In Vino Veritas

Pub chat with solicitor is legally privileged

As you may recall, and as previously reported, in the case of Shell International Limited v Curless individuals employed by the Respondent were overheard discussing a potential redundancy situation in a pub.

These discussions were around an email sent by the solicitor to their client (the Respondent) concerning a potential redundancy situation and risks in relation to pursing a redundancy route for dismissal, some of which related to discrimination.

Usually all legal advice is privileged and cannot be disclosed in evidence unless there is evidence of iniquity.

In the EAT it was held that the email advised the employer how to discriminate against Curless surmounting “the high bar of iniquity” and therefore was not legally privileged. The Respondent appealed against this decision on the basis that the EAT had misinterpreted the email and had applied the wrong test for iniquity.

The Court of Appeal (COA) found that the email had been misinterpreted and was not unusual or discriminatory advice. It considered that the advice had been undermined by gossip in the pub (as a result of which the Claimant discovered the existence of the email). As a result the Respondent was successful in their argument and the email was held to be legally privileged by the COA.

This case is helpful in reiterating the high bar for iniquity and also highlights the importance of legal advice privilege. It is crucial that emails and other communications between a client and their legal team (even if this is in-house) clearly state that they are legally privileged and ideally are not disclosed or discussed in public forum or openly within the business.

If they are, there is an argument to be had over whether or not they privileged. Cases of true iniquity, whereby there is wrongdoing or illegal activity, will be rare and, as in this case, standard concerns and legal advice should not ordinarily fall within this category.

Protected philosophical beliefs

There are a number of cases that have recently been considered that relate to this ever-evolving area of law.

As stated in the Equality Act 2010 (EqA) discrimination on the grounds of a protected characteristic including religion or belief is unlawful. In order to be protected as a philosophical belief under the EqA the following criteria need to be met:

the belief must be genuinely held and not be mere opinion or viewpoint the belief must be important and relate to a substantial...