In the latest of a flurry of recent cases dealing with legal professional privilege, the Court of Appeal has clarified that there is a ‘dominant purpose’ test that must be applied to establish legal advice privilege (“LAP”). Elaina Bailes and Punam Shah of our Commercial Litigation department highlight the key points and practical implications of the recent judgment in Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35.

LAP protects communications between lawyers and clients created for the purposes of giving or receiving legal advice from being disclosed before a court. Authorities were previously non-committal on whether a dominant purpose test (ie whether the dominant purpose of the communication was for giving or receiving legal advice) needed to be applied to establish LAP. Previously, in order for LAP to apply legal advice only had to be amongst the purposes of the communication and not the dominant purpose. For instance, an email that mostly sought commercial advice and briefly sought legal advice, or a chain of emails that showed legal advice eventually being sought, are examples of communications that could have been protected by LAP.

The Jet2 case rejects judicial remarks regarding the application of the test for LAP in the Court of Appeal judgment of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB). Such is the importance of the clarification of this issue that the Law Society was given permission to intervene and filed written submissions in relation to the test applied to LAP.

Factual background

The Civil Aviation Authority (CAA), the UK’s aviation industry regulator, was dissatisfied with Jet2, a UK airline operator, for not opting into a compensation scheme. Consequently, the CAA issued a press release criticising the airline. This resulted in Jet2 writing a letter to the CAA. In response to this, the CAA exchanged internal emails regarding its reply and a draft letter was circulated as an attachment to an email to both in-house lawyers and non-lawyers for comment. Eventually, the final versions of the exchanged letters were leaked to the Daily Mail.

Proceedings and judgment

Jet2 brought judicial review proceedings against the CAA, challenging the publishing of the leaked documents. Jet2 made an application for specific disclosure, including all drafts of the CAA’s response letter and any records or discussions of those drafts.

The CAA wanted to claim LAP over all drafts of its letter to Jet2 and the internal emails sent to multiple addressees.

At first instance, the court held that:

1. The dominant purpose test applies to LAP. There must be (a) a communication (whether written or oral), that is (b) between a client and a lawyer, or a lawyer and his client, (c) made in confidence, and (d) for the dominant purpose of giving or obtaining legal advice.
2. In-house lawyers, who provide both legal and commercial advice, are ultimately treated as lawyers. If the dominant purpose of the communication to/from them is to seek/give legal advice, the communication will be covered by LAP.

The Court of Appeal agreed with the court at first instance on these points and provided further guidance on the principles applying to communications with multiple addresses, where not all addressees are lawyers.

Multiple addressee emails
The Court of Appeal held that the context in which the email was drafted will be key. It is not necessary for legal advice to be specifically requested in the email.

• If the dominant purpose of an email from a non-lawyer is to settle instructions to the lawyer, this will be privileged. This includes communications that are sent to lawyers by way of information.
• If the dominant purpose of an email from a non-lawyer is to obtain commercial views, this will not be privileged. This communication will still not be protected by LAP even if legal advice is sought later on in an email chain. However, the concept of giving and receiving legal advice is to be construed broadly (including the giving of advice in a commercial context through a lawyer’s eyes).

The Court of Appeal confirmed that emails with multiple addressees should be considered as separate communications to each addressee, rather than as one communication. The test is whether the communication would be privileged had it been sent to the lawyer alone:

• If no – the other emails are unlikely to be privileged.
• If yes – the emails to non-lawyers could be privileged, if the dominant purpose was to obtain legal advice.

Emails and attachments should be considered on their own merit. The attachment in question will not be privileged merely because it is sent to a lawyer as part of a request for legal advice, unless the request is the dominant purpose.

Similar principles apply to meetings, where there are multiple legal and non-legal attendees. If the dominant purpose of the meeting is to obtain legal advice, the contents will be privileged. However, if the dominant purpose of the meeting is commercial then only the parts of proceedings where legal advice is discussed will be privileged.

Practical implications for lawyers and clients

Confirms protection for in-house lawyer/client relationships
This judgment is welcome, as it tackles this issue head on by confirming the test to be applied. For disclosure reviewers trawling through thousands of examples of such documents, this is helpful guidance on how to assess whether emails with in-house lawyers attract LAP.

Brings the UK in line with some foreign jurisdictions
Applying the dominant purpose test to legal advice privilege brings the UK in line with other jurisdictions (eg Hong Kong, Singapore and Australia). In particular, the court noted how in Commonwealth countries there is no indication that applying the dominant purpose test to LAP is problematic. This provides certainty for businesses operating globally that communications will be treated in a similar fashion as other common law jurisdictions (though in the US there is no dominant purpose test and in many civil jurisdictions privilege does not apply to in-house lawyers). This is important to consider for international clients and lawyers who are operating in one jurisdiction but litigating in another.

Steps to mitigate risk

Lawyers might be tempted to advise non-lawyers to indicate in their communications that the dominant purpose of the email is to seek legal advice in order to cloak the continuum of communications in privilege. However, since it is not necessary for legal advice to be requested in the communication, this is unlikely to assist the sender in keeping communications protected by LAP. The better solution would be to separate communications with lawyers and non-lawyers where possible.

Corporates can take comfort in the fact that the court confirmed two principles that keep the scope of LAP narrow even when applying the dominant purpose test. First, that LAP can apply to a communication to a lawyer even if there is not a specific request by the sender for legal advice – if the lawyer considers that the material requires legal advice to be given in response then this may be sufficient. Second, that in considering whether a document may disclose legal advice, it must be considered in its full context of the continuum of communications.

Room for further clarification and practically difficult to apply

Though the guidance is welcome, practical difficulties remain. Those reviewing documents may struggle to decide whether documents should be disclosed or withheld on the basis of privilege.

There is some tension between the Court of Appeal’s acceptance that the full context of the communication should be considered and the finding that communications with multiple addressees should be considered individually. Nevertheless, a consistent approach will be necessary.

In reality, the test will be difficult to apply where one dominant purpose does not stand out. A lawyer’s response will almost always be protected by privilege, providing the dominant purpose of the communication was legal advice. However, where the sender does not explicitly ask for legal advice, it may be difficult to pinpoint where in the continuum of communications that a lawyer’s response is explicitly legal advice. The lawyer’s response may be phrased in such a way that on the face of the particular email it is not obvious their advice could be coming from a legal angle. Though the court confirmed such situations may still be covered by LAP, the task of a disclosure reviewer will remain difficult.

To be continued

It is likely that the problem of applying legal advice privilege to a large chunk of disclosed documents will remain. In the real world, most business people do not consider the ‘dominant purpose’ of an email before they fire it off. We can expect to see more case law in this area in the near future.

This article was written by our Senior Paralegal Punam Shah