Litigation Privilege

Before we go any further it is important that we remember the purpose of health and safety is to protect people from harm and if we do this successfully then the chances of ending up in court should be nil.

That said following an accident or incident, it is natural that your second thought is likely to be whether you will end up in court or not.

Recently a piece of legal precedent has been established which will have a significant impact upon how you gather information following such an incident and how that evidence might be used in court.

Legal or more accurately “litigation privilege” protects the information and communications between a lawyer and their client; however, for the privilege to exist litigation must be in progress or being contemplated.

The recent case of R v Jukes established that just because an accident is being investigated by HSE it does not mean that a prosecution would naturally follow and it is not therefore “adversarial litigation”.  This means that any such information or communication is not covered by privilege.

Furthermore, where an employee is being prosecuted individually any statement made by them to the employer’s solicitor is not covered by that privilege as it was not the employees privilege to claim.

The HSE recognises, in the introduction to HSG245, that following the Wolfe Report “fear of litigation may make you think it is better not to investigate” however our advice would always be to take the opportunity to identify what went wrong in order to prevent a recurrence.

But, speak to your insurers and legal team first, to ensure that everybody providing information or evidence is protected during this process.