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Posted By David Sinclair
Myself and another solicitor recently facilitated an accident investigation workshop at an IOSH Yorkshire branch seminar.
One of the issues raised and discussed was the issue of "Legal Professional Privilege". As a result of the feedback from the workshop, i am preparing an article on privilege and I wondered (as a straw poll) how many of you seek to make accident reports privileged.
Please feel free to email me directly if you wish to maintain confidentiality.
As I said, this is a straw poll and none of the information I receive will be used in the article, other than as an overall figure.
Your help is most appreciated.
David
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Posted By George Wedgwood
I do this when it looks likely that we are to be prosecuted and have instructed our laywer to open a case on the incident. They have told us not to append documents with the 'legal privilege' statement unless they have been formally actioned. George
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Posted By Kieran J Duignan
I claim to do so, David, but I've felt anxious about the basis for doing so.
Would you be so kind as to make a copy of your article available, please?
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Posted By David Sinclair
Thanks for your input. I will be happy to send you a copy of my article.
Regards.
David
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Posted By David Sinclair
George,
Sounds like sound advice to me.
Regards.
David
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Posted By steven bentham
I thought company accident reports were to discover what happened and prevent another one happening.
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Posted By David Sinclair
Steven,
They are, but in identifying what went wrong you may also be admitting liability.
This of course can be used against the company and/or individuals.
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Posted By John Murgatroyd
So the purpose of the intended declaration of legal privilege is to conceal by confidentiality the facts of the accident ?
You intend that the facts, as investigated, are concealed from other parties by the use of legal privilege ?
I think you may be on a loser there...
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Posted By Martyn Hendrie
I think that the positions expressed by both Steven and John,either intentionally or otherwise, express a rather naive view. Of course accident investigation is about establishing the facts to help prevent a recurrence. No, legal privilege is not to conceal the facts.
If you are faced with legal action, either civil or criminal, you are in an adversarial system and there is no requirement to make your opponents case for them.
I have always been under the impression that an accident report should be limited to matters of fact that can be proven. Any conjecture if the facts are unclear or any conjecture as to failures in either systems or legal compliance should be submitted to the company's legal advisers as information for defending legal action (as privileged information)
David I too would appreciate a copy of your article when it is published if you don't mind.
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Posted By jom
David's project should be valuable.
There's much misunderstanding about LPP. It's good to have a legal person write about this, so let's support David in his work.
John.
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Posted By Robert K Lewis
Coming from a similar position to David I must assert the needs of legal privilege at times. It is more than simply putting a statement on the front of a document though. As David will no doubt explain the courts have rejected many pleas of privilege because of deficient process in the formulation of the document.
For certainty such documents have to be formally requested by a solicitor and there needs to be a clear process to arrive at this point. It is difficult to attach privilege after a document is produced.
We normally include processes for privilege within a Disaster & Emergency Man. System, as this is its most suitable location. Be careful of trying to write such a process without advice as I have seen many which do not jump the necessary hurdles.
Privilege is not, as others have noted, about hiding the facts, it is about ensuring a proper defence if required. The HSE have right of access to all facts and can analyse them internally for prosecution if they wish.
Bob
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Posted By jom
Robert wrote:
"The HSE have right of access to all facts and can analyse them internally for prosecution if they wish. "
In complex acidents they may not have access to all the facts.
In complex plants the company that runs the plant clearly knows more about how the plant operates than any outsider.
The company is better placed to determine causes and contributing factors.
It's a diabolical topic.
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Posted By Mark Talbot
I have worked at four different places as H&S manager, and none have sought to use this in investigation.
Although I would be very interested in the paper, I am not sure that I would like to seek to use it.
If I am beginning to understand it properly, an investigation requested by a lawyer can be kept completely confidential ... but what if it goes to court, does it then become subject to disclosure rules?
If that report is confidential, would a separate report be needed for other purposes?
