Significant Judgment on Legal Advice Privilege Delivered by Court of Appeal in Civil Aviation Authority v R (on the application of Jet2.com Ltd) [2020] EWCA Civ 35

In Civil Aviation Authority v R (on the application of Jet2.com Ltd) [2020] EWCA Civ 35, the Court of Appeal examined the scope of legal advice privilege “LAP”. The judgment, published on 28 January 2020, provides important clarification on the application of LAP and is essential reading for companies relying on the advice of in-house legal teams.

Legal advice privilege, as opposed to litigation privilege, as defined in Three Rivers Council v The Governor and Company of the Bank of England (No 6) [2004] UKHL 48, at [50] “…attaches to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at a stage when litigation is not in contemplation”.

The central issue tackled by the Court of Appeal in this case was whether the “purpose” referred to must be the dominant purpose, where a communication has more than one purpose. The Court also gave helpful guidance on the status of emails sent to multiple employees of a company, including its legal team.

Judicial Review Proceedings

Jet2 brought judicial review proceedings against the Civil Aviation Authority (“CAA”) in relation to the CAA’s publication of a letter and a press release critical of Jet2’s non-participation in a new consumer complaint scheme.

Jet2 argued the CAA did not have the power to make the publications and that it did so for an improper purpose. Jet2 applied for disclosure of drafts of the letter and records of all relevant discussions regarding the same.

The CAA asserted relevant emails and drafts of the letter were protected by LAP because they were circulated to in-house legal advisers as well as company executives and discussed advice in relation to the drafts.

In the judicial review proceedings, Mr. Justice Morris concluded that claims to LAP are subject to the dominant purpose test. He ruled that drafts of the letter should be disclosed, unless specifically drafted by the lawyers or for the dominant purpose of obtaining legal advice, but communications with lawyers that included advice on the letter (or emails between executives which might disclose that advice) were covered by legal advice privilege.

Dominant Purpose

On appeal, the CAA challenged a number of aspects of the ruling, including the finding that LAP is subject to the dominant purpose test. The Court of Appeal conducted a thorough review of the authorities examining the function of dominant purpose in LAP and found, despite obiter remarks to the contrary in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006, that the weight of the authorities supported the inclusion of the dominant purpose test [71-94].

Further, the Court found the application of the dominant purpose test justified because it created welcome parity between the two limbs of privilege, in that the purpose test applies to litigation privilege and should apply to LAP. The inclusion of the dominant purpose test would also be in line with well-established case law in Australia, Singapore and Hong Kong, and it could be inferred that the principle has been workable in those jurisdictions [95].

The Court concluded that Morris J was correct in finding that “the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice.” [96]. The documents sought by Jet2 did not attract LAP, despite being circulated to in house-lawyers, because the dominant purpose was not to give legal advice.

In coming to its decision, the Court expressed disapproval of the principle established in Three Rivers Council v The Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474: that where the relevant client is a corporation, documents between an employee of that corporation and a co-employee or the corporation’s lawyers, even if required or designed to equip those lawyers to give legal advice to the corporation, do not attract LAP unless the employee was tasked with seeking and receiving such advice on behalf of the company.

Similar criticism was expressed in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006. However, the Court acknowledged that it is bound by the ruling in Three Rivers (No 5) and the application of the dominant purpose test must therefore be viewed in that context. These comments may however provide further encouragement for the restrictive definition of “client” in Three Rivers (No 5) to be re-examined.

Multi-Addressee Communications

In respect of emails sent to a number of employees, including in-house lawyers, the court found that the dominant purpose test should provide the starting point and the following principals apply [at 100]:

1. If the dominant purpose of an email is to seek advice or give instructions to the lawyer, including giving advice in a commercial context through a ‘lawyer’s eyes’ then LAP will apply even if the email is sent for information only but is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer participants in the email, it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer.
2. 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.
3. Multi-addressee communications should be considered as separate communications between the sender and each recipient.
4. A good approach is to consider whether, if the email were sent to the lawyer alone, it would have been privileged. If no, the question of whether the other emails are privileged hardly arises. If yes, the question arises as to whether any emails to the non-lawyers are privileged because their dominant purpose is to obtain instructions or disseminate legal advice.
5. If the correct approach to LAP is maintained, the outcome should be the same whether considering individual or multiple-addressee emails because a multi-addressee email seeking both legal advice and commercial advice will be privileged with the lawyer, and will be privileged with the non-lawyers only if the dominant purpose is that of instructing the lawyer.
6. Where a communication might realistically disclose legal advice then that communication will in any event be privileged.
7. Documents (emails) and attachments should be considered separately [107].

The Court considered the same principles would apply to meetings. Legal advice requested and given at a meeting will be privileged; but the mere presence of a lawyer at a meeting is insufficient to render the whole meeting the subject of LAP.

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 (subject to the employee exception in Three Rivers (No 5) as above). If the dominant purpose of the discussions is non-legal, the meeting and its contents will not generally be privileged; although any legal advice sought or given within the meeting may be. Where not inextricably intermingled, the non-privileged part will be severable and redactable [100 (viii)].

Comment

When companies seek the services of external legal advisors LAP will clearly apply because discussions will necessarily revolve around the law. The position with in-house legal teams is more complex because senior advisors in particular are likely to be included in commercial as well as legal issues on a relatively frequent basis, and to be involved in discussions that are a mixture of the two. This case will make it harder for companies to assert LAP over mixed commercial/legal emails and meetings involving its in-house legal advisors.

Companies should be alert to the fact that the mere inclusion of a member of its in-house legal team in a multi-addressee email will not render the contents of the email privileged. Even the discussion of some legal matters in multi-party discussions will not trigger the protection of LAP where those legal discussions are secondary to commercial matters. It may therefore be prudent for companies to entirely separate legal and commercial discussions in emails and meetings, both in terms of participants and subject matter, to ensure clarity about the application of LAP and avoid complex and costly proceedings in which the parameters of LAP are litigated.

Laura Stephenson