MRS BERNADETTE BAXTER AND OTHERS (SUB MULTIPLE OF THE SURTEES LITIGATION) v MIDDLESBROUGH BOROUGH COUNCIL [2008] UKEAT 0282_08_1007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0282_08_1007Case No Appeal No. UKEAT/0282/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS BERNADETTE BAXTER AND OTHERS (SUB MULTIPLE OF THE SURTEES LITIGATION)APPELLANTSMIDDLESBROUGH BOROUGH COUNCILRESPONDENT
Before
His Honour Judge BurkeDate 10 July 2008
[1]APPEARANCES For the Appellant MS S DREW (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road Newcastle upon Tyne NE4 8AW For the Respondent MRS J CALLAN (of Counsel) Instructed by: Middlesbrough Council Legal Services PO Box 99A Municipal Buildings Middlesbrough TS1 2QQ SUMMARY EQUAL PAY ACT: Case Management PRACTICE AND PROCEDURE: Disclosure In the course of the claim of one class of employees in multiple equal pay litigation, the Employment Tribunal ruled that documents relating to a desktop job evaluation exercise were subject to litigation privilege and need not be disclosed by the employers. On the employees' appeal, Held 1) applying Three Rivers (No 6) that the documents fell within the scope of litigation privilege ii) the Employment Tribunal were entitled to find that the purpose of the exercise was not for implementation but for Counsel's brief iii) Article 6 of the Convention did not affect the common law as to privilege; Mecalf v Mardell [2003] floated the possibility of a re-examination of the common law principles but no more. HIS HONOUR JUDGE BURKE QC The History This is an appeal by the Claimants against an interlocutory judgment of the Employment Tribunal, sitting at Newcastle upon Tyne in the person of Employment Judge HHJ Barton alone, made in the course of equal pay claims by a very large number of Claimants against Middlesbrough Council, whom I shall call "the Council".[2]The Claimants are made up of various categories or, as they are called, "sub-multiples", of female workers employed by the Council. One of those sub-multiples consists of Claimants who work in various jobs in the social work field. It is those Claimants who are affected by the judgment under appeal, which was sent to the parties on 8 May of this year.[3]The Employment Judge ruled that documents relating to a job evaluation exercise carried out in 2004 by the Council should not be disclosed because they were subject to litigation privilege. The Claimants' appeal against that decision has been expedited so that it can be heard and decided before the substantive hearing of the claims, which have been proceeding for some time before Employment Judge Hargrove and lay members but now stands adjourned. It is to be resumed on 21 July; because of the need for a speedy result, I have not reserved this judgment as I otherwise would have done. The parties clearly need to know at least the Employment Appeal Tribunal's decision as soon as possible.[4]I have just referred to the parties; and that reference gives rise to a procedural difficulty with which I must deal at the outset. There are 11 test Claimants, who are test Claimants, I understand, for many hundreds of claimants in the social work field. Each of the 11 test Claimants occupies a different job in the Council's social work function (save that one of them has two jobs).[5]In other categories or sub-multiples of claims, the Claimants seek to compare themselves with different comparators. In the case of the present sub-multiple, the 11 test Claimants seek to compare themselves with 2 male comparators employed by the Council, Mr Fenny and Mr Fowler, both of whom are craft workers.[6]In the Employment Judge's decision, the relevant Claimants are described as Mrs Surtees and Others. In the Notice of Appeal, the Appellants are described as Ms J Theakston and Others. As a result, this Appeal has been called by the EAT "Ms Theakston and Others (sub-multiple of the Surtees litigation) v Middlesbrough Council". It has now emerged that Ms Theakston is not a relevant test Claimant, that the Notice of Appeal was in error and that there is no dispute as to who are the 11 test Claimants. They do not include Ms Theakston. The title to the proceedings in the Employment Appeal Tribunal, therefore, needs to be amended so as to delete the reference to Ms Theakston and to read, taking the name of the first of the 11 test Claimants in alphabetical order, Mrs Bernadette Baxter and Others (sub-multiples of the Surtees litigation) and I order that the proceedings be amended in that way.[7]There is another preliminary point which relates to one of the grounds of appeal which Ms Drew, on behalf of the Claimants, seeks to argue. The Notice of Appeal sets out three grounds of appeal. At the sift stage, on 30 June of this year, the President permitted the first of those three grounds to go through to a full hearing, which is the hearing which has taken place before me; but he did not permit the other two grounds to do likewise.[8]Ms Drew seeks to revive the second ground but not the third, as if today's hearing were an oral hearing under Rule 3(10) of the Employment Appeal Tribunal Rules. The Council resist that course. I propose to come to that point at a later stage of this judgment. Before I do so, I need to set out a brief description of this aspect of the multiple litigation and of its history.[9]The Claimants' claim against the Council is brought under the Equal Pay Act 1970 and also under the Sex Discrimination Act 1975 . The 11 test Claimants claim under the Equal Pay Act on the basis that their work was of equal value to that of the comparators. Other Claimants claim on the basis of work rated as equivalent, but not these 11 test Claimants as I understand it.[10]They first put forward their claims on various dates between July 2003 and November 2005. On 23 December 2004, pursuant to an Employment Tribunal order, the claims were consolidated into an amended combined originating application. The Claimants' employment is subject or was subject to a national agreement, called the Green Book. The comparators were employed under a different set of national conditions, known as the Red Book.[11]In paragraph 28 of their response in its original form the Council said this:
"28. The Respondent accepts that a job evaluation exercise has not been carried out on the posts of workers employed under the conditions set by the JNC for Local Authority Craft and Associated Employees, known as the Red Book … The Respondent has no immediate plans to undertake a job evaluation exercise in respect of these employees."
