Curless v Shell International Ltd

Legal advice about applying a genuine redundancy exercise to an employee who has brought discrimination proceedings remains privileged where it gives conventional advice about lawful processes, safeguards and litigation risks. It does not lose privilege merely because dismissal might end an employment relationship marked by continuing disputes.

The meaning of a written communication is a question of law. A later conversation involving an unidentified person, with no established knowledge of or connection to the communication, cannot give an otherwise innocuous email an iniquitous meaning. Derogation from open justice requires exceptional, clear and cogent grounds and must be strictly necessary.

An employed senior legal counsel brought disability discrimination proceedings and an internal grievance. During a subsequent group-wide reorganisation, the employer obtained legal advice about whether voluntary severance or compulsory redundancy processes could be applied to him. The employee anonymously received the relevant email and also alleged that he had overheard lawyers discussing the use of redundancy to manage him out.

The Employment Tribunal held that both matters were protected by legal advice privilege and struck out the corresponding parts of his second claim. The Employment Appeal Tribunal, in [2018] UKEAT 0261/17/0908, set that decision aside because it interpreted the email as advice to use redundancy as a cloak for a dismissal motivated by disability-related complaints.

The central issue was whether the email and conversation could be relied upon notwithstanding the employer's claim to legal advice privilege.

1. Appeal allowed. The proper meaning of the disputed email was a question of law. No special deference was therefore due to the Employment Tribunal's interpretation, although that interpretation was correct. The Employment Appeal Tribunal had wrongly construed the email as advice to use redundancy as a cloak for dismissing the employee for making disability-related complaints (paras [47]–[50]).
2. The employer was undertaking a genuine reorganisation involving job losses. The email gave conventional legal advice about applying voluntary severance or compulsory redundancy processes to the employee with appropriate safeguards and in the right circumstances. It recognised the competing risks of an unfair dismissal or discrimination claim if he were selected and continuing proceedings and impasse if he remained employed. It did not advise underhand or iniquitous conduct. The email consequently remained privileged and could not support the employee's claim (paras [48]–[52]).
3. The later pub conversation could not affect the email's interpretation. There was no evidence that the unidentified speaker had seen the email or that her information came from it. Later gossip from an unconnected person could not taint the earlier advice. The court did not need to determine a wider, freestanding question about privilege in the conversation (para [53]).
4. The scope of the crime or fraud exception did not arise. Counsel agreed that the exception was inapplicable on the Employment Tribunal's interpretation but would apply if the email formed part of the dishonest plan identified by the Employment Appeal Tribunal. The court therefore left unresolved the argument that the exception is confined to dishonesty and that broader public-policy reasoning in earlier authorities cannot stand with later House of Lords authority (paras [54]–[60]).
5. The employer's anonymity application was refused. An appellate anonymity or reporting-restriction order must be made by the Court of Appeal itself. Open justice may ordinarily be displaced only exceptionally, on clear and cogent grounds, and no further than strictly necessary. The possibility that the future tribunal judge might learn of inadmissible material was inadequate because judges routinely disregard inadmissible evidence (paras [35]–[41]).
6. The employee's application to adduce fresh emails was refused. The emails pre-dated the disputed communication by about 16 months, arose in a materially different context and could not influence its interpretation. Their admission would undermine rather than further the overriding objective (paras [42]–[46]).

1. Court of Appeal (Civil Division): Allowed the employer's appeal and restored the conclusion that the disputed email remained protected by legal advice privilege: [2019] EWCA Civ 1710.
2. Employment Appeal Tribunal: Slade J allowed the employee's appeal and set aside the Employment Tribunal's decision: [2018] UKEAT 0261/17/0908.
3. Employment Tribunal: Ordered the relevant paragraphs of the disability discrimination and victimisation claim to be struck out because they referred to privileged material.