whether the compromise agreement was vitiated by misrepresentation or non-disclosure, applying normal contractual principles.

1. The principal basis of his claim is that the Respondent provided misleading information to his solicitors.

1. In his claim form it is put as follows:

"4. Believing (a) the University's assertion that a redundancy had occurred in the Claimant's area of work and (b) that it had calculated the Claimant's pension from his true date of his departure, the Claimant compromised his claims.

6. In truth and in fact, there was no redundancy and the information provided to the Claimant's solicitor was misleading. Accordingly, the said compromise agreement is invalid and unenforceable.

PARTICULARS

(a) In the Preamble to the Compromise Agreement, the University stated in paragraph (B) that the Claimant's employment with the University was terminated on the '31 July 2008 by reason of redundancy'.

(b) There was no redundancy in relation to the Claimant's employment as a lecturer in the Business School of the University that warranted his dismissal.

(c) No notice was ever given to the Claimant by the University that a redundancy situation had developed and that he was selected for redundancy.

(d) No attempt was ever made by the University to find the Claimant a suitable alternative post, due to the alleged redundancy within the Business School.

(e) No redundancy payment was made to the Claimant who was a lecturer at the University for over 15 years."

1. In a witness statement the Claimant said:

"5. Prior to the hearing of my claim which was fixed for 10 days at the Manchester Employment Tribunal beginning on the 21 July 2008, both my solicitor and the University solicitor were in communication. My solicitor was informed that my post in the Business School had become redundant and that even if I were to succeed in my claim there would be no work for me as my post as lecturer no longer existed. The University offered to purchase, at a cost of £28,000 added years in relation to my pension which would treat me, for pension purposes, as aged 60 rather than 57. The added years would give me a lump sum of £24,299 under the pension scheme and an annual pension of £8,099 per annum.

7. I accepted as true, the University's claim that the lectureship post I held had become redundant. In fact, that statement was untruthful. Had I been told the truth, namely, that my employment was being terminated because I brought a claim for race discrimination against the University, I would not have compromised my claims and if I did, it would have been on very different terms. As a result of the conduct of the University, I feel completely deceived, because I genuine believed that there was a redundancy when my solicitor signed the compromise agreement on my behalf."

1. The Respondent accepts that the Claimant was not redundant in the true legal sense of the word. The Respondent's case was put as follows in its response form:

"7.1 The Respondent acknowledges that the Compromise Agreement contains a statement that the Claimant's employment was terminating by reason of redundancy. However, the Respondent will say that this statement formed part of the recitals to the Compromise Agreement and was not an operative provision of the Compromise Agreement;

7.2 In any event, if the Claimant wished to contend that he was not being dismissed by reason of redundancy, the time to make that contention was prior to entering into the Compromise Agreement. The Respondent notes that employees often prefer to label their dismissal as being by reason of 'redundancy', rather than state the real reason;

7.3 The Claimant made no such contention at the time of entering into the Compromise Agreement and there is nothing which has come to light since the Claimant entered into the Compromise Agreement to suggest that the Respondent hid the true state of affairs. Indeed, by the Claimant's own admission, the facts that he now relies upon to support his argument that he was misled regarding the reason for his dismissal must have been apparent to him (or his adviser) at the time of entering into the Compromise Agreement, namely:-

7.3.1 that there was no redundancy situation;

7.3.2 that notice of redundancy was not given;

7.3.3 that there was no search for alternative employment for the Claimant;

7.3.4 that the Claimant did not receive a redundancy payment."

1. There is a secondary basis to the Claimant's claim. He was given figures relating to his pension which were calculated as at 31 August 2008. He says this ought to have been disclosed; the correct figures for 31 July 2008 ought to have been obtained; and his pension would or might have been better.

1. There was a pre-hearing review before Employment Judge O'Hara, at which she considered whether to strike out the claim as having no prospect of success, or order a deposit because the claim had little prospect of success. She declined to strike out the claim on the former ground. The Respondent appealed against that decision, but its appeal was rejected under rule 3(7) of the Employment Appeal Tribunal Rules 1993 by His Honour Judge Serota QC and has been taken no further.

