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Legal Advice Privilege: A Leaked Email and an Overheard Conversation in the Pub - What is Covered?

The Court of Appeal held in Curless v Shell International Limited that a leaked email was legally privileged and the advice in the email could not be tainted by a conversation heard in the pub after the event.

In this case, after bringing claims for discrimination the Claimant was made redundant following a redundancy programme. When bringing his claim the Claimant sought to rely upon an email that was marked “Legally Privileged and Confidential” sent by a senior lawyer to a lawyer assigned to the employer. The Claimant argued that it contained advice on how to cloak unlawful victimisation by using the redundancy process to dismiss him. The Claimant’s interpretation of this email was influenced by a conversation he overheard at the pub whereby he surmised that two professionals were lawyers acting for the employer and they were referring to him when referencing that his days were numbered as he could be managed out of the business.

The email in question stated that the redundancy process was the best opportunity for the employer to consider how it could apply the redundancy procedure across the board and to the Claimant. The email also highlighted the risk that the Claimant may claim discrimination if he was made redundant and if this was alleged the employer could put the redundancy in the context of a wider organisation process. As part of the advice, the email explained that doing nothing risked an impasse with no obvious resolution.

The Claimant argued that the email fell foul of the iniquity principle, namely that privilege should be lost where the document/communication came into being for the purpose of furthering a criminal or fraudulent design.

In determining that the email was legally privileged the Court of Appeal held that the email recorded advice on how the reorganisation could be done “with appropriate safeguards and in the right circumstances” whilst considering two alternative risks. The court held that this was the type of advice employment lawyers gave “day in, day out” in cases where an employer wishes to consider redundancy for an employee who is regarded to be underperforming.

The court was also not prepared to allow the contents of the conversation overheard at the pub to interpret the email. The overheard conversation occurred two weeks after the email was sent and there was no evidence that the participants in the conversation had seen the email.

This decision can be seen to be welcome news for employers as it reinforces the principle that protecting legal advice is not something that can be easily circumvented. As such, this will give confidence to employers that the communication between them and their lawyers won’t be revealed without their consent and that the exceptions to this principle will only be permitted in exceptional circumstances.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as, legal advice.

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