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In house lawyer prevented from relying on a leaked email and an overhead conversation

28 November 2019. Published by Jonathan Cary, Partner and Steven Rajavinothan, Associate

Mr Curless was a senior legal counsel at Shell International Limited (Shell) from January 1990 until he was made redundant in January 2017. He suffers from Type 2 diabetes and Obstructive Sleep Apnoea. He brought a claim against Shell for disability discrimination, victimisation and unfair dismissal.

In support of his claim, Mr Curless relied on a leaked email from April 2018 sent by Shell’s Managing Counsel, Ms Alex Ward, to Mr Curless’ manager. In this email, Ms Ward explained that Shell could use a planned re-organisation of its in-house legal team in order to terminate Mr Curless' employment. Ms Ward had added that this approach was worth considering so as to avoid the risk of "impasse and proceedings with ongoing employment with no obvious resolution". Mr Curless alleged that the emails showed that Shell's redundancy process was a sham used to terminate his employment, and that he was made redundant because he had raised his grievances internally about his disability discrimination and because he had brought a claim in the Employment Tribunal.

Mr Curless also relied on a conversation he overheard in a London pub in or around May 2016 between two people, who he believed to be lawyers from Lewis Silkin (a firm advising Shell). The two individuals were discussing how a senior lawyer's days at Shell were numbered because the lawyer’s employment tribunal claim was to be handled firmly, and that Shell planned to use the context of a redundancy exercise to terminate his employment purportedly by reason of redundancy.

Employment Tribunal and Employment Appeal Tribunal decisions

The Employment Tribunal had denied Mr Curless the ability to rely on the email or the conversation on the basis that both were legally privileged. The Employment Appeal Tribunal had reversed this decision, finding that the email showed that the redundancy exercise was used as a "cloak" to dismiss Mr Curless and that the legal advice had fallen foul of the "iniquity principle" by being provided or received to commit an iniquity.

Findings

The Court of Appeal found:

1. The email remains legally privileged and cannot be relied upon by Mr Curless. The advice contained within the email was not to act in an underhand or iniquitous manner, rather, it was the "sort of advice which employment lawyers give "day in, day out"" when an employer wishes to consider making redundant an employee who is regarded as underperforming.

2. The overheard conversation could not be used as an aid to interpret the email from Ms Ward. The email predated the conversation by two weeks and there was no evidence that the individuals whose conversation was overheard, had seen Ms Ward's email. Therefore, gossip from third parties could not taint the advice in the email.

3. The anonymity order from the Employment Tribunal (where the case was referred to as X v Y Limited) was not binding on the Court of Appeal. The Court of Appeal rejected Shell's application for a similar order on the basis that there is a high bar to meet in order to displace the general position that a hearing should be held in public. The mere fact that a judge conducting a future substantive hearing may have to exclude from their consideration evidence was found to be inadmissible is an insufficient reason, as it is standard practice for judges to decide on the admissibility of evidence before or during a trial.

Comment

 

The Court of Appeal's judgment will reassure employers that legal advice obtained will remain privileged where it is advice which is of a nature typically given in the circumstances.  However, the fact that the Court of Appeal considered the text of the email to determine this issue demonstrates that it remains open to parties to argue that legal advice is not privileged because it has fallen foul of the "iniquity principle".

 

The question of whether one can rely on overheard conversations again will be one that is heavily fact dependent.  The fact that there was no evidence in this case that the overheard conversation was directly related to Ms Ward's email meant the Court did not need to consider whether the conversation had led to privilege being waived over that email.