Legal advice privilege applies to confidential communications which pass between a client and their lawyer, where they have come into existence for the purpose of giving or receiving legal advice about what is the appropriate action to take in the relevant legal context. However, privilege can be lost where the communication comes into existence for the purpose of furthering a criminal or fraudulent act – known as the “iniquity principle”.
Mr Curless was a senior lawyer at Shell and had brought a tribunal claim alleging disability discrimination. Subsequently, following an extensive redundancy programme, he was made redundant. He then brought a second claim, alleging his dismissal for redundancy was a sham and the reason for his dismissal was that he had brought a claim against the company – relying on an email between lawyers at the company which he had been sent anonymously, and an overhead conversation in a pub. Shell said that the email and conversation were privileged.
The Court of Appeal ruled that there was no dispute that Shell was engaged in a redundancy process, and the advice was simply about whether and how the redundancy process could be applied to Mr Curless. The Court said it was “the sort of advice which employment lawyers give ‘day in, day out’ in cases where an employer wishes to consider for redundancy an employee who (rightly or wrongly) is regarded by the employer as underperforming”. And there was nothing to suggest it would have been anything other than conventional advice. As neither the advice nor the conversation was found to be underhand and iniquitous, they remain privileged and, subject to an appeal, Mr Curless cannot rely on them in court.
This decision confirms that the threshold for waiving legal advice privilege is high and will only be allowed in exceptional circumstances. For the iniquity exception to apply, it must be shown that the privileged material came into existence in the pursuit of an unlawful scheme.
This case was unusual in that the legal advice was leaked. Confidentiality is a key feature of privilege, and employers should take steps to ensure that confidentiality is maintained. So it’s important to restrict the number of people the advice is shared with – the wider it is known and the more it is discussed, the less likely it is that it will remain privileged.
For a detailed update on this decision, see Legal advice privilege – where are we now?
Curless v Shell International Limited