[12]The original response was dated January 2005; but, because the claim was put forward inter alia on the basis that the work of the Claimants was of equal value to that of the comparators, what is called a Stage 1 Equal Value Hearing under Rule 4 of Schedule 6 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 was heard in early 2006. The Tribunal ordered that the Equal Value issue be referred to an independent expert.[13]The expert delivered his/her report on 28 May 2007. He/she concluded that all of the Claimants' work was of equal value to the work of Mr Fenny, save in one case in which the difference was so minimal as to have no practical effect, and that, in the case of four of the Claimants, their work was of equal value to that of Mr Fowler.[14]Meanwhile, unusually, before the Equal Value issues were tried, the Tribunal tried issues arising out of the genuine material difference or factor defence relied upon by the Council. The Tribunal found in favour of the employees. The Employment Appeal Tribunal upheld in part the Respondent's appeal against the Tribunal's conclusion; and the Court of Appeal has heard, as I understand it, both an appeal and a cross-appeal recently. Their judgment is awaited but, of course, the proceedings continue meanwhile.[15]Since the expert reported, the parties have been committed to obtain and adduce expert evidence at the hearings which are to decide the Equal Value issues and have, I assume, been in the throes of deploying that evidence and will continue to do so when those hearings are resumed.[16]In December 2007 the Council obtained leave to amend their response by relying on Section 2A of the Equal Pay Act 1970 .

(a) provide as follows:

"2A Procedure before tribunal in certain cases … (2) Subsection (2A) below applies in a case where- (a) a tribunal is required to determine whether any work is of equal value as mentioned in section 1(2)(c) above, and (b) the work of the woman and that of the man in question have been given different values on a study such as is mentioned in section 1(5) above. (2A) the tribunal shall determine that the work of the woman and that of the man are not of equal value unless the tribunal has reasonable grounds for suspecting that the evaluation contained in the study- (a) was (within the meaning of subsection (3) below) made on a system of discriminates on grounds of sex, or (b) is otherwise unsuitable to be relied upon."
[17]Those subsections of section 2A only have effect in relation to proceedings instituted on or after 1 October 2004. Some of the Claimants started their proceedings before that date. I am told that the Council have relied on the preceding provisions to those which I have just set out and that there is an issue as to whether they are entitled to rely on those provisions or not, in the cases of those whose proceedings were issued before 1 October 2004.[18]The basis of the Council's case under section 2A(2) and 2A is that, in a job evaluation study carried out in 2007, Mr Fenny's work (but not Mr Fowler's work) was rated higher than the work of the Claimants. Insofar as the test Claimants' claims are based on the report of the expert as to the comparison between their work and the work of Mr Fenny, the Council assert that, there being in 2007 a job evaluation study in which Mr Fenny's work was rated as of a higher value, they have a defence to the Equal Value claim.[19]By way of reply, the Claimants assert that there are reasonable grounds for suspecting that both of the conditions set out in 2A(2)(a) apply, i.e. that the 2007 evaluation was made on a system which discriminated on the grounds of sex or it was otherwise unsuitable to be relied upon. Part of their case that it was unsuitable to be relied upon is that it was prepared for the purposes of the current litigation. It is clear that there had been an earlier job evaluation study of the craft jobs in 2006. The Council do not rely on that study which, it accepts, had not been carried out satisfactorily.[20]I have already said that the President permitted one ground only of the three in the Notice of Appeal to go through to a full hearing; that ground asserts that the Employment Judge was in error of law in concluding that documents in respect of which privilege was claimed were, indeed, covered by privilege. The third ground of attack set out in the Notice of Appeal, based on the procedure adopted before the Employment Judge is no longer pursued.[21]I need now to say a word about the second preliminary point which relates to the second ground of attack in the Notice of Appeal which is that the Employment Judge wrongly rejected the Claimants' case that privilege had been waived. As they were entitled to do, the Claimants, by their solicitors in a letter sent to the EAT yesterday, sought an oral hearing of their appeal on that ground under Rule 3(10) of the Employment Appeal Tribunal Rules . Normally, of course, if an appellant, who has achieved a full hearing on one or more grounds but has had another ground or other grounds rejected at the sift stage, wishes to proceed with one or more of those rejected grounds and seeks a Rule 3(10) hearing accordingly, that hearing takes place before any full hearing. The Employment Appeal Tribunal decides, under Rule 3(10), whether the additional ground or grounds have reasonable prospects of success and, if so, they go through to a full hearing and are joined up with the ground or grounds which have already gone to a full hearing.