Legal Privilege and Health and Safety

Legal privilege, particularly in the context of health and safety, is the concept where certain types of documents and information can be withheld from a court or from the health and safety executive, or another party suing the organization because they are restricted in a particular way.

There are two types of legal privilege:

  1. Legal advice privilege – this is advice given by a lawyer to the Board of an organisation and is proper legal advice. That is similar to solicitor advising someone during a police investigation. The police are not allowed to see what that advice is or what the solicitor has advised.
  2. Litigation privilege – this is where there are may be documents or reports, or information from meetings which have been undertaken in anticipation of there being legal proceedings.

Many organizations fail to recognize how easily they can create a series of documents, when an instance has occurred, which they imagine are going to be confidential to the organization, which are subsequently obtained by an enforcing authority – the Health and Safety Executive or someone bringing litigation – and are recovered on the basis of them being relevant to that investigation.

For example, when an incident occurs, a Director of your organization might ask for a member of staff to quickly produce a written report on what has happened. This can be a very bad idea because a rushed report, with the warts and all, is what will eventually become available to the Health and Safety Executive, or anyone who wishes to bring a civil action.

The appropriate response, particularly after a serious instant, is for the Director to ask your company’s legal advisers to instruct someone, either an external party or an internal party, to produce a report in anticipation of proceedings. As long as your lawyers are involved at every stage, and provided the true dominant purpose of the report is for defending legal proceedings, there is a good chance of keeping the report confidential and legally privileged.

Many people seem to think that they can write ‘Legally privileged and Confidential’ on a report and it will in some way protect it. It will not. Similarly, that information has to be kept quiet and confidential. The moment it is circulated around your company, legal privilege will be lost.

It is important to take advice at an early stage, particularly when there has been a serious instant. Do this before any documents are generated, which may be prejudicial, not reflect the true circumstances and not be prepared with the thought and independence that is needed.

At Quadriga we can provide you with the confidential advice that you need, order to maintain legal privilege of any health and safety documents that you produce. Please call us on 0118 929 9920 or click here to contact us before taking any other action.

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