The Claimant raised a grievance under the Respondent’s Dignity at Work and Study policy. The Respondent appointed an independent member of academic staff to investigate the grievance and report. She did so on 28 February 2022. Thereafter, the Respondent’s external legal advisors suggested that a number of changes be made to the report. The author of the report also made changes to it of her own before a final version of the report was lodged by the Respondent with the ET shortly before an evidential hearing on the Claimant’s complaints. It was clear from an annotation on the lodged version that it had been revised following legal advice. The Claimant made an application for the production of the original un-amended version of the report. The Respondent resisted that application on the basis that comparison of the original with the amended version would tend to show the nature of legal advice received such that the original version of the document was subject to legal advice privilege. The EJ rejected that argument and made the order. The Respondent appealed on the basis that whilst the original version of the document was not privileged at the point when it was created, it retrospectively acquired legal advice and litigation privilege once the amended version of it was lodged because comparison of the two versions could allow conclusions to be drawn about the terms of the legal advice received by the Respondent.

The EAT dismissed the appeal. Whilst both the terms of any advice given by the solicitor about the original document and any amended version of the original document created for the purpose of the litigation would plainly be privileged, the original un-amended document would not; nor would it retrospectively become privileged even if an incidental consequence of its disclosure and comparison with the disclosed final version might be to allow inferences to be drawn about why the two versions were different.