[22]In this case, because of the need for expedition, the Employment Appeal Tribunal listed the full hearing of ground 1 for today, before the expiry of the 28 days permitted to an appellant in which to seek a Rule 3(10) hearing. Thus the position was, as of this morning, that I was to hear the full hearing in relation to ground 1; and the Claimants sought to achieve a position in which at that hearing they could also put forward their arguments on waiver, which I would consider bilaterally and decide upon, together with my decision on ground 1.[23]While that course would have been convenient it would, of course, have imposed a burden on the Council and the Council's representatives which, it seemed to me, they may or may not have been willing to bear; for they did not know, until yesterday sometime, that the waiver ground was going to be pursued, at least as far as a Rule 3(10) hearing. Therefore, it seemed to me essential that I gave to Mrs Callan, who appears on behalf of the Council today, the choice either of treating this hearing as a bilateral hearing, not only in relation to ground 1 but also in relation to ground 2, or of postponing consideration of ground 2 until I had heard Ms Drew unilaterally. If Mrs Drew were to persuade me that ground 2 had reasonable prospects of success, then I would hold a further hearing at which, having had time to prepare themselves, the Council would be able to resist Ms Drew's arguments.[24]Mrs Callan, and I do not criticise her in any way, chose the latter option. The result, therefore, is that I am only dealing in this judgment with ground 1 in the Notice of Appeal. When this judgment is finished, either today or sometime tomorrow, Ms Drew will have the opportunity of a Rule 3(10) hearing before me on ground 2; and if the threshold is passed, tomorrow afternoon there will be a bilateral hearing on ground 2 at the end of which I will, of course, give a separate judgment.[25]I proceed, therefore, to address ground 1 in the knowledge that, if I am called upon to give judgment in respect of ground 2, what I have said about the history and the parties' positions so far will not need to be repeated in any such judgment.[26]Three important points need to be noted before I proceed to consider the parties' submissions. Firstly, the documents sought to be disclosed are prima facie relevant to the issues raised by the Claimants in the Equal Value claim. That is not in dispute. Secondly, equally not in dispute is the fact that the burden of proof lay, before the Employment Judge, on the Council to establish that they were protected by privilege from the disclosure order which would be made if the claim to privilege failed. Thirdly, the privilege claimed is what is in modern times called litigation privilege, one of two sub-branches of legal professional privilege, the other sub-branch being legal advice privilege which, of course, attaches to documents passing between a client and a client's legal advisor seeking or giving advice, whether or not in the context of litigation. Procedure[27]I need to say a little about the procedures adopted before the Employment Judge. He was, deliberately, not the Employment Judge who has been and will continue to be conducting the Equal Value litigation. For that reason he was permitted to see the documents relating to the 2004 evaluation of which the Claimants seek disclosure. For obvious reasons they were not shown to the Claimants' advisors who were required to leave the tribunal room while counsel for the Council made submissions as to the contents of those documents, although, of course, they were able to be present while submissions were made as to the nature and the extent of privilege and other associated matters. That procedure was the subject of the third ground of the Notice of Appeal which was not permitted to go beyond the sift stage; and Ms Drew, on behalf of the Claimants, does not seek to reopen that ground under Rule 3(10).[28]In this appeal Mrs Callan had indicated to me that, if I wanted to see the documents shown to the Employment Judge she would not object to my doing so, no doubt on the same terms as those which applied before the Employment Judge. In her reply, but not before, Ms Drew invited me to look at the documents, I infer, on those terms. But matters of fact were for the Employment Judge and not for me; Ms Drew does not rely on perversity in relation to the Employment Judge's factual conclusions; and in those circumstances I take the view that I need not and, indeed, should not embark on my own consideration of the documents, as opposed to consideration of the Employment Judge's conclusions on the relevant facts derived from his consideration of those documents. The Employment Judge's conclusion[29]The Employment

Judge defined the issue before him at paragraph 3 of his judgment in these terms:

"3. The claimants seek disclosure of a job evaluation exercise carried out by the respondent in November and December 2004 as is referred to in the witness statement of Linda Maughan at paragraph 4 - paragraph 6 (trial bundle volume 7, tab 1, page 1). The claimants also claim entitlement to have all relevant internal council documents. The respondent declines to disclose these documents claiming legal professional privilege."
