Curless v Shell International Ltd

The central issue on this appeal is whether the Employment Tribunal (Judge Tsamados) (“the ET”) was correct to order on a preliminary hearing that two paragraphs of the disability discrimination and victimisation claim of the respondent, Michael Curless, should be struck out on the ground that they referred to respectively an email and a conversation in respect of which Shell is entitled to claim legal advice privilege (LAP).

This appeal by Shell is from the order of the Employment Appeal Tribunal (Mrs Justice Slade) (“the EAT”) dated 9 August 2018 allowing Mr Curless’ appeal from the decision of the ET and setting aside that decision.

The following account is largely based on the findings of the ET.

Mr Curless was employed as a Senior Legal Counsel by Shell from 29 or 30 January 1990 until his dismissal allegedly for redundancy with effect from 31 January 2017.

He suffers from Type 2 Diabetes and Obstructive Sleep Apnoea (“OSA”). He uses Constant Positive Airway Pressure (“CPAP”) equipment to help alleviate the effects of his OSA. This is breathing equipment consisting of a mask worn at night, through which humidified air is pumped, so as to prevent the user’s throat tissues closing during sleep. Mr Curless has always struggled to use the equipment and, in particular, the face masks.

There were ongoing concerns by Shell as to Mr Curless’ performance at work from 2011 with regard to his ability to meet deadlines and general standard of work. He was given low Individual Performance Ratings, his applications for vacant litigation roles were rejected and he was required to provide written reports as to work carried out. Mr Curless says that these matters gave rise to unlawful disability discrimination and/or failure to make reasonable adjustments.

Mr Curless submitted a claim to the ET on 14 August 2015 (“the First Claim”). He also raised an internal grievance on 2 January 2016. Both raised complaints of disability discrimination. The grievance was subsequently dismissed in June 2016.

Shell acquired BG Group plc (“BG Group”) on 15 February 2016. There followed a group-wide redundancy programme.

From April 2016 onwards Shell offered Selective Voluntary Severance (“SVS”) to certain targeted groups of employees, which allowed those employees to apply for voluntary severance from 7 June 2016. Mr Curless applied for certain roles but was unsuccessful and was then placed in a redundancy consultation process. His employment was terminated with three months’ notice allegedly by reason of redundancy on 1 November 2016, his employment ending on 31 January 2017.

Mr Curless commenced a second ET claim on 3 March 2017 (“the Second Claim”) alleging further disability discrimination, victimisation and unfair dismissal. In broad

In the “Details of Claim”, which accompanied the claim form in the Second Claim, Mr Curless said in paragraph 8 that Shell purported to dismiss him on the ground that he was redundant but he denied that redundancy was the genuine reason or principal reason for his dismissal. He alleged in paragraph 9 that he was dismissed because of (1) his disability, (2) matters arising in consequence of his disability, and/or (3) his protected acts. Paragraphs 10 and 11 of the Details of Claim were as follows:

In or around late May of 2016, the Claimant was in The Old Bank of England, a bar on Chancery Lane in London. He overheard a conversation between two people, who he believes to have been lawyers from Lewis Silkin. They mentioned a senior lawyer at the Respondent who had commenced a disability discrimination claim in the Employment Tribunal. The Claimant believes that they were referring to him. They said that this individual’s “days are numbered”, because his managers had said that his Employment Tribunal claim was to be handled firmly, and because the Respondent planned to use the context of a redundancy exercise to terminate his employment purportedly by reason of redundancy.

In October 2016, the Claimant learnt that, in April 2016, Ms

Mr Curless became aware of the matters in paragraph 10(ii) of the Details of Claim as a result of seeing an email dated 29 April 2016 between other Shell lawyers. That email was sent to him by an anonymous sender in October 2016. The email was from a lawyer, Ms Alex Ward (Managing Counsel, UK Employment and Benefits). At the time, she retained high-level responsibility for giving legal advice in relation to Mr Curless. The recipient was Angela Gill of Lewis Silkin LLP, who effectively had been seconded to Shell. Ms Gill had conduct of Shell’s defence in the First Claim. The email recorded Ms Ward’s conversation of 29 April 2016 with David Brinley (General Counsel for the Projects and Technology Business). Mr Brinley was Mr Curless’ indirect line manager because he line-managed Pamela Nelson, Mr Curless’ immediate line manager.

