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19 November 2019
Mr Curless was a senior legal counsel at Shell International Limited 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, 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:
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.
The Court of Appeal found as follows:
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.
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