Case 2403443/2020 · Employment Tribunal
(1) Ms B Lodge (2) Mr S McVicker-Orringe v Ministry of Defence — 2021
- Case reference
- 2403443/2020
- Decision date
- 2 December 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Sharkett
Parties
2 namedClaimant
(1) Ms B Lodge (2) Mr S McVicker-Orringe
Respondent
Key findings
Tribunal's reasoningThis preliminary hearing concerned whether emails disclosed to the claimants in response to a subject access request should be excluded from evidence because they were protected by legal advice privilege or litigation privilege. The tribunal found that litigation privilege did not apply because the advice sought was for an internal matter and there was no evidence that adversarial litigation was anticipated by the respondent at the relevant time.
The tribunal found that the emails dated 4, 8 and 10 April 2019 were not communications between lawyer and client and were not created for the dominant purpose of obtaining or giving legal advice. Those emails were therefore not protected by legal advice privilege and could be relied on by the claimants if relevant at the final hearing.
The tribunal found that the email dated 15 April 2019 and the emails dated 31 July 2019 were confidential communications created for the dominant purpose of seeking, giving, or commenting on legal advice, including as part of a continuum of communications. Although those documents had been disclosed in response to the subject access request, the tribunal found they had been disclosed by mistake, confidentiality had not been lost, and privilege had not been waived. The claimants were therefore not permitted to rely on those documents in the proceedings.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Other | Preliminary hearing on the respondent's application to exclude documents on grounds of legal advice and/or litigation privilege. The tribunal did not adjudicate the underlying age discrimination, sex discrimination, or unlawful deduction from wages claims in this judgment. The application was allowed in part and refused in part: emails dated 4, 8 and 10 April 2019 were not privileged and could be relied on; the email dated 15 April 2019 and three emails dated 31 July 2019 were protected by legal advice privilege and could not be relied on. | Other | — | — |
Legal tests applied
14 references- legal advice privilege
- litigation privilege
- dominant purpose test
- continuum of communications
- waiver of privilege
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Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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