Introduction

Curless v. Shell International Ltd ([2019] EWCA Civ 1710) is a pivotal case adjudicated by the England and Wales Court of Appeal (Civil Division) on October 22, 2019. The central issue revolved around the application of Legal Advice Privilege (LAP) and the iniquity exception in the context of disability discrimination and victimization claims brought by Michael Curless against his former employer, Shell International Ltd.

Michael Curless, a Senior Legal Counsel at Shell from January 1990 until his dismissal in January 2017, alleged unlawful disability discrimination and failure to make reasonable adjustments related to his health conditions, Type 2 Diabetes and Obstructive Sleep Apnoea (OSA). The case delves into intricate aspects of legal privilege, the boundaries of iniquity exceptions, and the principles governing open justice.

Summary of the Judgment

The Employment Tribunal (ET) initially ordered the striking out of specific paragraphs in Curless's disability discrimination and victimization claims, asserting that they referenced privileged communications. Shell appealed this decision, leading to the Employment Appeal Tribunal (EAT) setting aside the ET's decision. Shell then escalated the matter to the Court of Appeal.

The Court of Appeal primarily addressed Shell's arguments regarding the improper interpretation of privileged emails and an overheard conversation, as well as the applicability of the iniquity exception to LAP. Ultimately, the Court upheld the EAT's decision, dismissing Shell's appeal and reinforcing the protections afforded by LAP unless a strong prima facie case of iniquity is established.

Analysis

Precedents Cited

The judgment extensively referenced prior case law to elucidate the boundaries of LAP and the iniquity exception. Key cases included:

• Barclays Bank plc v Eustice [1995] 1 WLR 1238: Clarified the parameters of LAP and the conditions under which the iniquity exception might apply.
• Three Rivers District Council v Bank of England (No 6) [2004] UKHL 28: Explored the scope of legal privilege in the context of legal advice.
• BBGP Managing General Partner Ltd v Babcock & Brown Global Partners [2010] EWHC 2176 (Ch): Discussed the threshold for applying the iniquity exception.
• Eustice [1995] UKHL 15: Influential in defining the limits of LAP when public policy is at stake.
• Derby Magistrates' Court ex parte B [1996] 1 AC 487: Reinforced the importance of confidentiality in legal communications.

Legal Reasoning

The Court of Appeal meticulously examined whether the communications in question fell within LAP and whether the iniquity exception was applicable:

• Interpretation of LAP: The email dated April 29, 2016, was scrutinized to determine if it constituted legal advice. The ET and Court of Appeal concluded it did, as it represented standard legal counsel on handling redundancy without evidence of iniquous intent.
• Iniquity Exception: Shell contended that the advice was intended to perpetrate deception against Curless and the tribunal, thereby invoking the iniquity exception. However, the Court required a strong prima facie case of iniquity, which was not established given the lack of evidence for dishonest intent.
• Overheard Conversation: The overheard conversation in the pub was deemed protected by LAP as well, with no substantial evidence indicating it breached confidentiality or was part of an iniquous plan.
• Open Justice Principle: Shell's attempt to obtain an anonymity order was rejected based on the principle of open justice, emphasizing that the desire to exclude certain communications does not outweigh the public’s right to a transparent judicial process.

Impact

This judgment reinforces the robustness of Legal Advice Privilege, emphasizing that LAP remains intact unless there is compelling evidence of iniquity. For legal practitioners, this case serves as a critical reminder to maintain the sanctity of privileged communications unless there is clear misconduct. Additionally, the case underscores the judiciary's commitment to the open justice principle, limiting the scope for anonymity orders in appellate courts.

Complex Concepts Simplified

Legal Advice Privilege (LAP)

LAP protects confidential communications between lawyers and their clients, ensuring that legal advice is freely given and received without fear of disclosure. It facilitates honest and open dialogue necessary for effective legal representation.

Iniquity Exception

The iniquity exception to LAP allows courts to override privilege in cases involving serious wrongdoing, such as fraud or crime. However, this exception requires a high threshold of evidence demonstrating that the communication was intended to further illicit activities.

Prima Facie Case

A "prima facie" case refers to a situation where the evidence presented is sufficient to prove a case unless disproven. In the context of the iniquity exception, Shell needed to establish a strong prima facie case showing that the privileged communications were intended for dishonest purposes.

Open Justice Principle

This principle asserts that justice should not only be done but should also be seen to be done. It underpins the transparency of judicial proceedings, ensuring public confidence in the legal system by making hearings generally open to the public.

Conclusion

The Curless v. Shell International Ltd case stands as a significant affirmation of Legal Advice Privilege within the English legal system. By upholding the ET's and EAT's determinations against Shell's broad claims of iniquity, the Court of Appeal underscored the high threshold required to bypass LAP. This decision not only fortifies the protections afforded to privileged legal communications but also reaffirms the judiciary's dedication to the principles of open justice. Legal practitioners and parties in litigation must heed the stringent requirements for invoking exceptions to privilege, ensuring that privileged communications are shielded unless incontrovertible evidence of wrongdoing is presented.