The email was headed “Legally Privileged and Confidential” and said as follows:

It is not in dispute that the “individual” mentioned in the second paragraph of the email was Mr Curless.

Shell applied by letter dated 23 March 2017 to strike out paragraphs 10(ii) and 11 of the Details of Claim on the ground that they referred to correspondence that was protected by LAP. The application was subsequently extended to cover paragraph

In its Grounds of Defence in the Second Claim dated 7 April 2017 Shell denied all the allegations in the Second Claim as to detrimental and less favourable treatment, discrimination arising from Mr Curless’ disability, unfair dismissal, discrimination and victimisation, and asserted that Mr Curless was dismissed because his role was redundant. As regards paragraphs 10 and 11 of the Details of Claim, Shell denied that the conversation alleged in paragraph 10(i) took place as alleged and/or that Mr Curless overheard the conversation. Shell asserted that, to the extent that Mr Curless did overhear a conversation in the terms alleged, such conversation was protected by legal privilege. Shell also asserted that paragraph 10(ii) referred to the contents of confidential and legally privileged correspondence.

A preliminary hearing to determine whether paragraphs 10 and 11 should be struck out on the ground that they referred to matters in respect of which Shell was entitled to assert LAP was fixed for 7 July 2017.

At the preliminary hearing Shell submitted that the email of 29 April 2016 and the conversation (if it took place) gave rise to LAP. The issue was whether they were nevertheless admissible because of the so-called “iniquity principle”, that is to say that there is no confidence in an iniquity. On that issue the ET referred to: Phipson on Evidence (18^th Ed.); Barclays Bank pic v Eustice [1995] 1 WLR 1238; McE v

The ET accepted Shell’s interpretation of the email, which, so far as relevant, was that it was a standard piece of advice from lawyers when dealing with redundancy. The ET said the following (at [84]) on this point:

On the question of iniquity the ET said (at [49]) that the types of iniquity which may be covered by the iniquity principle include crime and fraud and that, in this context, fraud has a broad meaning. The ET accepted Shell’s submission that, for the iniquity exception to apply, there must be a strong prima facie case of iniquity and that such a case was not made out in respect of the email. The ET said (at [84]) as follows:

So far as concerns the conversation alleged in paragraph 10(i) of the Details of Claim in the Second Claim, the ET accepted on a balance of probabilities Mr Curless’ evidence of overhearing a conversation in the Old Bank of England pub on Fleet Street on about 19 May 2016. So far as relevant, the ET summarised that evidence as follows:

Around 6 pm a group of professionally dressed people came into the pub and walked past [Mr Curless] and sat at the table behind him. There were three or four males and two females in their 30s or 40s with brownish hair. One of the men was carrying a Lewis Silkin notepad inside a plastic sleeve. The group sat at a table the other side of the pillar about a metre or so away from where he was sitting. Whilst he could hear their conversation, he did not pay any attention to what they were saying until one of the women mentioned dealing with a complaint by a senior lawyer at Shell. It was at this point that he started to listen to what she was saying.

The woman referred to a “he” who had brought a complaint of disability discrimination that had taken up a lot of Shell’s time, had been ongoing for a long time and that Shell wanted his tribunal complaint to be handled firmly or sternly. She said that however his days were numbered as there was now a good

The Claimant felt uncomfortable and conspicuous because he believed what he had overheard was clearly about him. He decided to leave. The traffic outside was still busy and so he decided to walk to Marylebone Station and left.”

The ET held that the conversation was also protected by LAP. The ET said (at [86]:

On the proper interpretation of the email of 29 April 2016 Slade J, in the EAT, did not agree with the view of the ET. She said (at [29]) that the interpretation of the email was a matter of law but that where, as was the case with the ET, external facts were relied upon to interpret the document, the ET’s finding deserved particular respect. She nevertheless held (at [33]) that the second paragraph of the email recorded

On the scope of the iniquity exception to LAP, in addition to some of the cases examined by the ET, Slade J referred to Ventouris v Mountain [1991] 1 WLR 607 and Gamlen Chemical Ltd v Rochem Ltd (No 2)[1979] 124 SJ 276.

