The roles and responsibilities of office holders, the organisations they represent and even their private contractors and suppliers are becoming increasingly complex and challenging.

Policies are generally in place to assist, but problems arise unexpectedly. Few observers foresaw the issue that “Everyone’s invited” would present for private schools as a result of the behaviour of their students outside the school boundary. Every day another institution is caught up in a complaint or sometimes a proxy battle involving parents, students, customers, staff or authorities. The consequences (in particular, to the institution’s reputation) can be of the utmost significance.

When such issues arise, before any legal advice is given, the school or other institution is well-served to engage PR professionals. This is not to spin the story for some other devious reason: it is because reputations have to be managed and can’t be left to manage themselves. The other key professional who should be at the side of the institution’s leaders from the outset is a sector specialist: someone with real experience, ideally as a principal, in dealing with the issue at hand (whether safeguarding, human resources, diversity or another).

The lawyer’s job is then more straightforward. Advice can be focused on legal outcomes: the consequences of any action that has been or may be taken, disclosure issues if any kind of statutory process may ensue, legal procedure and the merits of any claim or charge that may be brought.

And the lawyer’s presence also allows those involved to discuss the issues with more confidence. This is due to legal professional privilege which entitles a party to later withhold evidence from disclosure to another person or a court.

This privilege falls under two headings: legal advice privilege and litigation privilege. It is not an absolute protection from disclosure and the law that defines the extent of these privileges is complex. But, as a general rule what it means is that documents or oral evidence are protected where they arise in a context where legal advice is being given.

A reason for this was summarised in an important recent case (Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006) where the Court of Appeal explained that organisations:

“should be prepared to investigate allegations from whistle blowers or investigative journalists, prior to going to a prosecutor …… without losing the benefit of legal professional privilege for the work product and consequences of their investigation. Were they to do so, the temptation might well be not to investigate at all, for fear of being forced to reveal what had been uncovered“.

This can apply to allegations from any source. Internal investigations must then be conducted properly.

Any matter that requires an internal investigation is likely to have significant intricacies and there are invariably various interpretations that could be made in relation to the facts involved. A client organisation will naturally want to keep the process of interpretation within a close group of senior responsible persons. Again, privilege is designed to support the sharing of information within such a closed group. Privilege can easily be lost where there are too many in that group, since the information concerned must remain confidential.

In most cases, an investigation will require internal interviews to be carried out. This is an additional and sometimes essential role for the lawyer. The organisation is likely to want to establish the rule, before any words are spoken, that such interviews are being carried out under legal professional privilege, are confidential and that the privilege belongs to the organisation. It is therefore for the institution to waive any privilege, not the interviewee.

Trust in lawyers conducting such investigations is essential. In a follow-on case that was decided in May 2022, a judge found that the lawyer acting for Eurasian Natural Resources Corporation had committed significant breaches of his duties to his client through the contacts that he had with the Serious Fraud Office. Lawyers are under scrutiny, just as their clients are.

MDS Advisory has recently provided detailed advice in various matters involving clients in the education sector. This advice has been in the context of private rights and public rights where a complex statutory backdrop applied. We also act for claimants and respondents in employment disputes where, again, investigations are often required and must be handled with utmost care.

We invariably seek to dovetail our advice to that being offered by the other professionals and specialists in the relevant setting.