February 10, 2020

Court of Appeal: legal advice privilege doesn’t attach to internal communications copied to lawyers

The Civil Aviation Authority v The Queen on the Application of Jet2.com: the Court of Appeal Upholds the High Court's Decision that Legal Advice Privilege does not attach to communications sent to both lawyers and non-lawyers.

On 28 January 2020 the Court of Appeal handed down its decision in The Civil Aviation Authority v The Queen on the Application of Jet2.com [2020] EWCA Civ 35. The Court upheld the High Court's decision that legal advice privilege (LAP) could only be claimed in relation to a communication or document that was brought into existence for the dominant purpose of obtaining legal advice.  

Background

Jet2 brought judicial review (JR) proceedings against the Civil Aviation Authority (CAA) challenging its decision to: (1) publish a press release in which the CAA was highly critical of Jet2 for refusing to engage in a new alternative dispute resolution (ADR) scheme proposed by the CAA; and (2) for subsequently disclosing to the Daily Mail inter partes correspondence between Jet2 and the CAA.

As part of the JR proceedings, Jet2 sought disclosure of various categories of documents. In particular, it sought disclosure of all drafts of the CAA's 1 February 2018 letter – which the CAA had disclosed to the Daily Mail and wherein it further criticised the CAA for the stance it had taken in relation to the ADR scheme – and all records of any discussions concerning those drafts. It was said that this was necessary in order to understand the CAA's reasons and purpose behind the publication of that letter and was therefore relevant when considering the JR.

In response, the CAA accepted that there were further drafts of the 1 February 2018 letter and that there were internal discussions about those drafts by several people within the CAA. However, it was said that as there was an in-house Legal Adviser at the CAA involved in the discussions who gave advice on the various drafts, the content of the drafts and communications were privileged.

Disclosure Application

The disclosure Application came before Morris J in December 2018. Relying on the Three Rivers (No 5) in the Court of Appeal, and Three Rivers (No 6) in the House of Lords, Morris J held that "…claims for legal advice privilege are, in principle, subject to a dominant purpose test, namely whether the communication or document was brought into existence with the dominant purpose of it or its contents being used to obtain legal advice." In handing down his Judgment, Morris J noted that this issue was "not free from doubt" given the obiter observations of the Court of Appeal in SFO v ENRC [2018] EWCA Civ 2006 where it was stated: "In our judgment, however, it is hard to see why the suggested additional qualification is necessary, when the privilege can, by definition, only be claimed when legal advice is being sought or given. It is one thing to say that litigation privilege can only be claimed where the communication is created for the dominant purpose of the litigation, but entirely another to say that legal advice privilege can only be claimed where the communication is created for the dominant purpose of seeking legal advice. The second is tautologous and academic commentary which cast doubt on the need for a dominant purpose test in relation to legal advice privilege."

Morris J did not feel constrained by those comments given the particular facts of that case and concluded that the current state of the authorities supported the view that claims for LAP are subject to a dominant purpose test.

In determining whether LAP applied to the relevant drafts and communications relating to the CAA's 1 February 2018 letter, Morris J acknowledged that the dominant purpose test would often not be relevant where, for example, the communication is between a client and an external lawyer. However, the dominant purpose is likely to become an issue where the communication or material was sent to an in-house lawyer, who often have a both a legal and non-legal role within the company.

In relation to these types of communications, Morris J's Judgment can be summarised as follows:

  1. If the dominant purpose of the communication is to seek legal advice from the lawyer and others are copied in for their information, the email is privileged;
  2. If the dominant purpose of the email is to seek commercial advice, and the lawyer is copied in, the communication is not privileged; and
  3. If the communication is sent to the non-lawyer for a commercial comment and subsequently sent to the lawyer for legal advice, the email to the non-lawyer is not protected by privilege, unless it discloses or might disclose (being a realistic possibility) the nature of the legal advice sought and given.

On this basis, Morris J (in a subsequent Judgment) concluded that all drafts of the 1 February 2018 letter, and emails and internal discussions about those drafts, were required to be disclosed.

Court of Appeal Decision

The CAA appealed Morris J's decision on the basis that, inter alia, he erred in holding that claims for LAP are in principle subject to the dominant purpose test and, in so doing, erred with respect to the proper approach to be adopted when considering whether multi-addressee communications are protected by LAP.

The Court of Appeal found that the preponderance of authority supported the inclusion of a dominant purpose criterion into LAP. The Court therefore found that Morris J was right 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.

With that finding the CAA accepted that it could not be said (i) the dominant purpose was to seek legal advice, or (ii) the email/attachment might realistically disclose the nature of the legal advice being sought from, or given by, the in-house lawyer. The CAA therefore effectively conceded that under the dominant purpose test the relevant communications and documents were disclosable.

In relation to the approach taken to multi-addressee emails, such as those which Jet2 sought disclosure of here, the Court agreed generally with Morris J's approach and stated that the purpose of the communication needs to be identified. The Court said that in this exercise the wide scope of "legal advice" and the concept of a "continuum of communications" must be taken fully into account. Accordingly, in this context most communications between a lawyer and a client were likely be privileged. However, if the dominant purpose is to obtain the commercial views of a non-lawyer addressee(s), then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).   

Observations

It remains to be seen whether the CAA appeal the Court of Appeal's Judgment, however, with this decision the current legal position is that LAP is subject to a dominant purpose test. While most communications between a lawyer and the client will be subject to LAP, the position is much less clear with communications between the client and its in-house lawyers. This is often relevant to NHS Trusts, which, when carrying out internal investigations following an incident, often copy their in-house lawyers into their communications with the expectation that those communications will be privileged. The Court of Appeal's Judgment makes it clear that unless the communication is for the dominant purpose of obtaining legal advice, it will not be privileged and such communications may therefore be disclosable in subsequent legal proceedings. Businesses, including insurers and NHS Trusts with which we deal regularly, therefore need to be aware of the limitations of LAP and not to assume that all communications with their in-house lawyers will be subject to LAP.