1. However she ordered a deposit of £500 on the latter ground. Her reasoning was as follows:

"7. The Tribunal does however consider that in the absence of evidence on the allegations which are being put forward by the claimant today (and which were not made clear in the originating application) in particular the assertion that the respondent in some way induced the claimant into signing the compromise agreement by 'threatening his solicitor in the days leading up to the hearing of the earlier claim that the claimant's post was about to be made redundant' was not made clear in the originating application. Furthermore on the basis of the witness statement provided today together with submissions from Mr Crawford the Tribunal doubted the cause or connection between this assertion even if the claimant was able to prove it and his subsequent decision to enter into a compromise agreement. This doubt emanates from the fact that the claims brought in those proceedings did not relate to the threat of dismissal and that any compromise of those claims would not necessarily therefore be related to termination of the claimant's employment. Furthermore the Tribunal finds that there is no mention of this allegation in the correspondence which it has seen today and which is contemporaneous with the events leading to the signing of the compromise agreement."

1. The Employment Judge made this order pursuant to rule 20 of the Employment Tribunal Rules 2004 (Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure Regulations 2004). Rule 20(1) provides:-

"At a pre-hearing review if an Employment Judge considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success, the Employment Judge may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter."

1. Mr Crawford, who appears for the Claimant today as he has done below on several occasions, submits that the deposit order ought not to have been made. He says it was premature to make a finding that the claim had little prospect of success; that Judge Serota's refusal to hear an appeal on the striking out question supports his case; that it was never part of the Claimant's case that his solicitor was threatened by the Respondent's solicitor; and that the Employment Judge ought to have considered what he described as the alternative issue, namely whether redundancy was the reason for termination of the contract of employment.

1. I asked Mr Crawford how the Claimant proposed to prove that his solicitor had been informed that his post had been made redundant and that even if he were to succeed in his claim there would be no work for him as his post as lecturer no longer existed. He referred to Statutes of the University (which made provision as to redundancy) and to some documents in which the Respondent said to third parties that the Claimant was redundant; but in the end he was constrained to accept that the key evidence for the Claimant would have to come from his solicitor.

1. On this part of the case my conclusion is as follows.

1. In my judgment the critical issue in the proceedings is whether the Claimant can make good – that is to say, provide evidence – of what he says in paragraphs 5 and 7 of his witness statement, especially paragraph 5. If what he says is true, and he was told that even if he were to succeed in his claim there would be no work for him as his post no longer existed, and if he was induced by this to enter the compromise agreement, then he would have substantial prospects of success in his claim.

1. What the Claimant says does not prove itself. The Respondent says that the Claimant's solicitor was not told anything of the kind; that no steps had been taken to make the Claimant redundant; and that in reality both parties knew that his employment was terminating as part of the compromise. Certainly it is common ground that no overt steps had been taken to make the Claimant redundant; and it is to be noted that in an email the Claimant's solicitor said to the Respondent's solicitor that the Claimant "… would like a negotiated and dignified departure to be arranged" (3 July 2008).

1. How will the Claimant prove the key point in his case? If he calls his solicitor, Ms Wilkins, and she gives evidence to the effect of paragraph 5 of his witness statement, then of course he would be on strong ground. But he had at the time of the pre-hearing review, and still has, no witness statement from Ms Wilkins to put forward. I cannot see anything in the many documents in my bundle, whether they were before the Employment Judge or not, which evidences the representation to his solicitor which he alleges.

1. In my judgment this is the point which Employment Judge O'Hara was making in paragraph 7 of her reasons. It is true that she referred to the Respondent in some way inducing the Claimant into signing the agreement "by threatening his solicitor"; but this I have no doubt was a reference to paragraph 5 of the witness statement: an assertion that the Claimant would in any event lose his job through redundancy would, if it were made, in effect be a threat to induce him to settle.

1. In my judgment the Employment Judge was correct to say that, in the absence of evidence to support paragraph 5, the Claimant's claim has little reasonable prospect of success. This was the key point in her reasoning, and in my judgment it justified her decision. I see no error of law in her conclusion.

1. Contrary to Mr Crawford's submission, I do not consider that the Employment Judge's decision was premature. The purpose of considering whether there is "little reasonable prospect of success" at an interlocutory stage is to expose weak cases before the expense of a final hearing is incurred. This is to the advantage of both parties; and it is in accordance with the overriding objective (see reg.3 of the 2004 Regulations). If the Claimant has not acquired the evidence to support his case before he begins it, he cannot complain if this is pointed out to him when he still has time to do something about it. The deposit of £500 is a small price to pay for learning that a key element of his case requires attention.

1. Judge Serota's rejection of the Respondent's appeal, which related to the different question whether there was no reasonable prospect of success, is not inconsistent with a finding that there is little reasonable prospect of success. Nor do I think there is an "alternative" issue as to whether redundancy was the reason for dismissal. It is not enough for the Claimant to show that redundancy was not the reason for dismissal: this indeed is conceded. The question is whether there was a misrepresentation which entitles him to avoid the agreement.

