A recent decision from the Court of Appeal, Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35, gives some guidance on the complex doctrine of legal advice privilege (“LAP”).
By way of reminder, LAP is one type of privilege. If information is privileged, it is immune from disclosure. For example, where there are court proceedings, privileged information can be withheld from inspection during the disclosure process. LAP has been defined as “communications made in confidence between solicitors and their clients for the purposes of giving or obtaining legal advice even at a stage when litigation is not in contemplation”.
LAP is to be distinguished from litigation privilege which protects communications which came into existence for the dominant purpose of gathering evidence for where litigation is underway or reasonably in contemplation.
Background Facts
Jet2, one of the largest airlines in the UK brought judicial review proceedings against the Civil Aviation Authority (“the CAA”) after it disclosed correspondence between them to the Daily Mail which it said caused reputational damage.
Within these judicial review proceedings, Jet2 applied for disclosure of all the drafts of one particular letter which had been disclosed to the Daily Mail and any documents containing discussions of the drafts. The CAA said the drafts and discussions were covered by legal advice privilege since its in-house lawyers were involved in the discussions.
It was decided at first instance that most of the information was not privileged. The CAA then appealed to the Court of Appeal.
Key Principles of the Court of Appeal’s Decision
The decision sheds light on three key aspects of LAP which we will address in turn.
Dominant Purpose Test
As referred to above, litigation privilege is subject to a dominant purpose test. The Court of Appeal looked at whether, for LAP to apply, there is a similar test (whether the dominant purpose of the advice was to obtain or give legal advice).
Addressing the existing case law on this point which has been inconclusive, the Court of Appeal established that there is a dominant purpose test for LAP.
Multiple Addressees
Deciding on whether LAP applies becomes more complex where communications are sent to multiple addressees including lawyers and non-lawyers. Similarly, where meetings are attended by a combination of lawyers and non-lawyers, it can be difficult to establish whether LAP applies to any content which arises from these meetings, such as board minutes.
Prior to this case, there was no determination on this issue. The Court of Appeal established a number of guiding principles when deciding whether LAP applies. In particular the Court of Appeal stipulated that applying the dominant purpose test can help to establish the proper addressee. For example, if the dominant purpose of an email is to seek commercial advice from the non-lawyers, and a lawyer happens to be in copy, the email will not be covered by LAP. If an email is addressed to both lawyers and non-lawyers but the dominant purpose is to seek legal advice, then LAP will apply. However the Court also stated that its “preferred view” is that each communication to each recipient should be considered separately.
Email attachments
The CAA sought to argue that if an email was privileged, the attachments would also be privileged.
The Court of Appeal ruled that when deciding on the application of LAP, separate consideration should be given to each document, email and attachment.
Commentary
The decision underlines the complex factual and legal analysis that can be required when deciding whether documents are privileged – a question that can arise in civil proceedings, and when considering responses to subject access and freedom of information requests. In practice, the “dominant purpose” aspect of the decision is probably more of a clarification of the law on LAP than significantly narrowing its application. However, elements of the ruling as it applies to multiple addressees still leave some scope for differing interpretation. As ever, the tests for privilege will have to be applied carefully to the facts; this is not always a straightforward exercise, as shown by frequent appeal court rulings on privilege.
Eve Rodgers
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