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Posted By Robert K Lewis
The HSE are able to investigate wherever they wish and have far wider powers of investigation than the police in some aspects. It is a fallacy to perceive legal privilege as a means of hiding the facts of a situation from the HSE or any other enforcement body for that matter.
It is a sensitive area and can easily be seen as a lack of openess but in reality it can be necessary to enable a defence in the face of the HSE using section 20 powers to elicit self incriminating information.
Every company facing any enforcement action has a need to deal with the HSE in a proper manner within the requirements of the law. Judges rules were formulated around this area to stop abuses, if however judges did not perceive the need for privilege they would be in a position to eliminate it. The fact that it continues to be recognised as necessary by judges indicates they perceive a need on occassions. At the end of the day a judge can rule disclosure of any document.
The complexity of the plant is not a bar to HSE investigation - that is what specialist inspectors are for - How do you think they enforce the Nuclear industry. In the event of death it is the police who will lead in any case and the whole question of the proper handling of documents and their production has to be a concern to all organisations
Bob
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Posted By steven bentham
If you hide behind legal privilege, then an investigating inspector will carry on without your cooperation. If you are unable or unwilling to learn from accidents (accepting you may need to act initially differently in a fatal accident) then an inspector may take this into account when deciding if enforcement action should be taken.
Writing Legally Privilege has little value in a criminal investigation. But a positive culture to learn may help you in court.
HSE have a good publication HSG245 Investigating accidents and incidents, worth a look.
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Posted By Robert K Lewis
I rather feel that the understanding of legal privilege is being led by a belief that it is intended to hide things from or not co-operate with enforcement bodies. This is certainly not the case. I don't think I or David or others have sought to suggest it is.
In any situation where there is a prosecution potential for a criminal act there has to be areas of communication between the possible accused and the legal adviser that is protected. This is a perfectly proper situation and judges have specific rules to control its functioning. With their wide powers of seizure the HSE can gain access to copies of most documents. However if matters are self-incriminatory then the courts have always sought to put boundaries to any executive powers in order to ensure a proper conduct of justice.
My earlier postings indicate that it has to be a formalised process that is instituted in order to claim any sort of privilege, it cannot be attached to a document simply by writing a statement in it saying that it is privileged.
Bob
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Posted By Lumpy
Bob,
Some people are obviously having problems with regards self-incrimination. I have no problem with legal priv, and have used it in the past in major pollution incidents. While we investigated, found causes etc etc. and put in place new control measures, we were not about to release to the Authorities reports stating that "in my opinion our lack of maintenance caused the leak", that is for the Authorities investigations to conclude.
The authorities can interview anyone and we expect all our employees to answer all questions ... but only that .... they should not offer up other infromation. We have investigated and will prevent it happening again ... legal priv is about giving yourself a defence, not about evading investigation or hiding the facts.
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Posted By garyOrange
Do not internal accident reports or any other material relevant to a case subject to the "disclosure" rules?
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Posted By Robert K Lewis
Lumpy
We are both on the same lines fortunately. There is a bit of a leap mentally to keep the two elements clear.
GaryO
Not quite sure what you are asking but essentially if a document is not prepared under legal privilege in anticipation of a court hearing via a compliant procedure then it is open for all investigators to view.
Bob
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Posted By David Sinclair
Charles,
Thank you for this. It is extremely interesting and it should be of benefit to other members of the forum.
Regards.
David
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Posted By David Sinclair
Thank you to all those members who have responded to my question publicly and privately.
It is clear from the debate that an article clearing away some of the myths on this topic would be useful.
I will do my best to get it finished as soon as possible.
David
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Posted By jom
This is indeed an absorbing topic.
I hope David can set us all straight on the basics of the issues.
A few things I have learnt:
LPP is a "privelege", not a right.
It is a privelege of the client, not the laywer.
It's purpose is to facilitate justice for the benefit of society.
If the judiciary thinks LPP in a particular case is against the societal interest it can be put aside.
John.
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