Court of Appeal adopts dominant purpose test for legal advice privilege

Court of Appeal adopts dominant purpose test for legal advice privilege

Copying in your lawyer or having them at a meeting, does not necessarily mean that legal advice privilege will apply. Adam Heppinstall, barrister at Henderson Chambers considers the Court of Appeal decision in The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of) [2020] EWCA Civ 35.

Background to the decision

Jet 2, the airline, refused to participate in an ADR scheme for consumers set up by the Civil Aviation Authority (CAA). So the CAA released the fact of their refusal and correspondence between them to evidence their refusal, to the press, in particular, to the Daily Mail. Jet 2, judicially reviewed the decision to issue the press release, as being for the improper purpose of damaging its interests and of forcing it to join the ADR scheme. Before issuing, the two parties corresponded, as they might, and Jet 2 sought disclosure of copies of all drafts and discussions leading up to a pre-action letter written to it by the CAA on 1 February 2018. An internal email as to what might be the content of that letter from the CAA, ended with the line "Attack dogs please"; i.e. intimating that the CAA was to go on the attack in relation to Jet 2. One can understand why Jet 2 pursued its disclosure application. 

A draft of the letter was circulated internally by email within the CAA, crucially copying in the Principal Legal Advisor at the CAA. To keep up the "humour" the covering email said: "I wouldn't quite call it 'attack dog' style. More of a cranky alpaca." Should Jet 2 have disclosure of drafts of the 1 February letter into which the in-house legal advisor was copied? 

What did the court decide?

In what must surely be another line in his job application for Justice of the Supreme Court, Hickinbottom LJ has sought to wrestle with the complex issue of Legal Advice Privilege (LAP) in order to come up with an answer. He set out a series of proposition from paragraph 44 onwards of in his judgment:

1.LAP applies to communications with in-house lawyers.

2. LAP does not just cover the immediate communications with such a lawyer, but any communications passing on or discussing that advice, even if with third parties.

3. LAP only applies to communication for the purpose of obtaining or giving legal advice, not other professional or commercial advice.

4.Whilst Three Rivers No 5 in the C of A [2003] QB 1556 was considered by Hickinbottom LJ and the C of A in Eurasian [2018] EWCA Civ 2006 to be wrong in its conclusion that only those employees of a company tasked with instructing external lawyers can correspond with those lawyers on an LAP basis, here the lawyer was internal, not external, and therefore this C of A could depart from Three Rivers No 5 in saying that all of the internal employees were entitled to correspond with the in house lawyer on a LAP basis, so long as the context in which the internal lawyer was operating (and she was) was one of providing legal, as opposed to commercial advice.

5. The dominant purpose test does not apply to the issue of whether the allegedly privileged document arose in the context of the lawyer providing legal as opposed to commercial advice. The starting point is that it is presumed that most of the communications with a lawyer will be subject to LAP. The Court will not parse between communications merely because some commercial advice is intermingled with some legal advice. It will only be where it is clear that there is a severable communication which falls outside of "legal advice", that LAP will not apply. The Court will keep in mind the wide range of matters which can now constitute legal advice (including giving commercial advice through "legal eyes"), and also how the "continuum of communications" can be long lasting and wide ranging, particularly on email.

THEN HICKINBOTTOM LJ came to the big one - DOMINANT PURPOSE:

We all know that communications with a third party are only privileged if they are for the dominant purpose of litigation (Litigation Privilege) (Waugh v BRB [1980 AC 521). But what about LAP? The Australians have decided that the Dominant Purpose rule applies to both forms of privilege (AWB Limited v Cole [2006] FCA 571). In fact Hickinbottom LJ traced Waugh back to Australian jurisprudence too. He also noted that Singapore and Hong Kong have followed the same line. Even though, as was submitted to him by Counsel, there is lots of hints in the authorities, that English Courts are "hostile" to the idea that LAP has a dominant purpose test, that is where he ends up:

Although they do have some different characteristics, litigation privilege and LAP are limbs of the same privilege, legal professional privilege. It is uncontroversial that the dominant purpose test, grown out of Grant v Downs, applies to litigation privilege. For the reasons I have given, I am unpersuaded that Eurasian is correct to consider the limbs as fundamentally different with regard to purpose. In my view, there is no compelling rationale for differentiating between limbs of the privilege in this context. The "dominant purpose" test in litigation privilege fixed by Waugh derives from Australian jurisprudence, which has since Grant v Downs treated the purpose test (whatever it might be) as applying to both limbs of the privilege.

For those reasons, whilst I readily accept that the jurisprudence is far from straightforward and the authorities do not speak with a single, clear voice, I consider Morris J was correct to proceed on the basis that, for LAP to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice.

So what do you do when someone sends an email to many addressees, including copying in a lawyer - well the dominant purpose test is there to tell you the answer:

Where there is a multi-addressee email seeking both legal advice and non-legal (e.g. commercial) advice or input, if regarded as separate communications, those to and from the lawyer will be privileged: otherwise, they will not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers is that of instructing the lawyer. If it is not for that purpose, in most cases, the email as a whole will clearly not have the dominant purpose of obtaining legal advice.

Same applies to meetings at which a lawyer is present:

Legal advice requested and given at such a meeting would, of course, be privileged; but the mere presence of a lawyer, perhaps only on the off-chance that his or her legal input might be required, is insufficient to render the whole meeting the subject of LAP 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 (or, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), to settle instructions to a lawyer), 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)

Can you differentiate between covering email and attachment - YES apparently:

In giving disclosure, some separate consideration of substantive documents and attachments therefore has to be undertaken. Whilst an email and attachment can be regarded as a single communication, separate consideration will need to be given to the attachment, given that it will have been received or created by the sender, and therefore may require discrete consideration.

THE RESULT? The cranky alpaca draft sent to many people internally but merely cc'ing the lawyer, was not privileged, because the dominant purpose of the email and its attachment was not the seeking of legal advice.....perhaps if the draft had been sent with the line added - "and internal legal advisor, please provide your comments from your legal perspective", that might have made a difference, although it is likely that in that event, on the C of A's analysis, only the communications between the sender and the lawyer would have been privileged and not all of the exchanges with the whole of the staff, unless they were contributing to the legal advice process. To create the necessary dominant purpose, perhaps the way forward to is to put the lawyer in the TO line of the email and the rest of the copyees in the CC line and to draft the covering email so as to ensure that the dominant purpose of the communication is the giving and receiving of legal advice...

Peter Jackson and Patten LJJ agreed. Will this go to the Supreme Court and what will they think?

Republished with the kind permission of Adam Heppinstall, barrister at Henderson Chambers.


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