An inalienable principle which comes part and parcel with the provision of legal advice is that any communications with one’s legal advisor should generally remain confidential. The UK case of Curless vs. Shell International Limited raised some interesting points regarding this well-established rule.
Mr Curless challenged his being made redundant, claiming it was actually an underhanded move to terminate his employment due to his shortcomings on the job since he suffered from a disability (he had also previously instituted a discrimination claim against his employer). As evidence, he presented an email (received anonymously) between an in-house lawyer at Shell International and another lawyer at an external law firm, where the latter was informed that redundancies (specifically including Mr Curless) were likely, and should be carried out with the utmost care in order to effectively combat any discrimination claims from him. He also submitted that he had later overheard two lawyers from the same law firm in a pub discussing an employee whose case sounded very much like his own, stating that he will most likely face the chop under the guise of a redundancy exercise.
The UK court held that there was nothing out of the ordinary about the email – it contained regular employment advice often meted out by professionals in the field. Moreover, the court found the content of this email to be privileged information which could not be disclosed and used as evidence in proceedings. It further held that the pub conversation (“gossip”) could not be held to substantiate or interpret it any further. On this point, one should note that hearsay evidence is also often disallowed in Maltese courts.
There are several valuable lessons to take home from this judgment. Whilst data protection law now provides your employees, as data subjects, with the right to request the provision of all data you possess which relates to them, certain data might still be excepted from this rule. Legal privilege may subsist no matter what, and you would therefore be under no legal obligation to disclose any data relating to any employee where such data derives from communications with your lawyer, as opposed to any such communications with other experts or consultants in the field. The court however noted the ‘iniquity’ principle, where the presentation of privileged evidence may be permitted if it is of a gravely dishonest or fraudulent nature.
On a final note, it is essential to consider that this principle covers any communication with legal advisers seeking purely legal advice. However, courts will often disallow this privilege when such advice is of a purely strategic or commercial nature.