1. Following the judgment dated 4 August 2010 the Claimant applied for a review. He relied on what he described as fresh evidence: in particular there were documents showing or tending to show that after the compromise agreement the Respondent said to third parties (a pension fund and HMRC) that the Claimant's employment was terminated by reason of redundancy. The Employment Judge, after some delay, rejected the application for a review on a number of grounds, including that the application was out of time and that she did not consider it just and equitable to extend time. Most importantly, she said that the fresh evidence did not show that the claim has more than little reasonable prospect of success.

1. Mr Crawford has attacked various grounds which the Employment Judge gave for refusing a review. The key issue, to my mind, is the Employment Judge's evaluation of the evidence which the Claimant wished to adduce.

1. In my judgment the Employment Judge did not err in law when she concluded that the further evidence on which the Claimant relied did not show that the claim had more than little reasonable prospect of success. The issue is whether, prior to the compromise agreement, the Respondent's solicitors represented to the Claimant's solicitors that he would in any event, whatever the result of the Tribunal hearing, be made redundant as at 31 July. The fact that, after the compromise agreement, the Respondent said to third parties that the employment was terminated by reason of redundancy, will not prove this. If the Claimant adduces evidence as to what happened between the solicitors, and the evidence proves to be in conflict, then what happened after the compromise agreement may perhaps be a supporting point for him; but it is not a substitute for evidence as to what happened between the solicitors.

1. I turn then to the next aspect of the case – the making of an "unless order" by order dated 5 July, the recording of a judgment on 20 July striking out the claim in consequence, and a subsequent refusal, dated 8 September 2011, to review the matter.

1. On 8 February 2011 Employment Judge recorded the following as part of a document headed "case management order".

"10. A way of working was agreed between respective counsel that the claimant should reconsider the list of documents provided to the respondent to date from the perspective that documents in the period May to August 2008 inclusive are likely to be relevant to the issues to be determined but the majority of documents outside of that period are unlikely to be relevant. However insofar as documents outside of that period are sought to be relied upon by either party then each should give to the other an explanation as to why each claims they are relevant by direct reference to the subparagraph of paragraph 8 of Employment Judge O'Hara's order. Similarly insofar as a document within the period I refer to above is not relevant and a similar explanation should be provided."

1. Two points need to be made by way of explanation. First, paragraph 8 of Employment Judge O'Hara's earlier order set out the issues between the parties. Second, the procedure set out in paragraph 10 was required because the Claimant had set out, in a list of documents, many documents prior to and after the key period, which was between May and August 2008.

1. At a case management hearing which took place on 24 June and was confirmed by order dated 5 July 2011 Employment Judge Howard ordered:

"3. Unless the claimant complies with the Order of Employment Judge Perry of 8 February 2011, contained at paragraph 10 of the Case Management Order of that date, within 21 days, that is on or before 15 July 2011, with a copy sent to the Employment Tribunal, his claim shall be struck out without further order."

1. In effect, therefore, this required the Claimant, if he wished to rely on documents outside the period from May to August 2008, to give by 15 July an explanation as to why each such document was relevant by reference to the issues in the case.

1. On 8 July 2011 the Claimant served a Notice of Appeal against the order dated 5 July. In particular he appealed against the making of the "unless order". On the same day he wrote to the Tribunal to ask for a stay of the order pending appeal. However the Employment Judge did not see the letter until after 15 July. There was therefore nothing to stop the order taking effect on 15 July.

1. On 20 July the Employment Judge gave a judgment which recorded the Claimant's failure to comply with the "unless order" and stated that the claim was struck out in its entirety.

1. The Claimant applied for a review, saying that he had complied with the order and pointing out that the Employment Judge had not dealt with his application for a stay prior to 15 July. On 8 September this application was rejected. The Employment Judge said:

"Whilst the Employment Judge was not aware of the claimant's application for a stay until 19th July and thus could not grant or refuse the claimant's application retrospectively, the Employment Judge considers that the claimant's application did not provide any good grounds upon which such a stay would have been granted and taking account of the respondent's grounds of objection. Thus, the Employment Judge is satisfied that, even had she considered the application for a stay before the strike out took effect, she would have refused it."

1. Mr Crawford submits that an "unless order" striking out the whole of the claim was unnecessary, given that the underlying order related only to the relevance of peripheral categories of document; that the application for a stay ought to have been considered before judgment was entered on 20 July; and that it was a plain case for the grant of a review – the Claimant's disobedience to the order was not deliberate, since he had applied for a stay and was appealing the order.

