The power of privilege

In the immediate aftermath of a serious or fatal incident there is the “golden hour” in which to gather information and evidence regarding what happened. An organisation will quite properly want to investigate the circumstances of the incident, identify the cause(s) and consider whether any changes ought to be made to prevent recurrence.  

It is also the key period in which to take tactical and strategic actions which can impact the rest of any criminal or civil proceedings.  

One such action is the commencement of a privileged internal investigation. Often when we ask a client if they have commenced a privileged investigation, we are met with the question of what that means, or concern that a privileged investigation will somehow be perceived as a “cover up”.  

The reality is that as well as the business obtaining information immediately following an incident, requests are also likely to be made by regulators (police, HSE, local authority), the coroner where there has been a fatal incident, and solicitors acting in any civil claim, amongst others. Such bodies may compel for disclosure to be made except for any documents which are covered by legal professional privilege / legal privilege. Put simply, privilege overrides any legal duty in favour of disclosure.  

The rules around when and how to apply privilege can be complicated and we always recommend that legal advice is sought on the issue in the event of a serious incident. But, as a rule, where there has been a serious incident as a result of which civil and/or criminal proceedings are deemed to be likely, a privileged investigation should be considered. The assertion of privilege allows the business to fully and frankly investigate an incident. In our experience, in the immediate days and weeks following a serious incident, organisations can be very self-critical, sometimes justifiably so, but often in the fullness of time and when the all the facts are known, matters thought to be relevant, or causative of the incident are sometimes not. However, if these findings are recorded in a document which is disclosable to a regulator, or claimant solicitor during proceedings, it might unnecessarily become evidence which might prove harmful to the company’s defence.  

We recently worked with our large loss team, to advise and represent a national food distributor in relation to a regulatory investigation for potential health and safety offences following a workplace incident. The employee sustained serious injury and brought a claim for damages.   

On notification of this incident, we were able to arrange a joint site visit and provide early advice which included requesting that a privileged investigation was commenced so that we could fully advise on the potential regulatory and civil proceedings. This allowed time for the company to investigate the incident fully, obtain legal advice on the investigation and produce a factual and accurate report which would not jeopardise or undermine its position.  

The joint approach also allowed for the following: 

1. An opportunity to speak with relevant individuals and obtain information relevant to both aspects of the case. Legal processes can be intimidating and overwhelming when there has been a serious workplace incident and early involvement eliminated the need for individuals to explain their account to more than one lawyer at what can be a traumatic time.  
2. A unified approach which all parties were clear on and in agreement with. 
3. Controlling costs as there was no unnecessary duplication of work.