In this recent case the Employment Tribunal struck out 4 claimant's claims and awarded costs against them in the sum of £69,484 following a recording of a meeting between the respondent and their solicitor having been secretly recorded by the claimants. It appears the recording had been made covertly during a without prejudice meeting between the parties but was left recording after the claimants had left the room and recorded the legally privileged conversation between the trust and their solicitors.
The Tribunal addressed the position of legal privilege and stated,
“It is an absolute right for legal professional privilege to be protected…”
“The claimants in this case violated the principle of legal professional privilege and that violation is incapable of remedy…If the tribunal were in some way to…water down the protection of legal privilege, it would undermine the basic common law and Convention rights which are at the heart of our legal system.”
“We conclude that the claimants secured an advantage by covertly recording privileged communications and then sought to use those recordings to gain an advantage in the legal proceedings.”
Consequently the Tribunal found the case had been rendered incapable of now having a fair hearing and as such could not continue. The Claimants' claims were therefore struck out and costs awarded against them.
This shows further the Tribunals attitude to the conduct of the parties when secret recordings are used. It is not the first time that costs have been awarded because of the deemed unreasonable conduct of the parties in making secret recordings. It is however a relevant and recent reminder of the Tribunal's powers to strike out a claim where the case may be considered incapable of having a fair hearing, as well as their attitude towards the essential protection of the right to legal privilege, which between a solicitor and their client, ensures that all correspondence and discussions are confidential and not disclosable to either the other side or the Tribunal.
Brighton University Hospitals NHS Foundation Trust was facing race discrimination claims by four claimants. During the case, the NHS trust’s chief executive and lawyers received an anonymous recording and transcript of a meeting with its lawyers before the case began. The recording and transcript were of a discussion that took place between the trust and its lawyers directly after a without prejudice meeting with the claimants. The claimants and their counsel had left the room, but it was clear from the recording that someone had started the recording shortly before the without prejudice meeting ended. The employment tribunal accepted that the claimants were responsible and that a fair hearing was no longer possible. The employment tribunal struck out the four claimants’ cases and awarded costs to the NHS trust of £69,484