Legal advice privilege: dominant purpose

Court of Appeal (Civil Aviation Authority v R Jet2. Com Ltd [2020] EWCA Civ 35)

The question

When do documents or emails have the benefit of legal advice privilege?

The key takeaway

In order to attract legal advice privilege, it must be demonstrated that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice. 

The background

In April 2018, the Civil Aviation Authority (the CAA) published a press release in which it criticised Jet2.com for rejecting the opportunity to participate in its new ADR scheme for handling passenger complaints. Jet2.com wrote to the CAA, complaining of the fact that it had been named in the press release and setting out its reasons for not joining the scheme. In February 2018, the CAA responded by way of a letter (the February Letter), which was subsequently published by the Daily Mail. 
Jet2.com commenced judicial review proceedings against the CAA. 

During the proceedings, the CAA disclosed an initial draft of the February Letter alongside a covering email, which demonstrated that there had been several drafts of the February Letter in circulation between various employees at the CAA, including an in-house lawyer. Jet2.com made an application for specific disclosure of all drafts of the February Letter. The CAA claimed legal advice privilege.

The decision

The Court of Appeal held that a claim for legal advice privilege requires the party claiming privilege to show that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice. 

The Court of Appeal also considered whether single, multi-addressee emails would be covered by legal advice privilege, where they were sent simultaneously to various individuals for their advice or comments, including a lawyer for the lawyer’s input. 

Taking into account the concept of a “continuum of communication”, the Court held that, if the dominant purpose of the document or communication is to settle the instructions to the lawyer, then that communication will be covered by legal advice privilege. That will be the case even if the communication is sent to the lawyer himself or herself, by way of information or if it 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 addressees, it will not be privileged, even if there is a simultaneous subsidiary purpose to obtain legal advice from the lawyer addressee(s).

Why is this important?

The Court of Appeal has provided important guidance on the application of legal advice privilege, confirming that, for a communication or document to attract privilege, its dominant purpose must be the giving or obtaining of legal advice. The guidance on the circumstances in which an email addressed to multiple individuals would satisfy the test for privilege is also helpful.

Any practical tips

Clients should ensure that only those employees specifically tasked with giving or obtaining legal advice should communicate with the legal team.

Privileged communications should not be circulated internally without the approval of the legal team. Discussion of advice will not qualify as privileged where the purpose was to obtain commercial views, even if a lawyer is copied into the email. 

Where possible, clients should keep communications with the legal team and the business teams separate, as this will help avoid ambiguity as to the (dominant) purpose of the communication.