[30]At paragraphs 7 and 8 he said:
"7. The small bundle of documents consists of the order made at a case management discussion held on 3 April 2008 and sent to the parties on 9 April 2008 as to examination of documents in the possession of the respondent. That order will be common to the parties. There was also a minute of a meeting held on 22 November 2004 between various council officials including its In-House Legal Advisor and Ms Jane Woodwork, as she then was, of Counsel (now Mrs Callan), a list of draft (red book) comparators identified by the claimant's solicitor from information as at 19 November 2004 and various emails between officials together with a draft letter to union officials (undated) a copy of which has been provided to the claimants. 8. Privilege is claimed in relation of the confidential statement of Linda Maughan in as much as it refers to the minute of 22 November 2004 and to what happened in that meeting with the Council's legal advisors including Counsel and what followed from that meeting in terms of arrangements for desk top evaluations to be undertaken. While it is true that Ms Drew has not had opportunity of cross-examining upon the witness statement it is entirely consistent with the remaining documents in which privilege claimed to which I have also made reference above and upon which I have found facts to which I have applied the legal principles which from the basis of this interlocutory judgment."
[31]Under the heading Facts he said at paragraph 9:
"9. A meeting took place on 18 November 2004 between council officers including the council's legal advisors and counsel in respect of a forthcoming Stage 1 hearing then listed for 22 November 2004. It was a result of that discussion and to further assist counsel in advising the respondent that the desk top evaluation exercise was carried out and the documents in respect of which privilege is claimed consists of that desk top evaluation, the minute of the meeting with Counsel and subsequent emails relating to that issue."
[32]He then referred to the argument put forward by Ms Drew on behalf of the Claimants and Mr Jeans QC on behalf of the Council, each of whom laid heavy emphasis on passages, but different passages, from the speeches in the House of Lords in Three Rivers DC v Bank of England [2004] 3 WLR 1274 ( Three Rivers No. 6 ) . He then, in paragraphs 20-25, set out the law as follows:
"20. Legal professional privilege can take two forms and these are summarised at CPR 31.15(5) as follows: 'Litigation privilege protects confidential communication – between lawyers, clients and third parties – made for the dominant purpose of litigation, either actual or contemplated (for the requirements of litigation privilege, see para CPR 31.15 [5.1] and CPR 31.15 [5.2]. Legal Advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice (for the requirements of legal advice privilege, see para CPR 31.15 [5.1] and CPR 31.15 [5.3].' 21. To attract privilege communications must be confidential. Communications between a client and his solicitor which the client instructed his solicitor to repeat to the other party are not privileged, at least where the instructions did not involve the client seeking legal advice, because of communication of such instructions is not confidential. Conlon v Conlons Limited [1952] 2 All ER 462, CA as explained in Baladell v Air India [1988] Ch 317 at 331. These authorities are referred to at CPR 31.15 [5.1] which also refers to the contrast of Ramac Holdings Limited v Brechers [2003] Lloyds Rep PN 26, where the instructions were bound up with the seeking of advice, and were therefore privileged. 22. The question regarding litigation privilege is dealt with at CPR 31.15 [5.3] provides that for litigation privilege to attach, communications to and from a professional legal advisor or third party (or between them) must be between them in the context of, and for the sole or dominant purpose of, actual or contemplated litigation Waugh v British Railways Board [1980] AC 521 , [1979] 2 All ER 1169 , CPR 31 goes on to say that there is some inconsistency on the question whether this head of privilege only applies where the disclosure would reveal what passed between client and solicitor, which would appear this type of privilege to a subset of legal advice privilege but although that appears to be support what Sir Richard Scott VC said in Barings PLC [198] 1 All ER 673, it seems wrong in principle and arguable inconsistent with approach of the Court of Appeal in re Highgate Traders Limited [1984] BCLC 151 and Gulness Peat Properties Limited v Fitzroy Robinson Partnership [1987] 1 WLR 1027, [1987] 2 All ER 716. 23. The dominant purpose of the document is ascertained by reference not to the intentions of its author, but to those of the person under whose authority it is produced Waugh v British Railways Board [1980] CR 521, [1979] 2 All ER 1169 , HL. The dominant purpose is to be established by reference to the time to document was created Jones v Great Central Railway Company [1910] AC 4 and Alfred Crompton Amusement Machines Limited v Comrs of Customs & Excise (No 2) [1974] AC 405, [1973] 2 All ER 1169. 24. Litigation privilege does not extend to cover documents obtained for the purpose of litigation if they came into existence before litigation was contemplated. However the fact that such documents are not protected from disclosure does not necessarily mean that the court will exercise its discretion toward production and inspection of them. Venturis v Mountain [1991] 3 All ER 472, [1991] 1 WLR 607, CA. Litigation is contemplated for the purpose of litigation privilege if it is 'reasonably in prospect', and it is a matter of fact in each case whether litigation is 'reasonably in prospect' at the time of the communication in question. 25. At CPR 31.15 [4] the Rules deal with the issues of privilege and the Human Rights Act 1998 and Contempt of Court Act 1981. They state that privilege has been held by the European Court of Human Rights to be right of privacy guaranteed by Article 8 of the convention. Campbell v United Kingdom [1992] 15 EHRR 137; Foxley v United Kingdom [2003] 31 EHRR 637 and this view has been franked by Steyn LJ in R v Secretary of State for the Home Department exp. Leech (No 2) [1994] QB 198 at 210, [1993] 4 All ER 539 at 548. Privilege as been held by the European Court of Justice to be a part of community law: A M & S Europe Limited v EC Commission (case 155/79) [1983] QB 878 , ECJ CPR 31.15 [4] goes on to say that although the effect of privilege is to withhold relevant evidence from the Court, privilege is not incompatible with the right to a fair trial under Article 6 of the Convention."
