Legal professional privilege may be waived by the courts where it is intended to cloak dishonesty or fraud; a concept known as the iniquity principle.
In the recent case of Curless v. Shell International, the Court of Appeal clarified this principle further, making a clear distinction between advice aimed at merely avoiding legal action which employment lawyers give 'day in, day out' and advice aimed at evading legal consequences in an underhand way.
An in-house lawyer cannot rely on a leaked email or overheard conversation in a pub to support his employment claim, the Court of Appeal has ruled. In Curless v Shell International Ltd, judges upheld an appeal by the oil giant which argued it was entitled to claim legal advice privilege on two paragraphs of a claim by its former senior legal counsel Michael Curless. The court said Shell was not acting unfairly and so the paragraphs did not meet the so-called ‘iniquity principle’, which would make them admissible.