Does the “dominant purpose” of a communication have to be the giving or seeking of legal advice in order for it to be privileged?

Legal advice privilege is the right to withhold disclosure of documents or information. It operates so that a person may consult their lawyer in confidence and so what is said will never be revealed without their consent. The principle 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. It is said to be, “a fundamental condition on which the administration of justice as a whole rests.” We have recently reported on the consequences for an organisation that obtains legal advice from a non-lawyer.

The key question that faced the Court of Appeal in the case of Civil Aviation Authority v R (Jet2.com Limited) [2020] EWCA Civ 35 was, must the “dominant purpose” of the communication be for seeking or giving legal advice in order for it to be privileged?

Facts

In December 2017, the Civil Aviation Authority (“CAA”) issued a policy document and a press release. Amongst other things, the document criticised a particular policy of Jet2.com Limited (“Jet2”). On 16 January 2018, Jet2’s Executive Chairman wrote to the CAA to complain. Before a reply was received, on 18 January 2018, Jet2 issued its own press release. Following receipt of the 16 January 2018 letter and Jet2’s press release, the CAA considered its response.

In particular, in an internal email dated 18 January 2018, the CAA’s Chief Executive Officer wrote to the then Group Director of CAA’s Consumer and Markets Group, the CAA’s Communications Director and the CAA’s Senior Communications Adviser. The internal email discussed how they should respond. On 24 January 2018, a first draft of the response letter was circulated by the CAA’s Head of Consumer Enforcement Department. It was sent under a covering email addressed to the then Group Director of CAA’s Consumer and Markets Group, a CAA Consumer Enforcement Department Manager and a CAA Principal Legal Adviser. On 1 February 2018, the CAA’s Chief Executive Officer responded to Jet2’s Executive Chairman. The CAA also provided copies of the correspondence to the Daily Mail.

Subsequently, Jet2.com raised an action for judicial review, challenging the lawfulness of the Civil Aviation Authority’s (“CAA”) decisions to: (i) to issue a press release in December 2017; and (ii) to publish the correspondence between the CAA and Jet2 in February 2018, including providing the correspondence to a national newspaper.

Issues

This post will not address the merits of the ongoing case for judicial review. Instead, it will focus on Jet2’s application for specific disclosure of several categories of documents, including all drafts of the 1 February letter and all CAA records of any communications concerning those drafts. These were said to be necessary to understand one of the grounds of judicial review. However, the CAA asserted legal advice privilege, saying that a CAA Principal Legal Adviser was,

“involved in those discussions and gave advice in relation to the various drafts, the content of which advice is privileged and the CAA does not waive privilege in that advice”.

In 2018, Morris J held that the documents were not protected by legal advice privilege and should be disclosed – see judgment here. In 2019, Morris J also held that by voluntarily disclosing an email from January 2018, the CAA had waived privilege in all communication concerning the draft 1 February 2018 letter. Subsequently, the CAA appealed both judgments.

Issues

In the Civil Aviation Authority v R (Jet2.com Limited) [2020] EWCA Civ 35, the Court of Appeal said that the case raised important issues concerning legal advice privilege, notably:

“(i) whether, for a communication to fall within the scope of that privilege, it must have had the dominant purpose of seeking or giving legal advice;

(ii) and in the light of the answer to (i), the proper approach to determining the privileged status of email communications between multiple parties where one of the senders or recipients is a lawyer.

It also potentially raises issues concerning the proper approach to the collateral waiver of privilege in respect of documents otherwise non-disclosable, as the result of the voluntary disclosure of other privileged documents.”

Issue 1: Legal Advice Privilege and Purpose

There will be occasions where communications between a lawyer and their client will have more than one purpose. For example, it may provide a mix of legal and commercial advice. The question in such a case, therefore, is whether the “dominant purpose” must be for seeking or giving legal advice in order for privilege to attach? For a long time, the answer has been unclear: there have been conflicting opinions expressed by academic writers; and until Morris J held that it did, there had been no direct answer from the courts.

The Court of Appeal agreed with Morris J and in doing so distinguished a Court of Appeal case from 2018 that had suggested, but not definitively decided, that the opposite was the case (judgment here). The Court of Appeal said that the although the previous cases on this issue are,

“far from straightforward and…do not speak with a single, clear voice, [we consider] that for legal advice privilege 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.”

Accordingly, the court dismissed the appeal on the basis of this ground.

Issue 2: Legal Advice Privilege and Multi-Addressee Communications

As indicated in the facts section above, many of the communications in this case were sent to multiple people, not all of whom were lawyers. The court accepted that the lawyers were acting as lawyers and not giving commercial advice. The Court of Appeal provided guidance as to the appropriate approach where one party seeks disclosure of multi-addressee emails and the other asserts privilege:

  1. The dominant purpose test applies;
  2. Although the general role of the relevant lawyer may be a useful starting point (and may, in many cases, in practice be determinative), the test focuses on documents and other communications and has to be applied to each;
  3. In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified.
    1. In this exercise, the scope of “legal advice” is wide and it includes the giving of advice in a commercial context through a lawyer’s eyes.
    2. Once a legal context is established, legal advice privilege applies, not just to those communications which expressly seek or give legal advice, but also to the “continuum of communications” between a lawyer and client aimed at “keeping both informed so that advice may be sought and given as required”;
  4. If the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged.

The Court of Appeal said there was “some benefit” in considering whether if the email had been sent to the lawyer alone, it would be privileged:

“If no, then the question of whether any of the other emails are pivileged hardly arises. If yes, then the question arises at whether any of the emails to the non-lawyers are privileged, because (e.g.) its dominant purpose is to obtain instructions or disseminate legal advice.”

However, the Court doubted whether considering matters as one single continuous chain of communication or separate communications to each recipient matters if the correct approach to legal advice privilege is maintained:

“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.”

What about attachments to emails?

The court dealt with this question briefly, rejecting the CAA’s view, and determining that the attachment and email must be considered separately:

“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 Court of Appeal also rejected the CAA’s appeal on ground 2.

Issue 3: Waiver of Privilege

On the basis of the analysis of and decision on the first two grounds, the Court of Appeal said that this ground was “academic”. In brief, the court said that the purposes and nature of the voluntary disclosure were crucial and that Morris J had failed to properly take these into account:

“It cannot be right that such a modest voluntary disclosure could result in the collateral waiver (and thus the forced disclosure by the CAA) in respect of all the internal communications relating to the drafting of the 1 February 2018 letter, including those that expressly reveal legal advice from the CAA’s lawyers; nor is that what the law (or fairness) requires.”

Conclusion

Absent any appeal to the UK Supreme Court, this case has settled the question of whether communications, prior to a litigation, must be for the “dominant purpose” of seeking or giving legal advice for privilege to apply.

The Court of Appeal unanimously decided that legal advice privilege only applies where communications (oral and written) were made with the “dominant purpose” of seeking or providing legal advice. The Court provided guidance on when legal advice privilege will apply in cases of multi-addressee emails and said that in most cases, the “dominant purpose” test will resolve this issue.

If you wish to discuss this matter any further, do not hesitate to get in touch.

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