Charities with in-house lawyers beware: legal advice privilege – new “dominant purpose” test

On 28 January the Court of Appeal has, in the case of The Civil Aviation Authority v R (on the application of Jet2.com Limited) [2020] EWCA Civ 35, clarified a previously unclear point of law regarding legal advice privilege (Hickinbottom LJ accepted “that the jurisprudence is far from straightforward”).

The court concluded that for a document to obtain the benefit of legal advice privilege, it must be prepared for the “dominant purpose” of obtaining or giving legal advice.

Previously, we were used to the “dominant purpose” test when looking at litigation privilege and deciding whether a document was prepared for the dominant purpose of that litigation. This was not the case, however, in respect of normal, non-litigious legal advice.

This decision has particular difficulties for lawyers working in-house in charities and other organisations, whose roles more readily display (in comparison with lawyers in private practice) both the dispensing of legal advice as well as business/administrative work.

It also presents particular problems where single communications are sent both to lawyers for the purpose of seeking legal advice as well as to other employees of an organisation, or indeed to the lawyer for other purposes.

Where communications are sent for multiple purposes, to multiple addressees, then unless the legally privileged parts and the other parts can be easily disentangled, one now faces a real risk that the document as a whole will fail the new “dominant purpose” test, and will lose the benefit of legal advice privilege. This means that it may have to be disclosed in future litigation or in response to a regulatory inquiry or similar.

Therefore, points for in-house lawyers to try to observe in practice, which have always been important, but are even more crucial now include the following:

• Avoid any communications by email or text discussing potentially sensitive matters.
• Avoid sending multi-purpose emails raising both commercial and legal points, copied to both non-lawyers and lawyers.
• Where legal advice needs to be circulated within the organisation, send hard copies rather than emails, ensuring that both the advice and the covering letter are marked “Privileged and confidential”.
• Advise employees to limit the circulation of potentially sensitive information and to avoid commenting upon legal advice where possible.
• If preserving privilege is important, a lawyer should be present at internal meetings to participate and take a note where a record of the discussion is required.
• Try not to mix up privileged and non-privileged material in the same document. If you need to do so, keep references to legal advice in a separate section so it can easily be redacted.
• Ideally, only authorised employees, in-house and external lawyers should create documents concerning the investigation of a matter that could lead to litigation.