[33]He then set out his conclusions at paragraph 26:
"26. I am satisfied as a matter of fact that the 2004 evaluation was carried out as a result of a meeting between council officers, including legal officers and its chosen counsel. It was carried out so that counsel could better advise the respondent. The documents in respect of which privilege is claimed were therefore integral to the obtaining of advice. The minute of that meeting, the evaluation itself and internal emails relating to it were therefore for the purpose of obtaining advice. It was not undertaken with the intention of implementing the results of the exercise to the posts involved and nor does the respondent seek to rely upon it. Quite clearly, therefore, the dominant purpose of the document was the litigation. While it may be said that the evaluation exercise itself was not a communication with counsel it was prepared for the express purpose of the seeking of advice and is therefore privileged as legal professional privilege, specifically litigation privilege."
Discussion and conclusions[34]I should say at the outset that, today, Ms Drew has limited the scope of the disclosure which she seeks to the job evaluation documents for 2004 i.e. the job evaluation documents alone, and not to any of the internal documents which surround them or go to them.[35]In what follows, in order to be able to give judgment today, I have decided not, as I might have done if I had reserved judgment, to set out in a separate section of this judgment the submissions, or a summary of the submissions, made by the parties. Their submissions are foreshadowed in their skeleton arguments, to which reference can be made if necessary; and I shall seek, at least in summary form, to express them as convenient in what follows. The boundaries of litigation privilege[36]Ms Drew's primary argument was that litigation privilege should not apply to documents which do not of themselves "reflect" either the advice sought or advice given between a client and legal adviser and documents which actually contain such advice or the obtaining of such advice being subject to legal advice privilege.[37]The documents here which the Council declined to disclose, she submitted, were not documents which sought or included or commented on legal advice but were documents relating to an objectively carried out job evaluation exercise intended to be analytical and open and carried out in a manner which was the subject of detailed guidance in the Green Book, which guidance includes the use of joint panels, and, if possible, the participation of the relevant employees and of the relevant trade unions.[38]She submitted that the exercise in dispute was one which involved the creation not of a confidential document for purposes such as inclusion in Counsel's brief but of an objective study carried out by a sub-contractor engaged by the Council for the purpose, pursuant to specific rules set out in a national agreement. She further submitted that the 2004 evaluation was the first of a sequence of evaluations, it having been followed by evaluations in 2006 and 2007 which had been disclosed but nothing distinguished the 2004 exercise from the 2006 and the 2007 exercises; and it would be "wrong" (the word she used) or "unfair" (as she later said) to allow the Council to cherry pick by withholding the documents relating to one of the sequence of studies but not the others. The disclosure of the 2006 and 2007 documents demonstrated that the maintenance of privilege in relation to the 2004 documents was not necessary to maintain the inviolability of communication between legal advisor and the client, which is the purpose of the principle of litigation privilege.[39]She submitted that in Three Rivers (No. 6) Lord Scott of Foscote had indicated that the type of privilege on which the Council rely, litigation privilege, as a sub-branch of legal professional privilege, should be confined to documents which constitute or disclose the seeking or giving of legal advice (see paragraph 29, page 1284) and she relied upon passages in Re Barings Plc [1998] 1 All ER 673 in which Lord Scott (then Vice Chancellor) had, submitted Ms Drew, presaged in a passage at page 679(h) to 680(a) what he later said in Three Rivers (No. 6) . She submitted that the 2004 job evaluation documents did not come within the scope of litigation privilege as Lord Scott conceived that scope to be.[40]Secondly, she submitted that the Employment Judge misdirected himself on the issue of the purpose. She relied in her skeleton argument, at least, although not orally (though I am not suggesting for one moment that she abandoned the argument which appears in her skeleton) on correspondence between the Council and trade unions, of whom some of the Claimants were members, and asserts that the real purpose of the 2004 job evaluation was not litigation but the need to reach agreement with the unions.[41]Thirdly, she submitted that the refusal of disclosure constituted a diminution or denial of the Claimants' right to a fair hearing, enshrined in Article 6(1) of the European Convention of Human Rights .[42]I agree with the Employment Judge that, whereas legal advice privilege relates to confidential communications between a lawyer and the lawyer's client for the purposes of obtaining or giving legal advice, whether or not in connection with litigation, litigation privilege necessarily covers a different class of communication, in one sense, in my judgment, broader, in another sense narrower.[43]Such privilege is narrower because it must arise in relation to documents which are prepared for litigation which is actual or in contemplation and the predominant purpose of the creation of the document must be for that litigation; broader because the class of documents which can fall within the privilege is not restricted to those passing between solicitor and client and falling within the legal advice privilege.[44]In his speech in Three Rivers (No. 6) Lord Scott, at paragraph 10, said this:
"10. The modern case law on legal professional privilege has divided the privilege into two categories, legal advice privilege and litigation privilege. Litigation privilege covers all documents brought into being for the purposes of litigation. Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given."
