Was an email which was leaked to the Claimant privileged?
Could an email containing confidential legal information lose its legal privilege either when a Claimant employee received a copy of the email from an anonymous sender, or when he overheard a group of lawyers discussing his case in a pub? No, said the Court of Appeal in Curless v Shell International Limited.
Mr Curless had been employed by Shell International as a senior member of the legal team until his dismissal for redundancy in January 2017. Ove the last six years of his employment, there had been a number of concerns around his performance. Mr Curless had also raised a number of employment tribunal claims and grievances while he was still employed, alleging disability discrimination relating to his type 2 diabetes and sleep apnoea.
During a redundancy exercise in 2016, Mr Curless was sent (by an anonymous sender) a copy of an email marked “Legally Privileged & Confidential”. The email between members of Shell’s legal team discussed the merits and risks of continuing to employ Mr Curless, or of his departing under the redundancy programme. Mr Curless’ understanding of this email was influenced by an overheard conversation in a pub a few weeks later where he heard by chance lawyers acting for Shell discussing his case. In particular, they discussed a senior lawyer at Shell whose “days were numbered” as a result of Shell being able to manage him out the organisation by severance or redundancy.
After his dismissal in 2017, Mr Curless brought further tribunal claims for disability discrimination, victimisation and harassment. To support these, he sought to rely on the confidential email he had received arguing that it should not be privileged, either because the legal advice it contained breached the “iniquity principle” (i.e. he alleged that Shell was trying to cloak an unlawful act under the veil of the redundancy programme), or in the alternative that privilege had been waived when he then heard his case being discussed in a pub. The EAT agreed with the Claimant, and so Shell appealed to the Court of Appeal.
The Court of Appeal took a different view, and supported Shell’s interpretation that Mr Curless could not rely on the email he had received, which remained subject to legal advice privilege. The advice contained in the email was the sort of advice offered by employment lawyers “day in, day out”, and focused on the respective risk profiles of two different courses of action. There was nothing iniquitous about such an approach, which was merely intended to allow a client to make an informed decision as to how to proceed. Further, the conversation overheard in the pub did not involve the sender of the email, nor it disclose the source of the information being discussed.
Comment: This is a useful reminder of how important it is for lawyers and clients to be able to discuss matters on a confidential basis. The Court of Appeal guided itself by this aspect of public policy, and any deviations from this principle are likely to arise only in exceptional circumstances.
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