In John Grisham’s novel “The Firm” Mitch (later played by Tom Cruise) leaves law school and lands what seems to be the dream job.  A high paying corporate law firm with sophisticated high net worth clients, mainly in the area of tax. But all is not what it seems: some of the clients are the Mafia.

Now suppose that our hero makes protected disclosures to his employer and is then dismissed. Upon leaving the building he takes with him certain very incriminating documents. Assuming he can afford ET fees, what are his chances of obtaining redress?

A preliminary problem is the decision of the Court of Appeal in Imerman  v Tchenguiz [2011] 2 WLR 592 where the Court of Appeal said that where documents have been wrongfully taken by one of the parties to litigation, the other’s property rights to the documents entitle him to have them returned even if they are discloseable in the litigation. So draconian is the ruling that Mitch’s solicitors may be forced to withdraw if they have seen the documents in issue.

However we can put that on one side: the Imerman case did not concern whistle blowing. In such a case it is clearly arguable that Imerman is distinguishable. There is a public interest in the dispute being heard as is clear from those provisions of the ERA giving the ET power to make a referral to the Regulator.

Perhaps more troublesome is Mitch’s need to rely on the documents in order to show the reasonableness of his belief in the firm’s wrongdoing. The documents are likely to be privileged. It has been said that legal professional privilege is a fundamental human and common law right and the clients are unlikely to consent to their disclosure.

On the other hand, in R(Morgan Grenfell  & Co Ltd) v Special Commissioners of Income Tax [2003] 1 AC 567 Lord Hoffman suggested that privilege only prevented the use of documents in a manner contrary to the interests of the client.  This passage has provoked some forthright criticism by the learned writers of Phipson on Evidence but it has its attractions suggesting that the problem may for example be overcome by redacting the names of parts of the documents likely to lead to the identification of the client.

Wider considerations suggest such a compromise. Mitch’s Article 6 rights are surely engaged and any restriction on those rights must be proportionate. Less obviously, the legal protection of whistle blowers  is required by Article 12 an point which was recognized by the ECHR in Heinisch v Germany  Case 2827/08 21st  July 2011.

Mitch’s claim faces some significant problems. He may need to think about an alternative career…. as a writer?