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14 October 2022 / Ian Smith
Issue: 7998 / Categories: Features , Employment , Privilege
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Employment law brief: 14 October 2022

97423
Can documents retrospectively acquire legal professional privilege? Not without a time machine, says Ian Smith in this month’s brief
  • Early conciliation certificates in multiple cases.
  • Legal professional privilege—no retrospective effect.
  • Reconsideration of judgments and default by a representative.
  • Possible bias by an Employment Appeal Tribunal side member.

Employment case law in the last month has concentrated largely on matters of procedure, rather than substance. The first two cases show that, in fields as intensively ploughed as these, very particular points can still arise for determination at appellate level. They concern applying the early conciliation rules to multiple cases, and whether legal professional privilege can ever apply retrospectively to documents which as initially produced were not privileged. The third and fourth cases concern fairly well-established rules (on reconsideration of judgments and possible bias by a side member) but provide particularly interesting examples, with the odd twist.

Early conciliation certificates

The judgment in Clark and Others v Sainsburys Supermarkets Ltd and Another [2022] EAT 143 starts by expressing

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MOVERS & SHAKERS

Bell Yard Kysen—Liz Giles

Bell Yard Kysen—Liz Giles

Bell Yard Kysen appoints senior legal PR and ex-government communications adviser, Liz Giles

Clarke Willmott—Lee Edwards

Clarke Willmott—Lee Edwards

Clarke Willmott boosts Southampton commercial property team with addition of partner Lee Edwards

Lime Solicitors—four promotions

Lime Solicitors—four promotions

Lime Solicitors announces four promotions

NEWS
The Attorney General, Ellie Reeves KC MP, and Solicitor General, Andy Slaughter KC MP, marked the 25th anniversary of Pro Bono Week by joining lawyers, charities, students and parliamentarians at events celebrating voluntary legal work
A polished legal defence may owe more to artificial intelligence than legal merit—and creditors risk paying the price in delay and expense
Witness evidence can be compromised by AI before a solicitor sees the draft, leaving safeguards focused on authorship incomplete
Possession claims are entering a new digital era, with procedural traps awaiting practitioners who assume familiar rules still govern every step
The Environment Agency can prosecute offences beyond environmental legislation where proceedings support its statutory functions, the Divisional Court has confirmed
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