1. Ms Wedderspoon submits that the Employment Judge was entitled in the exercise of its discretion to make the "unless order"; that the Claimant was bound to comply with it in the absence of the granting of a stay; that the judgment correctly recorded that the striking out had taken effect; and that the Employment Judge did not err in law in refusing the application for a review. She says that the Claimant had become an experienced litigant who could and should have complied with the court order; and she says that he did not comply with a further provision - paragraph 18(4) of the Order dated 8 February 2011.

1. It is important, in my judgment, to keep in mind the problem with which paragraph 10 of the Order dated 8 February was intended to deal. The problem was that the Claimant had disclosed, and wished to have in a bundle for the final hearing, a great many documents outside the core period with which the case was concerned. The purpose of paragraph 10 was to tease out whether these documents were really required and if so why.

1. Given that this was the purpose of the underlying order, to strike out the whole claim for non-compliance was in my judgment plainly inappropriate and excessive. In the absence of compliance by the Claimant it would – it seems to me - have been proportionate to direct that no documents outside the core period should be included in the bundle or adduced in evidence; but to debar the Claimant from bringing his claim merely because he had not complied with an order to state his case for including some peripheral documents was unnecessary. The Employment Judge gave no reasons for saying that it was appropriate to strike out the whole claim if there were non-compliance with this order. If she had directed her mind to that question I have no doubt that she would have imposed a lesser sanction.

1. Accordingly I will allow the appeal against the "unless order" and set it aside.

1. This being so, it is strictly unnecessary to deal with the appeals against the judgment on 20 July and the refusal of a review on 8 September, but I will state my conclusions shortly. The judgment on 20 July did no more than record what had happened by virtue of the "unless order"; I see no error of law in that judgment, and I would have dismissed that appeal. I find the decision on review, however, more problematic. It seems to have given no weight at all to the possibility that the Claimant might have been expecting a response to his application for a stay, which had not been brought to the Employment Judge's attention. It has not considered in the round whether there might be grounds for granting relief against sanction. In the end, however, I need not express any concluded view about that decision.

1. I turn next to the refusal by Employment Judge Howard, also by the order dated 5 July, to grant permission to amend the grounds of claim.

1. The amendment sought (1) to plead the University's statutes, in so far as they concern redundancy, (2) to re-cast, though to my mind not essentially altering, the claim of misrepresentation, (3) to plead events after the making of the compromise agreement – including the representations to HMRC and the pension fund, (4) to plead that the date of the compromise agreement was 14 July rather than 5 August, and (5) to plead that, by reason of the alleged material non-disclosure, the Claimant suffered loss (although no particulars of the loss were given).

1. The Employment Judge refused the application, giving the following reasons:-

"1.6 The Employment Judge refused the claimant leave to amend the Claim Form, applying the "Selkent" principles and bearing in mind the parties' duties to assist in furthering the overriding objection. The Employment Judge accepted that the amendments sought would significantly broaden the issues to be determined, requiring an amended response, and it would not be a proportionate or an expeditious way of conducting the proceedings.

1.7 Further, the amendment had been sought well beyond the statutory time limit and very late in the proceedings with no good reason advanced as to why, when an application to amend at a much earlier stage, in particular following clarification of the issues at the Pre Hearing Review in July 2010, could have been made.

1.8 The Employment Judge was satisfied that the prejudice that would be caused to the respondent by allowing the amendment outweighed the hardship caused to the claimant in refusing it."

1. Mr Crawford, while accepting that the Selkent principles were the correct principles to apply, submits that the Employment Judge erred in law in their application. He concentrates his submissions in particular upon the pleading of the University's Statutes and the date of the compromise agreement – these were relevant to the claim and amendment to refer to them could not conceivably broaden the issues greatly or cause prejudice to the Respondent.

1. I confess that I have not entirely understood the reasoning of the Employment Judge, especially the reference to time limits. I consider, however, that her order was plainly right. The original grounds of claim put the Claimant's case sufficiently. It was not necessary to plead the University's Statutes: they are really no more than background, given that it is common ground that the termination of the Claimant's employment was not redundancy in the true sense of the word. It was not necessary to plead events afterwards: the University's communications to HMRC and the pension fund may have some limited relevance, as I have endeavoured to explain, but they are not central. The date of the compromise agreement is not really in issue: in essential respects it was complete by 14 July, although some formalities may have been dealt with in August.