[45]Three Rivers (No. 6) was a case in which the boundaries of legal advice privilege were the central subject matter of the House of Lords' consideration; the boundaries of litigation privilege were not.[46]I respectfully agree with and adopt what Lord Carswell said at paragraph 86, namely:
"86. Determining the bounds of privilege involves finding the proper point of balance between two opposing imperatives, making the maximum relevant material available to the court of trial and avoiding unfairness to individuals by revealing confidential communications between their lawyers and themselves."
[47]He was, of course, there speaking of legal advice privilege; but, with an alteration of the final words of that sentence so as to bring in litigation privilege as opposed to legal advice privilege, the principle is plainly right.[48]Lord Rodger at paragraph 52, page 1291 (tab 1 of the authorities bundle) said:
"52. Litigation privilege relates to communications at the stage when litigation is pending or in contemplation. It is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try to defeat the other, with the judge or jury determining the winner. In such a system each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations. In the words of Justice Jackson in Hickman v Taylor (1947) 329 US 495, 516, 'Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.'."
[49]I have said that Ms Drew relied on paragraph 29, page 1284, in the speech of Lord Scott which is as follows:
"29. In paragraph 39 of their judgment in Three Rivers (No. 6) the Court of Appeal commented that: 'The justification for litigation privilege is readily understood. Where, however, litigation is not anticipated it is not easy to see why communications with a solicitor should be privileged.' As to the justification for litigation privilege, I would respectfully agree that the need to afford privilege to the seeking or giving of legal advice for the purposes of actual or contemplated litigation is easy to understand. I do not, however, agree that that is so in relation to those documents or communications which although having the requisite connection with litigation neither constitute nor disclose the seeking or giving of legal advice. Communications between litigant and third parties are the obvious example. This House in Re L [1997] AC 16 restricted litigation privilege to communications or documents with the requisite connection to adversarial proceedings. Civil litigation conducted pursuant to the current Civil Procedure Rules is in many respects no longer adversarial. The decision in Re L warrants, in my opinion, a new look at the justification for litigation privilege. But that is for another day. It does not arise on this appeal."
[50]I cannot read the speeches as a whole, or paragraph 29 of Lord Scott's speech in particular, as propounding a narrower test for litigation privilege from that which previously existed. At best, paragraph 29 raises a query as to whether the justification for litigation privilege needs reconsideration; but Lord Scott said in terms, "That is for another day. It does not arise on this appeal"; and in my judgment it does not arise in this appeal either in this sense, that I am bound by earlier authority. I am not in a position, however desirable it may or may not be, to alter established principles of law.[51]Subject to what follows, that principle is set out in paragraph 10, and I repeat it:
"Litigation privilege covers all documents brought into being for the purposes of litigation."
[52]Lord Scott did not suggest in Three Rivers (No. 6) that that reconsideration of the justification of litigation privilege was to be found in the second authority on which Ms Drew relied, namely, his own decision in Re Barings Plc , although, to be fair, it is not suggested that Re Barings Plc was cited to the House of Lords in Three Rivers (No. 6) .[53]At page 681(j) to 682(b), Lord Scott in Re Barings Plc said:
"These citations make clear, in my opinion, that documents brought into being by solicitors for the purpose of litigation were afforded privilege because of the light they might cast on the client's instructions to the solicitor or the solicitor's advice to the client regarding the conduct of the case or on the client's prospects. There was no general privilege that attached to documents brought into existence for the purposes of litigation independent of the need to keep inviolate communications between client and legal adviser. If documents for which privilege was sought did not relate in some fashion to communications between client and legal adviser, there was no element of public interest that could override the ordinary rights of discovery and no privilege. So, for example, an unsolicited communication from a third party, a potential witness, about the facts of the case would not, on this view, have been privileged. And why should it be? What public interest is served by according privilege to such a communication? But have the more modern authorities established a different and more extensive principle? Miss Gloster would say Yes."
[54]If the contrast is between the creation of a document by a third party unsolicited by the client or his legal advisors and the creation of a document which is solicited by the legal advisors, that will not help Ms Drew's case here; for there is no suggestion that the 2004 job evaluation document was spontaneously created by a third party without any action on the part of legal advisors, leaving aside for the moment the Employment Judge's findings of fact. But the passage as a whole, leaving aside that perhaps semantic point, does not, in my judgment, constitute any narrowing of the principles of litigation privilege.[55]Lord Scott in Re Barings Plc went on to set out a series of decisions of the Court of Appeal, including, in particular, Re Highgrade Traders Ltd [1984] BCLC 151 and Guinness Peat Properties Limited v Fitzroy Robinson Partnership [1987] 2 All ER 716 in which the Court of Appeal had proceeded on the basis, as set out by Oliver LJ in Re Highgrade Traders , of this principle:
"If litigation is reasonably in prospect, documents brought into being for the purpose of enabling the solicitors to advise whether a claim shall be made or resisted are protected by privilege subject only to the caveat that that is the dominant purpose for their having been brought into being."