Slade J did not agree with the view of the ET that it goes too far to elevate the tort of discrimination “to the status required to disapply legal advice privilege”. She said (at [58]) that such a view may be appropriate in many cases but the facts of some discrimination may take advice on how to commit it into the category of advice which is contrary to public policy.

Slade J held (at [59] and [60]) that it is for a party seeking to rely on material in respect of which LAP is claimed to establish a strong prima facie case of iniquity. She concluded that the advice recorded in the email satisfies that test for the following reasons:

So far as concerns the status of the overheard conversation in the pub, Slade J simply said:

For those reasons the EAT allowed Mr Curless’ appeal from the ET.

Shell appeals from the decision of the EAT on the grounds that Slade J was wrong (1) in her interpretation of the email of 29 April 2016, (2) in concluding that the overheard conversation in the pub was not covered by legal professional privilege, and (3) in holding that the crime/fraud exception to legal professional privilege is applicable to the circumstances of the present case, whether or not her interpretation of the email was correct; and, in particular, she failed (i) to apply the correct test of dishonesty and/or (ii) to require the correct standard of a “very strong” prima facie case.

Mr Curless served a respondent’s notice advancing the following additional grounds for upholding the decision of the EAT: properly interpreted in the context of the pub conversation and as a question of law, the email disclosed not only advice on how to “cloak” as redundancy the real reasons for dismissing Mr Curless but also advice on how to victimise and discriminate against him (by dismissing him for protected acts and because of matters from his disability); the reference in the email to “proceedings” included the First Claim; the pub conversation was not privileged because it recorded or evidenced advice from a lawyer given for the purpose of effecting iniquity; the threshold for application of the iniquity principle was passed because the conduct met the threshold identified by Norris J in the BBGP case, the deception described in the EAT’s decision at [59] was dishonest, and, insofar as a “very” strong prima facie case of iniquity is required, this is such a case.

The hearing before the ET was a closed hearing. The ET’s judgment was not, however, the subject of any anonymity or reporting restriction order.

By an order dated 1 August 2018, in which Mr Curless was shown in the title as “X” and Shell was shown as “Y Limited”, Slade J made the following order on the application of Shell for an anonymity order and a restricting reporting order:

No application was made direct to the Court of Appeal for any similar order. Shortly before the hearing of the appeal, Shell’s solicitors wrote to the Court of Appeal proposing that, “pursuant to the spirit and intention of the order of [Slade J]”, in oral submission the parties be referred to as “X” and “Y limited” or “Y” and that the individuals identified in her order be referred to as “Lawyer 1”, “Lawyer 2” and the “Line Manager” respectively. Shell’s solicitors said that Mr Curless’ “representative” had confirmed that there was no objection to that approach.

On the morning of the hearing of the appeal, we pointed out to Mr Bankim Thanki, QC, for Shell, that Slade J’s order was not binding on this court and so, if Shell wanted an anonymity order in respect of the appeal, it would have to make the application to us. Mr Thanki duly made an oral application, the basis of which was that, if the appeal succeeded, it would be important that confidentiality in respect of the relevant emails should be maintained and the judge conducting the future substantive hearing in the ET should not have any knowledge of those emails.

We dismissed the application and said that we would give our reasons when delivering judgment.

The principles applicable generally to applications for a hearing to be in private or for an order for anonymity or for reporting restrictions are now well settled, as is the position specifically in the Court of Appeal. They are to be found in, among other places: Pink Floyd Music Ltd v EMI Records Ltd[2010] EWCA Civ 1429, [2011] 1 WLR 770 (addressing the procedure in the Court of Appeal); Practice Guidance:

It is not necessary for us to set out in detail once again the same matters in this judgment. It is sufficient to repeat the following. An order for a hearing in private, for anonymity or for reporting restrictions for an appeal in the Court of Appeal must be made by the Court of Appeal. A judge of a lower court cannot bind the Court of Appeal in that respect.

The starting point for any consideration of an application for any such order is CPR 39.2(1), which provides that the general rule is a hearing is to be in public. A number of discretionary exceptions to the general rule are set out in CPR 39.2(3). In addition to those expressly mentioned there, and any statutory restrictions, it may be necessary in some cases to carry out a balancing exercise where there are competing rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) such as between, on the one hand, an individual’s right to private and family life under Article 8, and, on the other hand, the right to a fair and public hearing under Article 6 and the right to freedom of expression under Article 10. Such a situation is contemplated by CPR 39.2(4).

