Legal advice privilege: Leaked email from a solicitor was legally privileged

Published 8 November 2019

The Court of Appeal has overturned an EAT decision and held that a solicitor’s leaked email did not fall foul of the “iniquity principle” and it was legally privileged.

Legal advice privilege applies to confidential information between a client and their lawyer which has come into existence for the purpose of giving or receiving legal advice. If a communication which would otherwise be privileged is created to commit a crime or fraud, it will not be privileged and can be used as evidence in litigation. This is sometimes known as the “fraud” or “iniquity” exception. The iniquity exception was considered by the EAT in the case of X v Y Ltd and the employer appealed to the Court of Appeal. The parties’ anonymity no longer applied during  the Court of Appeal proceedings.    

Mr Curless was a senior lawyer at Shell International Limited.  He brought a tribunal claim against Shell, alleging disability discrimination. While his tribunal claim was ongoing, Shell began a redundancy process and Mr Curless’ employment was terminated, ostensibly by reason of redundancy.   

Mr Curless brought a second tribunal claim. He alleged that his redundancy was a sham, that he had been dismissed for having brought proceedings against Shell and that the redundancy exercise had been used as a cloak for this.  In support of his case, he wanted to rely on an email between Shell’s lawyers which had been sent to him anonymously. The email, which was headed “Legally Privileged and Confidential” included a report of advice given that the redundancy situation was “their best opportunity to consider carefully how such processes could be applied [sic] across the board to the UK legal population including the Individual. If done with appropriate safeguards and in the right circumstances, while there is at least a wider reorganisation and process at play that we could put this into the context of…this is definitely worth considering even if there is the inevitable degree of legal risk which we would try to mitigate. Otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution.” The “Individual” was Mr Curless. 

Mr Curless also sought to rely on a conversation that he had overheard in a pub on Fleet Street, seemingly between lawyers from the firm instructed by Shell, about someone who had brought a disability discrimination complaint whose “days were numbered” as there was a good opportunity to manage that person out. 

Shell applied to strike out evidence of the pub conversation and the email on the basis that they were privileged. Mr Curless however claimed that the communications disclosed an unlawful scheme to conceal victimisation and so fell within the iniquity exception. 

The employment tribunal held that both the email and the pub conversation were privileged. However, on appeal, the EAT judge held that the email recorded “advice on how to cloak as dismissal a redundancy dismissal of the Claimant for making complaints of disability discrimination and for asking for reasonable adjustments”, and that it fell within the iniquity exception. Shell appealed to the Court of Appeal. 

The Court of Appeal agreed with the employment tribunal’s interpretation of the email. The judge held that the advice was about whether Mr Curless might be either offered voluntary severance or dismissed on the grounds of redundancy and on how this could be done "with appropriate safeguards and in the right circumstances" considering two alternative risks. If the processes led to Mr Curless being selected for redundancy, there was a risk that he would argue that the dismissal was unfair and discriminatory. On the other hand, if Mr Curless was not considered for redundancy and remained in employment, his first claim would continue anyway and there was a risk of an impasse. This was, the judge held, the type of advice employment lawyers give “day in, day out”. 

Mr Curless had argued that the pub conversation should be used in interpreting the email. However, the Court of Appeal did not agree with this. The email preceded the conversation by about two weeks; there was no evidence that the woman whose conversation Mr Curless overheard had seen the email or what the source of her information was. The advice in the email could not be tainted by a conversation involving gossip from someone else after the event.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Since the judgement in X v Y Ltd, there has been a trend towards tactical arguments by claimant lawyers that legal advice should be disclosed under the iniquity principle. This decision is therefore a welcome decision for employers and their advisors, showing that it is not easy to undermine legal advice privilege. However, the Court of Appeal’s decision was based on its interpretation of the specific wording of the email.  There are still arguments that the scope of the iniquity exception is, under current case law, too wide. The questions around this did not need to be resolved by this case but, as the Court commented, they are likely to arise in the future.  

Curless v Shell International Ltd [2019] EWCA Civ 1710 (22 October 2019)