Scotthorne v Four Seasons Conservatories (UK) Ltd - Non-lawyers' advice can be subject to litigation legal privilege [2010] EAT

Advice given, even by non-lawyers, is subject to litigation privilege if it is given for the dominant purpose of litigation, including how to avoid it and how to be best placed should it occur.

An altercation at work led to Mr Scotthorne being dismissed - for gross misconduct according to Four Seasons. He was dismissed on 6 May 2009, the altercation occured on 21 April 2009, and Mr Scotthorne alleged that Four Seasons had been looking for a way to get rid of him "for some time prior to his dismissal". He claimed unfair dismissal, and as part of the process before the employment tribunal sought disclosure of documents in the form of advice given to Four Seasons by its non-legal advisor, RBS Mentor. An employment judge (EJ) refused to order disclosure of these documents. He ruled that, although relevant to the proceedings (since Mr Scotthorne was alleging that dismissal followed a protracted period during which Four Seasons was seeking to dispense with his services), the documents were "protected by legal advice privilege, but not litigation privilege insofar [as] the documents that pre-date the disciplinary proceedings that led to [Mr Scotthorne's] dismissal are concerned."

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