Curless v Shell International Ltd

The Court of Appeal allowed Shell's appeal against the Employment Appeal Tribunal's decision that two paragraphs of the claimant's particulars should not be struck out on the basis that they relied on legally privileged material. The court held that the April 29, 2016 email was properly interpreted as routine legal advice about how to deal with a potentially vulnerable employee in the context of a wider reorganisation and so attracted legal professional privilege. The overheard pub conversation could not be used to alter that interpretation and was itself privileged, so neither communication met the high threshold for disapplying privilege under the iniquity (crime/fraud) exception.

Key legal principles applied were (1) the proper approach to interpreting contemporaneous legal advice, (2) the protection afforded by legal professional privilege (LAP) to communications seeking or giving legal advice, and (3) the high prima facie standard required to invoke the iniquity exception to privilege.

Background and parties: The claimant, a former senior in-house lawyer, pursued disability discrimination, victimisation and unfair dismissal claims against his employer, Shell, after a redundancy process following Shell's acquisition of BG Group. The second claim alleged that Shell had used the redundancy process as pretext to terminate him because of disability-related complaints and protected acts. Shell applied to strike out paragraphs of the claimant's particulars which relied on an April 29, 2016 email and an overheard pub conversation, on the basis that they disclosed material protected by legal professional privilege.

Procedural history: The Employment Tribunal (Judge Tsamados) ordered the relevant paragraphs struck out, finding the email and the pub conversation were privileged and that the iniquity exception did not apply. The Employment Appeal Tribunal (Slade J) allowed the claimant's appeal, interpreting the email as advice on using the redundancy exercise as a cloak to dismiss the claimant for reasons related to his disability and protected acts and holding that the iniquity exception could apply. Shell appealed to the Court of Appeal.

Issues considered:

• Whether the April 29, 2016 email was privileged and, if so, whether it nevertheless fell within the iniquity (crime/fraud) exception to legal professional privilege.
• Whether an overheard conversation in a public house could be used to interpret or displace the privileged status of the email or was itself protected.
• Whether an anonymity order or restriction on reporting should be made for the appeal.
• Whether fresh evidence should be admitted at the appeal stage.

Court's reasoning and disposition: The Court of Appeal treated the meaning of the email as a question of law and agreed with the Employment Tribunal's interpretation that the email was standard legal advice about how to manage the claimant in the context of a wider reorganisation, not advice to effect a deceptive or iniquitous dismissal. The court held that the pub conversation, which post-dated the email, could not be used to alter the meaning of the contemporaneous email and in any event was privileged. Because the court resolved the email as privileged on its ordinary meaning, it did not need to decide the scope of the crime/fraud exception; the point was therefore not reached. The court refused an anonymity order for the appeal, emphasising the importance of open justice, and refused to admit late evidence as irrelevant to the proper construction of the April 29 email. The appeal was allowed and the Employment Appeal Tribunal's order was set aside.

Appeal allowed. The Court of Appeal concluded that the April 29, 2016 email was properly interpreted as routine legal advice aimed at managing risk in a redundancy/reorganisation context and therefore attracted legal professional privilege. The overheard pub conversation could not be used to change that construction and was also privileged. Because the email retained that ordinary privileged meaning, the court did not need to determine the applicability of the iniquity (crime/fraud) exception. The Employment Appeal Tribunal's contrary interpretation was set aside.

Employment Tribunal (Judge Tsamados): preliminary hearing struck out two paragraphs of the claimant's particulars as referring to legally privileged material; Employment Appeal Tribunal (Slade J) [2018] UKEAT 0261/17/0908 allowed the claimant's appeal and set aside the ET order; Court of Appeal [2019] EWCA Civ 1710 allowed Shell's appeal and restored the position that the material was privileged.