LEXOLOGY: In-house lawyer prevented from relying on leaked email and overhead conversation

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Facts 

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

Curless also relied on a conversation that he had overheard in a London pub in or around May 2016 between two people, whom he believed to be lawyers from Lewis Silkin (a firm advising Shell). The two individuals had been discussing:

• how a senior lawyer’s days at Shell were numbered because the lawyer’s employment tribunal claim was to be handled firmly; and
• Shell’s plan to use the context of a redundancy exercise to terminate the lawyer’s employment purportedly by reason of redundancy.

Employment Tribunal and Employment Appeal Tribunal decisions

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

Court of Appeal decision

The Court of Appeal found as follows:

• The email remained legally privileged and could not be relied on by 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.
• The overheard conversation could not be used as an aid to interpret the email from Ward. The email predated the conversation by two weeks and there was no evidence that the individuals who had been overheard had seen Ward’s email. Therefore, gossip from third parties could not taint the advice in the email.
• 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 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 will remain privileged where it is advice 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 arguing that legal advice is not privileged because it falls foul of the iniquity principle.

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

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

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