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!!)

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.