Advice sought or given for the purpose of “effecting iniquity” is not privileged. This well-established exception to the rule of privilege, known as the iniquity principle, was considered by the Court of Appeal in Curless v Shell International Limited. The court’s decision (which remains to be issued in full) appears to confirm that the threshold for waiving lawyer-client privilege is high and should be subject only to the most limited exceptions.
Mr Curless’ employment was terminated for redundancy in January 2017. He issued a claim in March 2017 for discrimination, victimisation and unfair dismissal, alleging that the redundancy was a sham and that he was dismissed because he had issued two earlier claims against Shell.
Mr Curless relied on a copy of an email sent between two in-house lawyers marked "Legally Privileged and Confidential”. The email, which has not been made public, is said to have discussed a genuine restructuring exercise in the context of dismissing Mr Curless, concluding that "there is at least a wider reorganisation and process at play that [Shell] could put this into the context of".
The Employment Appeal Tribunal concluded that the email had advised using a genuine redundancy situation as a cloak to dismiss Mr Curless in order to avoid his continuing complaints. It found that Shell’s lawyers had advised the company to commit the tort of discrimination, an act which the EAT felt was sufficiently serious to count as a relevant “iniquity” for the purpose of waiving privilege. If that was correct, Mr Curless could make use of a document which would otherwise not be put before the court.
However, the Court of Appeal appears to have given this decision short shrift. Although the full judgment is awaited, the Court of Appeal appears to have been persuaded by Shell’s argument that, even if the EAT’s interpretation of the email is correct, the court must be satisfied that it was sent in furtherance of a fraud in order for the iniquity principle to be engaged. Since neither the ET nor the EAT had made such a finding, this very high threshold could not be satisfied. This is good news for in-house counsel in particular, who may have been concerned that providing confidential commercial legal advice to their clients would be made more difficult by the decision of the EAT.
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