1. I therefore uphold the Employment Judge's refusal of permission to amend.

1. On 5 July Employment Judge Howard made the following order:

"4. On or before 15 July 2011, the claimant shall serve on the respondent copies of the contents of his file obtained from his former advisor, Ms Pat Wilkins. For the avoidance of doubt, reference to 'file' includes all communications between the claimant and his former advisor Pat Wilkins and her firm, Bennett Wilkins, limited to the period May to August 2008, which are in the claimant's possession, custody or control, including correspondence and attendance and file notes."

1. Employment Judge Howard's reasons were as follows:

"3.1 The claimant's position was that those documents were privileged. It was his belief that the documents were not the complete contents of his file and, on that basis, he was unwilling to waive privilege. It was further argued on his behalf that, in any event, the documents were not relevant to the issues to be determined and they related to advice on his substantive claim of race discrimination.

3.2 It was argued by the respondent that the documents were of crucial and central relevance to the issues to be determined and that their suppression could result in a misleading and dishonest case being pursued before the Tribunal.

3.3 The Employment Judge held that, whilst the documents were clearly of central relevance to the issues to be determined, that in itself was not sufficient to form the basis of an Order to disclose otherwise privileged documentation. However, the Employment Judge accepted that suppression of those documents could potentially result in a misleading and something amounting to a dishonest case being pursued by the claimant and, on that basis, applying the Employment Appeals Tribunal Judgment in Independent Research Services v Catterall EAT 1993 ICR 1, agreed to order disclosure."

1. Mr Crawford emphasises the importance which is to be attached to privileged communications and submits that there was insufficient material to justify the Tribunal in overriding that privilege. The mere fact that the Respondents chose to allege that the Claimant's solicitor was the "prime mover" in labelling the termination of his contract as redundancy would not justify the overriding of the privilege. Moreover the Employment Judge should have taken into account the fact – which was plain from correspondence with Ms Wilkins, which was before her – that he did not have the whole file; electronic documents were no longer available despite a thorough search, even involving the use of a computer consultant by Ms Wilkins.

1. I find it helpful, before turning to Ms Wedderspoon's submissions, to start from first principles.

1. Documents on a solicitor's file are generally subject to disclosure if they are relevant to an issue in the proceedings. There are, however, types of document which may be privileged from disclosure. It is relevant to mention two such types here.

1. Firstly, there may be documents on the solicitor's file which are communications from one side to the other in the course of "without prejudice" negotiations to settle the case. These documents are privileged from disclosure by virtue of what is generally known as the "without prejudice rule". This rule is founded upon the public interest in encouraging litigants to settle their differences rather than litigate them to a finish.

1. There are numerous exceptions to that rule. Thus, for example, evidence of the negotiations is admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence; and it must follow, in my judgment, that evidence of negotiations is admissible to rebut an assertion that a compromise agreement should be set aside on grounds of misrepresentation, fraud or undue influence.

1. It seems, from her reference to Independent Research Services v Caterall that the Employment Judge had the "without prejudice" rule in mind when she granted the order in question. Independent Research Services v Caterall was a case concerning that rule.

1. It is, however, important in my judgment to appreciate that a second, quite distinct, kind of privilege was also engaged in this case. This is the type of privilege known as legal professional privilege. It is not necessary for the purposes of this judgment to give a full exposition of this privilege. It protects, in particular, confidential communications between client and solicitor the purpose of which was to seek or receive legal advice (legal advice privilege). It protects also other confidential communications for which litigation was the dominant purpose (litigation privilege).

1. In this case I have no doubt, having heard Ms Wedderspoon's submissions today, that it is the confidential communications between client and solicitor which ought to have been the focus of the application before Employment Judge Howard and on which she should have received submissions. The purpose of the legal professional privilege rules is quite different to that of the without prejudice rule; the exceptions are more tightly drawn; and Independent Research Services v Caterall was not in point. The Employment Judge's reasoning cannot stand.

1. Ms Wedderspoon argued that the Claimant had waived privilege in his solicitor's file. I have seen nothing in the papers before me to suggest that he has yet done so; and in any event this was not the ground of the Employment Judge's decision, nor was it argued before her. Whether, given the nature of his case, the Claimant will be able to succeed if he does not waive privilege is a matter which he will need to consider with care along with the question whether his former solicitor will support it. At present, however, it seems to me that his privilege is intact.

1. For these reasons I conclude that the first and second appeals must be dismissed and the third appeal allowed in part. The fourth and fifth appeals have been rendered academic in the light of my conclusion that the "unless order" should not have been made; and I will make no order upon them.