An in-house lawyer cannot rely on a leaked email or overheard conversation in a pub to support his employment claim, the Court of Appeal has ruled.
In Curless v Shell International Ltd, judges upheld an appeal by the oil giant which argued it was entitled to claim legal advice privilege on two paragraphs of a claim by its former senior legal counsel Michael Curless. The court said Shell was not acting unfairly and so the paragraphs did not meet the so-called ‘iniquity principle’, which would make them admissible.
The lawyer was employed by Shell from 1990 until his dismissal allegedly for redundancy in January 2017. Curless, who suffers from type 2 diabetes and breathing problems, alleges disability discrimination, victimisation and unfair dismissal. Shell denies all allegations.
The two paragraphs under scrutiny relate to an overheard conversation in the Old Bank of England pub on Fleet St and an email exchange between two of Curless' seniors. Both happened before his employment ended. Employment tribunal Judge Tsamados said the paragraphs should be struck out as Shell was entitled to claim legal advice privilege: Mrs Justice Slade in the Employment Appeal Tribunal allowed Curless’s appeal and set aside that decision.
Curless explained in his claim he had been in the pub when two people, who he believed to have been lawyers from London firm Lewis Silkin, mentioned a senior lawyer at Shell who had started an employment tribunal claim. They were, submitted Curless, heard saying this individual’s ‘days are numbered’.
Curless said he then learned that Shell’s managing counsel had emailed his line manager’s boss to say the company planned to re-organise the in-house legal department to terminate Curless’s employment. This, said the claimant, indicated the redundancy process was a ‘sham’.
Shell submitted that the email was a standard piece of advice from lawyers dealing with redundancy and was headed ‘legally privileged and confidential’. The employment tribunal had accepted the advice was aimed at avoiding rather than evading possible legal action, and accepted that the case for an iniquity exception, which might waive privilege, had not been made out.
In a joint judgment, Master of the Rolls Sir Terence Etherton, Lord Justice Lewison and Lord Justice Bean, agreed the email was the sort of advice which employment lawyers give ‘day in, day out’ and was not an indication of Shell lawyers acting in an underhand way.
The judges said the overheard conversation was relied upon only as an aid to interpreting the disputed email, and so was also not admissible. The claim will now go ahead without the non-admissible elements.