Although none of those Convention rights has automatic priority over the other or others, and always depending on the precise facts and circumstances, due to the importance of the principle of open justice it will usually only be in an exceptional case, established on clear and cogent grounds, that derogation from the principle of open justice (including the freedom to publish court proceedings) will be justified; and, in such a case, the derogation must be no more than strictly necessary to achieve its purpose. There is no general exception to open justice where privacy or confidentiality are in issue.

No question arises in the present case of any Convention right competing with the principle of open justice. The concern of Shell was that, even if it won the appeal, and so the relevant emails were excluded as evidence on which Mr Curless could rely at the future hearing on the substantive merits of his claim, the mind of the judge hearing the substantive dispute in the ET might be tainted by knowledge of the emails through learning about the hearing and the determination of this appeal. We consider that this is a plainly inadequate ground for qualifying the operation of the principle of open justice. Judges are well used to having to exclude from their consideration of the merits and their reasoning evidence which is strictly inadmissible. This is standard practice as judges often have to decide on the admissibility of evidence before or during a trial. Indeed, this is graphically illustrated by the fact that, although we were referred to several cases on the scope and application of legal professional privilege, we were not shown a single transcript or report in which the parties were anonymised.

We were not told anything to suggest that the relevant principles and appropriate considerations for derogations from the open justice principle are any different in the ET or the EAT. The position in the ET is governed by various provisions of the Employment Tribunals Act 1996, including in particular sections 10-12, and the ET Rules in Schedule 1 to the Employment Tribunals (Constitution and Rules of

On the day before the hearing of the appeal Mr Curless, invoking the Court of Appeal’s discretion under CPR 52.21(2)(b), applied to have various emails admitted in evidence that were not before the ET or the EAT.

In his witness statement in support of the application Mr Curless stated that the emails were sent to him anonymously in an envelope bearing a post stamp dated 19 September 2019 and, due to his absence, he only opened the envelope on 29 September 2019. It appears from the handwriting on the envelope and the covering letter that they were sent to Mr Curless by the same person who anonymously sent the email of 29 April 2016.

There are four emails. Three were sent in late December 2014 and one was sent in early January 2015. Two were sent by Eleanor Silvero, who was an HR manager, to

The emails relate to Mr Curless’ work performance. Mr Halliday relies on the emails as showing that, even in 2014, there was concern about Mr Curless’ perceived underperformance at work and a focus on the possibility of persuading him or negotiating with him to leave and of the possibility of utilising a group re-organisation to procure him to leave his employment. On the face of it, the emails were not only confidential and sent to Mr Curless in breach of confidence but they formed part of a chain of emails subject to legal professional privilege, bearing in mind the manifest expectation that Alex Ward would review them and give advice on their content if she thought that necessary or appropriate.

We refuse the application to admit this fresh evidence. Admitting the new evidence would not further the Overriding Objective but would undermine it. The emails do not simply fall short of the requirement in Ladd v Marshall[1954] 1 WLR 1489 that they would probably have an important influence on the result of the appeal. The reality is that they are manifestly incapable of having any bearing on the meaning of the email of 29 April 2016, which is at the heart of the appeal. They were written some 16 months before that email and over a year before Shell’s acquisition of BG Group on 15.2.2016, which gave rise to the group-wide redundancy programme leading to Mr Curless being made redundant. Moreover, apart from Alex Ward, the parties to the emails were entirely different.

We agree with Slade J that the proper meaning of the email of 29 April 2016 is a matter of law. Although it follows that no special deference is due to the ET’s interpretation, we agree with the ET’s interpretation and, with respect, disagree with that of Slade J.

There seems to be no dispute that, following the acquisition of BG Group by Shell on 15 February 2016, there was to be a significant reorganisation of the group’s legal department involving the loss of some jobs. Shell was seeking legal advice on whether, and if so how, Mr Curless might be either offered voluntary severance or dismissed on the grounds of redundancy in the course of that reorganisation, these being the two “processes” mentioned.

