Generally legal advice given to a client is privileged (and therefore confidential) unless it can be shown to have been “iniquitous” or underhand. In Curless v Shell International Ltd, the Court of Appeal held that advice in an email which talked about using the context of a reorganisation to make an employee redundant who was pursuing a tribunal claim was covered by legal privilege.
Basic facts
Mr Curless, a senior lawyer at Shell from 1990, suffered from type 2 diabetes and obstructive sleep apnoea. In 2011 issues were raised about the general standard of his work; and in August 2015, he brought claims of disability discrimination as well as a grievance that Shell had failed to make reasonable adjustments to accommodate his disabilities.
After a group-wide reorganisation, he was made redundant in early 2017 after which he lodged a number of tribunal claims. In particular, he argued that his redundancy was a sham designed to get rid of him because of his disability and his earlier tribunal claim.
By way of evidence, he referred to a conversation he had overheard in a bar in May 2016 between two lawyers from legal firm Lewis Silkin about a senior lawyer at Shell who had brought a disability discrimination claim but whose “days were numbered” under the auspices of a redundancy exercise. Secondly, he referred to an email dated April 2016 (which was sent anonymously to him in October), which was headed up “legally privileged and confidential”. The email originated from a senior lawyer at Shell and was sent to his line manager’s boss, putting forward the idea of using a reorganisation of the in-house legal department to get rid of Mr Curless.
Shell applied to strike out the reference to the conversation and the email on the basis that they were protected by legal advice privilege (LAP). Mr Curless argued that the email fell within the principle of “iniquity” and was therefore admissible.
Tribunal and EAT decisions
The tribunal accepted Shell’s interpretation of the email as a “standard piece of advice from lawyers when dealing with redundancy” which did not raise iniquity. Although it accepted that protection against discrimination and victimisation was important, it did not include the iniquity exception which was aimed at matters relating to crime and fraud. Although the conversation in the pub was clearly “indiscreet”, privilege had not been waived as that privilege belonged to Shell and not the people discussing the matter in public.
Overturning that decision, the EAT held that as the email concentrated exclusively on how redundancy could be used to get rid of Mr Curless and his ongoing allegations of disability discrimination, it was not only an attempted deception of Mr Curless but also of an employment tribunal in future legal proceedings. This was, therefore, a prima facie case of iniquity. Likewise, Shell could not claim LAP in respect of the overheard conversation in the bar.
Decision by Court of Appeal
Overturning the EAT decision, the Court of Appeal held that the advice contained in the email was indeed that which employment lawyers give “day in day out” in cases where an employer wishes to consider for redundancy an employee who (rightly or wrongly) is regarded by the employer as underperforming. This was not, therefore, advice to act in an underhand or iniquitous way meaning that Mr Curless could not rely on in to support his tribunal claims.
As for the conversation in the bar, there was no evidence clarifying the source of the information being shared nor whether the person concerned had seen the email setting out Shell’s intentions. As such, the Court concluded that “the advice in the email cannot be tainted by a conversation involving gossip from someone else after the event”.
Comment
It remains the case it will be very unlikely that a party will be able to refer to legal advice obtained by the other side in support of their case.