[56]But Lord Scott did not apply that principle to the case before him because he concluded that the document which was the subject matter of his judgment was a document which had been created pursuant to statute; it was brought into existence for a statutory purpose; and thus the claim to privilege failed.[57]It is important to point out that (at page 683(b) to (d)) Lord Scott himself set out the limitation on legal professional privilege, including litigation privilege, as set out in the decision of the House of Lords in Waugh v British Railways Board [1980] AC 521 , and said that Waugh limited the scope of litigation privilege by establishing that it was not enough for the document to be prepared for the purpose of being placed before lawyers for advice, the purpose had to be at least a dominant one. I do not need to turn to Waugh; for the principle established in it is that which Lord Scott summarised in the passage to which I have just referred; and that principle, in my judgment, applies to this case.[58]Ms Drew's first submission appears to me to elide, to a substantial extent, the difference between the two categories of legal professional privilege. Her argument that litigation privilege should not apply to a document which did not of itself reflect advice sought or given, faces two difficulties. If by the word "reflect" she meant that the disclosure of such a document would or would tend to reveal such advice or the seeking of such advice, then it seems to me that the elision is substantial. If she meant that the document was obtained in consequence of advice sought or given, that difference is not elided; but Ms Drew runs up against a second difficulty, namely that the confines of the privilege of such a document are defined by the purpose test set out in Waugh and not by any other.[59]I have come to the conclusion that Ms Drew's first argument cannot succeed. Privilege will attach to a document which does not contain or disclose legal advice if it was created or prepared for the dominant purpose of being placed before lawyers for advice i.e. if the dominant purpose was the litigation, actual or contemplated. The fact that a document created for that purpose involves, as Ms Drew asserts it did, an objective analysis of the content of a job or jobs carried out, pursuant to guidance set out in a joint agreement between management and union, does not, in my judgment, take the document into a different category so far as litigation privilege is concerned.[60]Before leaving this part of Ms Drew's submission I should record that according to Mrs Callan the 2004 exercise, described as a "Desktop exercise", did not involve the full panoply of job evaluation study contemplated by the Green Book. It did not involve any relevant employee or the unions but consisted of whoever it was who was commissioned to undertake the exercise putting a value on the relevant worker's work (whether that was Mr Fenny above or both Mr Fenny and Mr Fowler I do not know and it probably does not matter) from a job specification and a person specification. Insofar as there is dispute there, I cannot resolve it. All I can say is that the Employment Judge saw the documents and would have formed his own view; and I have not been shown anything by Ms Drew to support her more expansive interpretation of what that exercise consisted of. Purpose[61]I turn, therefore, to Ms Drew's arguments as to purpose. They were restrained. They were restrained partly, I suspect, because the Claimants wish, for the purposes of reliance on section 2A(2A)(b) of the Equal Pay Act 1970, to be able to put forward the assertion that the job evaluation exercises which the Council carried out were for the purposes of litigation; Mrs Drew did not seek to submit that the Employment Judge, having seen the documents, reached a conclusion which was perverse.[62]In her skeleton argument she referred to the correspondence between union and employers, to which she took me in more detail orally. I do not intend to set out that correspondence, which is included in the bundle. In my judgment, that correspondence did not support her assertion that, in some way, it undermined the Employment Judge's conclusion.[63]She also relied upon the fact that section 2A(2A) was not pleaded by the Council until December 2007. But it seems to me that that does not reflect in any way on what the purpose of the 2004 document was or might have been. The reason why the Council did not rely on those provisions until 2007 is unlikely to be unconnected with the fact that it was not until 2007 that the independent expert reported in a manner which was, at least, to a substantial degree, adverse to their interests.[64]Despite Ms Drew's submissions, I have not seen anything which leads me to believe that, either in applying the test of predominant purpose or in reaching his factual conclusion as to predominant purpose, the Employment Judge misdirected himself in law or otherwise. Having seen the relevant documents, he was in a position to make a finding of fact as to their purpose; and he made such findings of fact at paragraphs 9 and 26. I should mention that in paragraphs 7 and 9 the date of 22 November is accepted by the parties to be a misprint for 18 November; I mention that lest it may be important hereafter for the relevant sequence of events to be seen in their true light; but it is not suggested that it undermines the Employment Judge's conclusion on the facts, behind which I have seen no reason to go.[65]I need to say that I have been referred to what appears to be a draft letter, drafted by the Council with proposed recipients being the regional organiser of UCATT and the regional officer of AMICUS. The draft letter purports to intend to tell the intended recipients that the Council had been "directed by the Chair to evaluate the comparator jobs and to have the results available for a hearing on 17 January 2005". It talks of some form of job evaluation being carried out, presumably in time for that hearing.