Internal investigations – are they covered by legal professional privilege?

A thorny issue with internal investigations are the circumstances in which the investigation is covered by legal professional privilege. For example:

• If a company instructs a solicitor or barrister to conduct a disciplinary investigation, can they assert privilege since the investigator is a lawyer?
• Are drafts of an investigation report privileged?

In this article, I examine the circumstances in which legal professional privilege can apply to an internal investigation.

What is legal professional privilege?

There are two strands of legal professional privilege: (i) legal advice privilege and (ii) litigation privilege.

As summarised by Burton J in Comfort v Department of Constitutional Affairs UKEAT/0137/05/DA at paragraph 15: “there are two compartments of legal professional privilege: namely legal advice privilege, which depends upon communications of or for the purpose of obtaining legal advice (but such legal advice can be litigious or non-litigious advice) and can apply at any time whether litigation is in prospect or existence or not, and litigation privilege, which attaches only where litigation is in prospect or in existence but is wider than the communications of or for the purpose of obtaining advice, and will extend, for example, to communications with witnesses and the collection of evidence.”

A document cannot retrospectively become covered by legal professional privilege. Tomlinson J held at Three Rivers Council v Bank of England [2003] CP Rep 34 at paragraph 5 that “[i]t is axiomatic…that it ought to be possible to say of any material at its creation whether or not it is privileged from disclosure. Its status ought not to depend upon the use subsequently made of it, or the fortuity whether it is used in the manner intended”.

What is the purpose of the investigation?

It is important to consider the facts and circumstances that give rise to the investigation, as this will determine whether legal professional privilege applies.

In particular:

• If the client instructs a solicitor or barrister to carry out a disciplinary or grievance investigation for an employer, then this is unlikely to be covered by legal professional privilege, as: (i) the investigation report isn’t being produced for the purpose of giving or obtaining legal advice or assistance (rather, it is being produced to provide HR support), so it cannot be covered by legal advice privilege; and (ii) it is not being created for the dominant purpose of litigation which is either pending, reasonably contemplated or existing at the time of the communication.
• Suppose that a company is sued or prosecuted and decide to instruct a solicitor or barrister to carry out an investigation to assist the company in defending itself in litigation. Such investigation report is likely to be covered by legal professional privilege given the circumstances that gave rise to such investigation; see, for example, Director of the SFO v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006.

Draft reports – are they privileged?

This issue can be aptly illustrated by the Court of Session decision of University of Dundee v Chakraborty [2023] CSIH 22. In that case, the University argued that a draft grievance investigation report retrospectively applied legal advice privilege when a later version of the report, as amended by the University’s lawyers, was disclosed in the course of Employment Tribunal proceedings.

In particular, the University argued that disclosing the draft report would enable the other side to draw inferences on the legal advice that it had been given.

The Employment Tribunal held that the draft was not covered by privilege and made an order for disclosure. The Tribunal’s decision was then upheld by both the EAT and the Court of Session.

The Court of Session held at paragraphs 19 and 20 that:

“Although the court agrees that, as a generality, confidentiality will extend to material which would allow the reader to work out what legal advice had been given… the original report does not do that, and that is what this case is about. The respondent may be able to deduce what legal advice might have been given only because the appellants themselves revealed the existence of such advice as having influenced the content of the final version. Re Edwardian Group [2017] EWHC 2805 (Ch) did not concern litigation privilege but legal advice privilege (Morgan J at para 28). There, a distinction was made between a situation where there is "a definite and reasonable foundation in the contents of the document for the suggested inference as to the substance of the legal advice given and merely something which would allow one to wonder or speculate whether legal advice had been obtained and as to the substance of that advice" (ibid at para 37 following AWB v Terence Cole [2006] FCA 571). Even if the court were able to compare the original and final versions of Prof Nic Daeid's report, which it was not asked to do, the case fits into the latter category. The appellants have certainly not shown that it fits into the first.

…The term [waiver] connotes the abandonment of a right. That abandonment can be inferred from facts and circumstances. It will occur when the party possessing the right behaves in a manner which is inconsistent with its maintenance. This is to be judged objectively and not by reference to the subjective intention of the party. The right may be given up only in relation to a particular context… In this case, the privilege was probably abandoned when the advice, which was obtained by the appellants, was revealed to the person who was carrying out what was supposed to be an impartial investigation. It was certainly lost once it became known, as the footnote in the report stated, that the original report had been altered as a result of that advice. It must have been obvious to the appellants, when they revealed the content of the final version of the report, that the basis of that report would have to be the subject of scrutiny by the Employment Tribunal. If some of its content were based on legal advice, that advice would have to be revealed in the interests of both fairness and understanding. Waiver has been established” [Emphasis added].

What to take away

• Just because the investigation report was done by a barrister or solicitor, this does not mean that you can automatically assert legal professional privilege!
• When instructing an independent investigator, it is always important to clarify at the very outset the purpose behind the investigation and whether legal professional privilege applies. Failing to ask these questions may prove detrimental to a company who may find themselves in litigation and find out that documents which they believed were covered by privilege are in fact disclosable.
• If you instruct an independent investigator to carry out an internal investigation (which is not covered by privilege), then you cannot assume that drafts will also be covered by privilege simply because the amendments or comments to the report are made by your lawyers. Indeed, this undermines the supposed impartiality of any independent investigation.

Lucas Nacif is an employment and business disputes barrister at 42BR Barristers and is developing an independent investigations practice. Please contact Lucas’ clerks at 42BR Barristers ([email protected], [email protected] or [email protected]) should you wish to instruct him.

15th Jan 2026

Lucas Nacif

Call 2021