It is not uncommon for lawyers to get calls from clients after an accident seeking legal advice and asking questions about legal professional privilege (Privilege). Unfortunately, by the time the phone call is made the benefits of Privilege can be lost, and information created by the organisation – thinking it was protected – is no longer covered by Privilege.
Privilege in the context of health and safety is complicated. In reality, it is very difficult to establish Privilege in health and safety related communications because they are usually created for a multitude of reasons, not for seeking legal advice.
Seeking legal advice is a fundamental element of establishing Privilege, so you must engage with your lawyer and you must engage early. A health and safety manager cannot create Privilege by themselves, and communications are not Privileged just because you want your lawyer to look at them.
Set out below is a summary of some of the common questions I have to answer in relation to Privilege.
What is it?
Privilege protects confidential communications between a lawyer and their client. Ordinarily “communications” such as letters, emails, reports, diary notes, file notes, hazard reports, incident investigations or even conversations are “discoverable” in legal proceedings. This means they must be handed over/disclosed to regulators or other third parties as part of legal proceedings.
Communications that are subject to Privilege do not have to be handed over.
Why do we have it?
The theory behind Privilege is to ensure clients can get proper legal advice. In this way it helps in the administration of justice.
If conversations between lawyers and their clients had to be handed over to 3rd parties, then clients would be very reluctant to tell their lawyer the truth, and lawyers could not give their clients full and frank advice.
What does it cover?
Privilege covers confidential communications that are made for the dominant purpose of receiving legal advice, or in reasonable anticipation of legal proceedings.
It does not cover communications which are not made for the “dominant purpose”. In the context of a workplace accident, documents that are created before the accident will not be covered by Privilege. This typically includes:
Training records
Policies and procedures
Hazard reports
Emails and other internal communications
Audits
JHA’s
Safe work method statements
Earlier incident investigations
If a communication has been brought into existence for more than one reason, then obtaining “legal advice” is probably not be the “dominant purpose”. For example, after an accident you may create an incident investigation, but this could be for a multitude of purposes, including:
Complying with your own safe work procedures or other health and safety processes
Complying with your own incident investigation procedures
Complying with contractual requirements with a client, or updating a client about incident
Notifying a regulator
Providing advice to your senior management or board
Getting legal advice
If a communication has been created for more than one reason it is very unlikely privilege will apply.
How do I set up Privilege?
You set up Privilege by calling your lawyer and asking for advice.
Remember: Any communications that created before Privilege is set up will not be covered, so if you think you would like to apply Privilege, especially after an incident, do not create any communications until you have spoken to your lawyer.
Can Privilege be lost?
Yes. Even if you have set up Privilege over a document it can be lost.
A common way that Privilege is lost is the communication loses its confidentiality. For example, if confidential communications are shared with the workforce, a client or other third parties it may no longer be confidential and no longer covered by Privilege.
Privilege can also be waived. This means you can change your mind and decide to share documents, meaning they will no longer be Privileged.
In the wake of a serious workplace accident there is often a great deal of tension in an organisation between sharing information (which is consistent with good safety management) and keeping information confidential (which is consistent with good legal risk management). This will never be an easy path to navigate.
Summary
Privilege only protects your organisation's communications. It does not protect an organisation from legal proceedings or investigation. Health and safety regulators have wide ranging powers to investigate workplace accidents, and the exercise of those powers cannot be stopped by Privilege. All Privilege does is stop a regulator accessing communications which are covered by Privilege.
Often, in the aftermath of a serious workplace accident people will generate all manner of communications – emails, file notes, telephone calls, preliminary witness statements – before they stop and think about the best way to manage the incident. Organisations recognise that people are not familiar with serious workplace accidents and may not know the best way to respond, and for this reason they develop emergency response plans to help guide the process. In the same way, people are not familiar with the legal consequences of serious workplace accidents and it is a good idea to set up criteria and processes for considering and establishing Privilege before a serious workplace accident so that people know how to respond.
So, in summary:
Privilege protects confidential communications between a lawyer and their client.
Privilege applies to confidential communications brought into existence for the dominant purpose of getting legal advice or in anticipation of legal proceedings.
Communications that have been created for multiple reasons, or before Privilege was established, will not be covered by the Privilege.
Privilege can be waived or lost.
This article represents a general discussion about the principles of legal professional privilege. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.