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.