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Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

Oops, they can read the redactions!

The UK Employment Appeals Tribunal (EAT) has made a finding of ‘cherry-picking’ and refused a claim for privilege over a redacted portion of a document when privilege had been waived over two other related documents which formed part of the same transaction. In the case of Kasango v Humanscale UK Ltd, it was common ground between the parties that a draft letter was not legally privileged but redacted parts of the letter were protected by legal advice privilege. The issue was whether the Respondent had waived privilege in the redacted parts of the letter by having disclosed two earlier draft letters which had also contained legal advice.

Despite parts of the letter being redacted, the Claimant had been able to read the redacted words although regrettably the judgment does not reveal whether this had been done using specialist software or other more agricultural means. The judgment notes that the Claimant ‘sensibly’ did not pursue an inadvertent waiver point.

In any event the Claimant having read the redacted words sought to have the redactions removed and the letter admitted in full without redactions. The Tribunal had ruled against the Claimant in the first instance on the basis there had not been cherry-picking because the letter in question did not form part of the same transaction as the two previous letters. However the EAT disagreed with this and found that all three letters did form part of the same transaction and therefore the Respondent was precluded from withholding inextricably linked redactions to the third letter. The Respondent was therefore held to be ‘cherry-picking’ as to what it would waive privilege over in a manner that could be unfair or misleading. Although not binding on the BVI or Cayman courts, this judgment could be persuasive in the event a similar dispute arose in either of those jurisdictions.

Oops, they can read the redactions!

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