Legal advice was being given on how such processes could be applied to Mr Curless “with appropriate safeguards and in the right circumstances”: the email leaves open what such safeguards or circumstances might be, but there is nothing in the email to suggest that if further elucidation was sought and given, it would have consisted of anything other than entirely conventional advice. The writer was considering two alternative risks. If the processes led to Mr Curless being selected for redundancy, there was a risk that he would argue that the dismissal was unfair and discriminatory. On the other hand, if Mr Curless was not considered for redundancy and remained in employment, the First Claim would continue anyway and there was a risk of an impasse.

We agree with the ET that this was the sort of advice which employment lawyers give “day in, day out” in cases where an employer wishes to consider for redundancy an employee who (rightly or wrongly) is regarded by the employer as underperforming. We do not agree that this was advice to act in an underhand or iniquitous way.

Mr Patrick Halliday, for Mr Curless, also relied on some earlier internal emails of Shell as showing a long-standing desire to find a pretext for dismissing Mr Curless, and submitted that the disputed email should be interpreted in the light of those earlier communications. They were all sent in February 2014, two years before the acquisition of BG Group and the consequential group restructuring. They do no more than focus on Mr Curless’ medical condition, including the possibility of his agreeing to medical release and the possibility of his role being removed in a restructure. They are far too remote in time and context to colour the otherwise innocuous wording of the email of 29 April 2016 with an iniquitous meaning or objective.

Accordingly, the email of 29 April 2016 remains privileged and cannot be relied on by Mr Curless in support of his case.

In view of our conclusion on the meaning of the disputed email of 29 April 2016 the scope of the crime/fraud exception to LAP does not arise for decision. It was common ground between counsel that, if the email has the meaning ascribed to it by the ET, the iniquity exception has no application, and, if it has the meaning and purpose ascribed to it by Slade J, it was part of a dishonest plan. We, therefore, simply record as follows the bare bones of the argument that Mr Thanki wished to advance.

In its origins the exception applied where a client consulted a lawyer in furtherance of crime or fraud: R v Cox and Railton(1884) 14 QBD 153. The exception does not retrospectively remove legal professional privilege. Rather, it prevents the privilege from arising in the first place. The public policy underlying legal professional privilege is that when a client consults a lawyer the client must be confident that what passes between them will never be revealed without the client’s consent. The need for certainty at the time of consultation was underlined by the House of Lords in R v Derby Magistrates’ Court ex parte B[1996] 1 AC 487, and in subsequent cases. In so far as there are competing public policies the balance was struck in favour of legal professional privilege in the 16^th century and has been maintained ever since.

Argument in Derby Magistrates concluded on 22 June 1995, and the speeches of the appellate committee were delivered on 19 October 1995. Between the conclusion of the argument and the delivery of the speeches, this court decided Eustice. Judgment in Eustice was delivered on 6 July 1995. Lord Lloyd mentioned Eustice in Derby Magistrates but only to say that it came too late for consideration. None of the other Law Lords referred to it.

Eustice concerned an application under section 423 of the Insolvency Act 1986 to set aside transactions said to have been at an undervalue for the purpose of putting assets beyond the reach of creditors. The claimant bank sought disclosure of the legal advice leading up to those transactions. Schiemann LJ rejected the submission that the exception to legal professional privilege was confined to cases of dishonesty. He said at 1250H that the most important consideration was to decide “whether public policy requires that the documents in question are left uninspected.” Having referred to authority he continued at 1252C:

He went on to say that these cases “throw up difficult problems of public policy” and concluded that “the balance of advantage” was in permitting inspection.

Mr Thanki’s argument is that this approach cannot stand with the decision of the House of Lords in Derby Magistrates. Whether or not legal professional privilege attaches to a communication must be clear at the time when the communication is made. It cannot depend on a retrospective evaluative judgment by the court whether the purpose of seeking advice is “sufficiently iniquitous” to prevent privilege from attaching to the communication. The iniquity exception is confined to dishonesty. In so far as there are competing public policies, the balance has been struck in favour of legal professional privilege. For those reasons Eustice cannot be considered to be good law. Although as a general proposition this court would be bound by an earlier decision of the same court, there is an exception where this court considers that an earlier decision cannot stand with a subsequent decision of the House of Lords, even though it has not been expressly overruled: Young v Bristol Aeroplane Co[1944] KB 718, 725-6. Accordingly, Norris J went too far in BBGP, which was relied upon by

It is an important argument, which will no doubt have to be decided one day; but not in this case.