Court of Appeal confirms dominant purpose test for legal advice privilege

Background

The underlying dispute concerned judicial review proceedings brought by Jet2.com Limited (Jet2) against the Civil Aviation Authority (the CAA). 

The CAA was a vigorous proponent of a new alternative dispute resolution (ADR) scheme for the air passenger industry. Jet2 refused to join the scheme. The CAA criticised Jet2 in a press release. Jet2 complained to the CAA about the press release and the CAA wrote a letter of response which contained further criticisms of Jet2. The letter was drafted by a non-lawyer, but in-house lawyers were involved in discussing and commenting on drafts. The CAA provided the above correspondence to the Daily Mail. 

Jet2 challenged the lawfulness of the CAA’s actions (issuing the press release and communicating with the Daily Mail) in judicial review proceedings.  Jet2 argued, among other things, that the CAA’s actions involved the exercise its powers for unauthorised and improper purposes, namely to punish Jet2 for its decision not to join the ADR scheme. 

A key issue concerned what the CAA’s real purpose was in issuing its press release.  Jet2 sought disclosure of all drafts of the CAA’s letter of response and all records of any discussion of those drafts. The CAA resisted disclosure on the basis that in-house lawyers had given advice in relation to the various drafts and were also involved in discussions about the drafts so the documents in question were protected by legal advice privilege.

The Issue

The issue for consideration was whether communications between lawyers and their clients had to be made for the dominant purpose of giving or receiving legal advice, or whether it was sufficient merely for that to be a purpose of the communication. While the “dominant purpose” test has been long-established in connection with litigation privilege, the case law was less clear on whether that test applied to legal advice privilege.

The issue arose because the CAA was in possession of emails that has been sent to multiple addressees. While some addressees were lawyers, others were not, and it could not be said that the dominant purpose of the multi-addressee emails was to give or receive legal advice. 

The judgment: dominant purpose test

The Court of Appeal found that the preponderance of case law supported the proposition that a person claiming legal advice privilege must show that the dominant purpose of the relevant communication was to give or receive legal advice. 

More broadly, the Court of Appeal favoured the inclusion of a dominant purpose test because:

a.  Litigation privilege and legal advice privilege are limbs of the same privilege, legal professional privilege. The Court of Appeal considered that there was no compelling rationale for differentiating between limbs of the privilege in this context.

b.  Generally the common law in other jurisdictions (such as Australia, Singapore and Hong Kong) has incorporated a dominant purpose test in both limbs of legal professional privilege. The Court of Appeal considered that this is a legal area in which there is advantage in the common law adopting similar principles.

Practical guidance: multi-addressee emails

The Court of Appeal also provided the following practical guidance on how to apply the “dominant purpose” test to multiple-addressee communications:

• In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for input, the purpose(s) of the communication needs to be identified.
• In this exercise, the wide scope of “legal advice” (including what should prudently and sensibly be done in the relevant legal context) and the concept of “continuum of communications” must be taken fully into account. The point here is that the dominant purpose test can be applied to a broad range of lawyer-client communications which count as “legal advice”.
• If the dominant purpose of a multi-party email is to obtain the commercial views of the non-lawyer addressees, then the communication will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).
• The response from the lawyer, if it contains legal advice, will almost certainly be privileged, even if it is copied to more than one addressee. When a lawyer sends an email to their client (even if copied to others) the court will be extremely reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was the provision of legal (rather than non-legal) advice.
• Even if a multi-addressee email was not sent for the dominant purpose of legal advice, it will nevertheless be treated as privileged where it might realistically disclose the content of legal advice.

Practical guidance: meetings

The Court of Appeal confirmed that the dominant purpose principle also applies to meetings (including records of meetings), attended by non-lawyers and lawyers, at which commercial matters are discussed.

• Legal advice requested and given at such a meeting would, of course, be privileged; but the mere presence of a lawyer is insufficient to render the whole meeting the subject of legal advice privilege so that none of its contents (including any notes, minutes or record of the meeting) are disclosable.
• If the dominant purpose of the meeting is to obtain legal advice, unless anything is said outside that legal context, the contents of the meeting will be privileged.    
• If the dominant purpose of the discussions is commercial or otherwise non-legal, then the meeting and its contents will not generally be privileged; although any legal advice sought or given within the meeting may be.
• It is likely that, where not inextricably intermingled, the non-privileged part will be severable (and, on disclosure, redactable).

Attachments to emails

The Court of Appeal also confirmed the well-established principle that a document which is not privileged does not become privileged simply because it is sent to a lawyer. Therefore, in giving disclosure, it is necessary to give separate consideration to emails and their attachments.

The judgment will, however, ensure that a wider range of material is available to the parties and the court through the process of disclosure.

Protecting legal advice privilege

To protect privilege in multi-addressee communications there are some practical points to keep in mind:

• It is not (and never was) possible to claim legal advice privilege simply by copying a lawyer on a group email chain. The mere involvement of a lawyer is not enough to justify a claim for legal advice privilege. It is necessary to apply the dominant purpose test in each case.
• It is prudent to mark relevant emails as being for the dominant purpose of legal advice. This is not determinative but is helpful, both as a reminder to recipients to keep the information confidential and as evidence of the sender’s intention.
• If in doubt about whether a multi-party “mixed purpose” email will be privileged, it is prudent to separate out the legal and commercial elements of the email and send them separately.

For further information on this topic, our client guide on legal professional privilege can be found here.