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#1 Posted : 16 November 2021 11:21:51(UTC)
Rank: Forum user

Good day to you all,

I wanted to ask the opinion of my peers about obtaining a legally privileged document following an accident by asking for legal advice from the document being created and ask if you have obtained such a status of document knowing legal proceedings would be taken and has it given you an advantage prior to or in court proceedings?

Thank you,


peter gotch  
#2 Posted : 16 November 2021 11:41:17(UTC)
Rank: Super forum user
peter gotch

Hi D

This is problematic partly as many organisations attempt to go straight into "privilege" mode.

When I worked for HSE, we were supposed to do our investigation reports in two parts - one on white paper setting out the facts we had established and statements etc taken and one on green paper setting out our legal thinking. Nobody was ever quite sure whether our procedures were sufficiently sound to stop the green bits getting cited by either party in legal proceedings!

But, essentially, the factual information will be legally disclosable - so as example if the company's investigation establishes that the method statement was NOT followed this CANNOT be hidden behind privilege assuming those looking for it know how to obtain it.

So, privilege is about the discussion of the pros and cons of defending - may often come down to an expert's view on what or was not "reaonably practicable" in their opinion.

Very rarely will an EL case actually turn on such issues. Cases are usually won and lost on the facts, and those are rarely in dispute.

So, the result is that those who dive into "privilege" mode will end up finding that the facts will still be disclosed whilst potentially irritating the Judges for attempts at obfuscation (long word used for deliberate reasons!!)

#3 Posted : 16 November 2021 20:22:55(UTC)
Rank: Super forum user

inappropriate use can lead to whole sections of evidence being thrown out...stick to a good factual investigation...if you are reviewing cases with your legal team are you are giving opnion on the merits of the case you can and in most cases must mark it as priviledged...

#4 Posted : 17 November 2021 10:20:21(UTC)
Rank: Forum user

If the document is prepared for the purpose of investigation and assumes litigation is likely then that document may well be privileged.  However a document that was required to be in place prior to the event may well be disclosable.  For instance a set of RAMS may be disclosable, however assessment of the RAMS after the event may be subject to litigation privilege.    

thanks 1 user thanked Sweep for this useful post.
A Kurdziel on 17/11/2021(UTC)
#5 Posted : 17 November 2021 11:11:04(UTC)
Rank: Super forum user

that is litigation priviledge...documents protected...advice between you and your lawyer legal advice privilige... isn't necessarily the same and inappropriate use of the latter can cause problems..

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