Court of Appeal confirms dominant purpose test applies to legal advice privilege

It is an established prerequisite to a claim for litigation privilege that a “dominant purpose” test must be satisfied. That is, the relevant communication must be for the dominant purpose of obtaining information or advice in connection with existing or contemplated litigation. However, up until now and as recently as the much-publicised decision of the Court of Appeal in SFO v ENRC [2018] EWCA Civ 2006, it was unclear whether a similar test applied to legal advice privilege (LAP).

The Court of Appeal has now removed that uncertainty. In Civil Aviation Authority v R Jet2.Com Ltd [2020] EWCA Civ 35, the court unanimously held that a claim for LAP does require that the relevant communication is created or sent for the dominant purpose of obtaining legal advice.

While this may cause concern of a narrowing of LAP, the judgment indicates that the scope of the protection afforded by the privilege should largely remain the same. The Court of Appeal noted that a broad approach is taken to the “continuum of communications” between a client and lawyer and that “legal advice” includes advice on the application of the law and the consideration of particular circumstances from a legal viewpoint.

The court has also provided guidance on the tricky question of emails sent to multiple addressees and the application (or not) of privilege to these. And, like it did in SFO v ENRC, the Court of Appeal expressed dissatisfaction with the prevailing narrow definition of “client” for the purpose of LAP. However, those awaiting resolution of this long-standing issue will have to remain patient since any change will require intervention by the Supreme Court.

Background

The Civil Aviation Authority (CAA) had criticised Jet 2.com in a press release published in April 2018. Before publication, the airline had complained about the press release and the Authority responded in writing in February 2018. In subsequent proceedings, the airline applied for specific disclosure of all drafts of the CAA’s February 2018 letter and all records of any discussions of those drafts.

At first instance, the court was required to determine whether, for a communication to fall within the scope of legal advice privilege, it had to have the dominant purpose of seeking or giving legal advice, and whether emails sent to multiple addressees, some of whom were lawyers and some of whom were not, had been brought into existence for that dominant purpose.

The court concluded that:

• The dominant purpose test applied.
• If the dominant purpose of a multi-addressee communication was to obtain legal advice from an in-house lawyer, then it would be privileged, even if it also sought the commercial views of others.
• However, if its dominant purpose was to seek commercial views, then it would not be privileged, even if it was contemporaneously sent to a lawyer for the purpose of giving legal advice.

The court held that versions of the email created by the CAA before consultation with its in-house lawyers were not privileged. At a further hearing, the court held that even if it had found the documents to be privileged, privilege had been waived by the CAA’s voluntary disclosure of one email.

The CAA appealed.

Decision

The Court of Appeal held that:

• While the authorities did not speak with “a single clear voice”, the court agreed that for LAP to apply, the dominant purpose of the communication had to be to obtain or give legal advice.
• Although having some different characteristics, litigation privilege and LAP were limbs of the same privilege.
• Multi-addressee communications: the court generally agreed with the first instance approach. The court held that (1) the purpose(s) of the communication need to be identified and (2) the wide scope of “legal advice” and the concept of “continuum of communications” must be taken fully into account. If the dominant purpose was to settle instructions to the lawyer, even if the lawyer was included by way of information, the communication or rolling series of communications would likely be covered by LAP (bearing in mind the narrow definition of “client”). If the dominant purpose was to obtain the commercial views of non-lawyer addressees, it would not be privileged, even if a subsidiary purpose was simultaneously to obtain legal advice from the lawyer addressee(s).
• The court also confirmed that the same approach should be taken to discussions at meetings attended by lawyers and non-lawyers at which commercial and legal matters are discussed.
• The court’s preferred view was that multi-addressee communications should be considered as separate communications between the sender and each recipient. Whether or not those were protected by privilege came back to: (1) the dominant purpose test; and (2) the realistic possibility the communications would disclose legal advice.

On the question of waiver, the point had become academic since privilege was not established in the documents. If the court had been required to determine the point, it would have held that the voluntary disclosure of one email had not waived privilege in the other documents.

Comment

The Court of Appeal’s confirmation of the existence of the dominant purpose test is useful clarification. This is particularly so in the case of multi-addressee communications, where it commonly is the case that in-house lawyers are included in email chains which cover both legal and commercial issues. The Court of Appeal has made it clear that simply sending such a communication to a lawyer for the purpose of giving legal advice will unlikely be sufficient if the dominant purpose is to seek commercial views. As the court held, consideration of LAP has to be undertaken on the basis of particular documents, not simply by the brief or role of the relevant lawyer. That said, where the brief or role is not by a lawyer, this is not necessarily fatal: a communication may still fall within the scope of LAP if it is specifically in a legal context.

The focus on particular documents extends as well to emails and their attachments. The court confirmed that, where what is in issue is the privileged status of an email with attachment(s), it is necessary to consider both separately. Even if an email is privileged, it does not necessarily follow that the attachment will be.

While the guidance is helpful, it is debatable whether it relieves, or in fact increases, the burden of parties tasked with reviewing multi-addressees communications. Parties would remain well advised to endeavour to keep legal and commercial communications separate wherever possible. The court observed that legal and non-legal contexts may become so intermingled as to make severance impossible and, while redaction may be possible, a party carries the risk that a court will find that the non-legal context predominates.