Pubs, Privilege and Improper Purposes

Curless v Shell International Ltd [2019] EWCA Civ 171

Privilege is very much a buzzword at the moment in legal circles. A recent Court of Appeal case in England involving a conversation overheard in a pub and a leaked email has tested the boundaries of privilege, in particular the rather delightfully named iniquity principle.

Summary
Mr Curless was an in-house lawyer working for Shell. He had raised earlier claims of disability discrimination in August 2015 and had an ongoing employment tribunal claim and an internal grievance arising out of these allegations. Due to an acquisition in February 2016, Shell was looking to reorganise its legal department. Mr Curless was placed in a redundancy process in October 2016 and ultimately made redundant in January 2017.

This is where the pub comes in – in May 2016 Mr Curless was in a well-known legal haunt in London when he overheard a conversation between two lawyers discussing a senior lawyer at their client, Shell, whose “days are numbered”. It seemed the hapless senior lawyer’s claim in the tribunal was to be handled robustly and that a redundancy exercise would be used to end his employment. Mr Curless assumed they were referring to him.

In October 2016, around the time that he was placed in the redundancy process, Mr Curless was apparently sent by an anonymous source a copy of an email from an in-house lawyer at Shell stating “this is their best opportunity to consider carefully how such processes could be applies [sic] across the board to the UK legal population including the individual. If done with appropriate safeguards and in the right circumstances, while there is always the risk he would argue unfairness/discrimination, there is at least a wider reorganisation and process at play that we could put this into the context of. I felt in the circumstances this is definitely worth considering even if there is the inevitable degree of legal risk which we would try to mitigate. Otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution.

After he was made redundant in January 2017 Mr Curless, in reliance on the above facts, issued a claim for unfair redundancy and discrimination. Shell argued that both the conversation in the pub and the email were subject to legal professional privilege and could not be relied upon by Mr Curless.

 

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JERSEY
Daniel ReadSenior CounselT +44 (0) 1534 700 764daniel.read@walkersglobal.com