Any legal advice between a solicitor and their client (or through an agent acting as a “means of communication” for that client) in order to give or receive legal advice is “privileged” and does not have to be disclosed. In Moving Brands Ltd and ors v Heinl and anor, the EAT held that two senior employees could not be deemed to be agents as they had acted as more than a “mere means of communication” and, therefore, communications between them and the solicitor were not privileged.
Basic facts
The claimants in this case - Mr Heinl and Ms Laikko – brought various tribunal claims against their employer Moving Brands Ltd and its parent company, Year 15 Ltd (in which they were shareholders), following their dismissal and the termination of their directorships on 17 February 2021. They also brought claims against the founding shareholders of Moving Brands (Messrs Ben and Guy Wolstenholme) and the two directors who had replaced them, Mr Toppin and Ms Kyosti.
Towards the end of the tribunal hearing of their claims for whistleblowing detriments and unfair dismissal, among others, in September 2022, Ms Kyosti said that she had received advice from the company solicitors, Lawrence Stephens, in February 2021 at a time when she was not their client.
The claimants’ solicitors immediately wrote to Lawrence Stephens requesting disclosure of that correspondence on the basis that it was not privileged. This was disputed by the firm’s representative who explained that until March 2021, he had been instructed by Mr Ben Wolstenholme and had corresponded with Mr Toppin and Ms Kyosti as his agents, such that the correspondence was covered by legal advice privilege.
Tribunal decision
The tribunal identified two categories of documentation. Firstly, correspondence between the solicitors and Mr Toppin and Ms Kyosti, into which Mr Ben Wolstenholme was copied; and secondly, correspondence between those parties into which he was not copied. To make out a claim for privilege, the two companies had to show that Mr Toppin and Ms Kyosti had acted as mere agents for Mr Wolstenholme.
The tribunal concluded that when Mr Ben Wolstenholme was not copied in, legal advice privilege did not apply as they had not acted solely as a “means of communication” in those circumstances. Conversely, when he was copied in, legal advice privilege applied as it was effectively between a solicitor and their client. Accordingly, it made a case management order (CMO) to that effect.
The companies appealed, arguing (among other things) that the tribunal was wrong to decide that Mr Ben Wolstenholme had to have been copied into email correspondence that Mr Toppin and Ms Kyosti had exchanged with Lawrence Stephens for them to constitute his agents. They had always acted on his instructions and corresponded as his agents, even if they had drafted the correspondence themselves.
EAT decision
Dismissing the appeal (except for one point), the EAT held that the tribunal had not actually made a ruling that legal advice privilege only applied to communications between a legal adviser and third parties claiming to be the agents of the client where that client had been copied in.
Instead, it had found as a fact that Mr Toppin and Ms Kyosti had acted as more than a mere “means of communication” for the client. As senior employees, they had used their own judgment to bear on issues relating to Mr Heinl and Ms Laikko and to Mr Conway’s role as solicitor. As they were found not to be agents for Ben Wolstenholme, the communications they had with the solicitor were not privileged.