The general rule is that legal advice is privileged and not disclosable in litigation. However, if the legal advice is given for the purpose of "affecting an iniquity", this will not be the case.
Curless v Shell International Limited
Mr Curless brought proceedings for disability discrimination whilst he was employed by Shell. He was subsequently made redundant and brought a second claim, alleging that his selection for redundancy was tainted by discrimination.
Following the redundancy, Mr Curless received a print-out of an email marked "Legally Privileged and Confidential" anonymously in the post. The email was an exchange between two senior lawyers working for Shell which did not name him but referred to "the individual," and suggested that the redundancy programme that Shell was undertaking was "the best opportunity" to terminate his employment. The advice as given on the basis that "there is at least a wider reorganisational process at play that we could put this dismissal into the context of…otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution".
Mr Curless argued that the email contained advice on how to cloak unlawful victimisation by using the redundancy programme as justification for dismissal and should therefore lose its privileged status.
The CA held that the email in question contained the sort of advice that lawyers give day in, day out in cases where an employer believes (rightly or wrongly) that an employee is underperforming. As such, the email did not contain advice to act in an iniquitous or underhand way. Therefore Mr Curless was not permitted to use the email in support of his case, as the email benefitted from the protection of legal advice privilege.
What Can You Learn from This Case?
The case serves as a reminder to ensure that correspondence which is legally privileged is clearly marked as such and stored securely.