[66]When I first saw that letter I wondered whether it showed that the 2004 job evaluation documents were not the product of legal advice to the Council but of an order from the Employment Tribunal to produce such an evaluation. But Mrs Callan tells me, without demur from Ms Drew, that prior to 17 January 2005 no Tribunal had made any such order as appears on the face of it to have been mentioned or referred to in the draft letter and, furthermore, that the Tribunal does not, in any event, have any jurisdiction or power to direct a body to carry out a job evaluation exercise. It would seem that the draft letter was, firstly, just that, a draft and, secondly, an erroneous draft which, in its central part, was simply drafted in such a way as to carry a completely false message (which may explain why it was never sent or why it has not been suggested it was ever sent).[67]The Employment Judge had this letter before him with the other documents; and there is no reason to suppose he did not consider it; indeed, he mentions it expressly in paragraph 7 of his judgment. He was obviously not persuaded that it indicated some purpose in the creation of the 2004 job evaluation documents inconsistent with the Council's assertion as to the dominant purpose of that creation. Having seen that letter and considered it and what has been said about it, I see no reason why his judgment on the facts of the purpose of that creation should be disturbed.[68]I turn, therefore, to the third set of submissions put forward by Ms Drew, namely, Article 6. The argument is that the Employment Judge erred in failing to give any or any adequate weight to the effect of Article 6 guaranteeing, of course, the right to a fair trial. Article 6 does not give an express right to disclosure of documents which under the common law are the subject of privilege. It does not suggest, in terms or otherwise, that the principles on which privilege is granted or refused are to be in some way altered by Article 6, nor is it suggested that there is any authority for the narrowing of the principles of privilege under the influence of Article 6.[69]I accept Mrs Callan's submission that, if a document or other communication falls within the embrace of the principles of litigation privilege, there is no discretion in the courts to withhold that privilege (see per Lord Scott in Three Rivers (No.6) at paragraph 25). Nothing in Three Rivers (No.6) suggests that there might be any incompatibility between the common law as to privilege and Article 6. There is no reference to Article 6 in any of the speeches. Whether Article 6 was referred to in argument it is not possible to say from the report before me.[70]In Three Rivers (No. 5) [2003] 3 WLR 667 , which has been put into my bundle, which I accept Counsel did not actually refer to, argument about privilege proceeded in the Court of Appeal; and there too I can find no reference to the principles as to privilege being affected in any way by the introduction into domestic law, of Article 6. It is difficult to imagine that all of their Lordships who have considered the question in the context of the extended litigation arising out of the Three Rivers claims and distinguished counsel who appeared in those various appeals failed to see a point which, if Ms Drew is right, would appear to be relatively clear.[71]Ms Drew has, however, found one place in which the point was considered. That is in the decision of the House of Lords in Medcalf v Mardell [2003] 1 AC 120 . In that case the question of the effect of legal professional privilege on the ability of an advocate to protect himself against an order for wasted costs was discussed by their Lordships in detail, the position of an advocate in explaining why he acted as he did or did not, as appropriate, being limited by the confines of the privilege between himself and his client so that in the absence of waiver by the client, he could find himself in a disadvantaged position.[72]With the leading speech of Lord Bingham, Lord Rodger and Lord Hoffman expressly concurred, as they did with the speech of Lord Steyn. Lord Hobhouse alone raised the question of possible conflict between the boundaries of legal professional privilege and Articles 6 and 8 of the Convention. But while suggesting that some reconsideration might be necessary, he certainly did not decide that the effect of Article 6 was that for which Ms Drew contends. Indeed, he said in paragraph 16:
"As already observed by my noble and learned friend Lord Steyn, the nature and extent of legal professional privilege has not been in question on this appeal, nor has it been the subject of any argument. Its absolute and paramount character has been accepted by the Respondents. [Later in the same paragraph he said] It may be that, as in the context of Articles 6 and 8 of the European Convention on Human Rights, that privilege may not always be absolute and a balancing exercise may sometimes be necessary ( Campbell v UK [1993] 15 EHRR 137 92/41, Foxley v United Kingdom 31 Eur. Hum. Rts. Rep. 637 (2000)), both of which, I am told, are not Article 6 cases. But on the present appeal it must be taken that the material which the Appellants say is relevant may not directly or indirectly be made available to the court with the result that it is open for the Appellants to argue that the Court of Appeal must have acted unfairly in making a wasted costs order against them."
[73]I cannot regard the floating of the possibility that the limits of litigation privilege may need to be re-examined and the absolute nature of that privilege may perhaps be watered down in that one speech in their Lordship's House as in any way amounting to authority which enables me to depart from the principles which I have already set out.[74]In my judgment I must, on this appeal, adhere to those principles and conclude that Article 6 does not enable the Claimants to see documents which would otherwise, under the common law principles, be the subject of litigation privilege.[75]For those reasons, ground 1 of this appeal is dismissed.