The recent Court of Appeal decision in Civil Aviation Authority v. R (on the application of Jet2.com Ltd)1 has clarified the test for legal advice privilege (LAP). The court held that, to come within the scope of the privilege, it is not enough for a document to have had the purpose of seeking or receiving legal advice, rather that purpose must also have been the "dominant" purpose. This helpfully settles the position on the authorities, which had been unclear and out of step with other common law jurisdictions. In practice, this will have implications for any communications with lawyers that are at the same time circulated more widely to non-lawyers. The decision sets out the correct approach to take in assessing whether such "multi-addressee" communications fall within the scope of LAP.
The privilege issues were decided in the context of judicial review proceedings brought by Jet2 against the CAA. In those proceedings, Jet2 challenged the lawfulness of the CAA's decision to issue a press release that was critical of Jet2. Jet2 sought disclosure of various documents, including drafts of the letter the CAA had sent in response to Jet2's initial complaint and all records of any discussions concerning those drafts. The CAA claimed the documents attracted LAP on the basis that its in-house lawyers had been involved in the discussions and had given advice on the drafts. Many of the relevant documents consisted of emails and attachments circulated to a number of individuals for their input, including CAA's in-house lawyers, whose legal advice was sought at the same time.
At first instance, having held that a claim to LAP was subject to a dominant purpose test, the judge concluded that most of the documents were liable to be disclosed as they had not been prepared for the dominant purpose of obtaining legal advice.
The CAA appealed.
Main issues on appeal
A party seeking to withhold documents from disclosure on the grounds that they are subject to LAP must satisfy the criteria of each of four elements: there must be (a) a communication (written or oral); (b) between a client and a lawyer; (c) made in confidence; and (d) for the purpose of giving or obtaining legal advice.
The focus of the appeal was whether the "purpose" in (d) must be the dominant purpose. In light of the answer to that, the court also addressed what was the proper approach to determining the privileged status of email communications between multiple parties where one of the senders/recipients is a lawyer.
Criticism of Three Rivers (No 5)
Before dealing with the main issues, the court considered a number of propositions relevant to the appeal arising from the authorities. One of these (Proposition 4) arose out of the Court of Appeal decision in Three Rivers (No 5).2
In Three Rivers (No 5), the court held that communications between an employee of a corporation and the corporation's lawyers did not attract LAP unless that employee had been tasked with seeking and receiving legal advice on behalf of the corporation. The effect of this, which has been the focus of considerable criticism, is that, in the context of a corporation, only those employees specifically tasked with seeking or receiving legal advice are to be treated as the "client", and therefore the scope of LAP protection is likely to be more limited.
The House of Lords in Three Rivers (No 6)3 declined to express its views on this issue, so that this aspect of the decision remains binding on the Court of Appeal. The court in the present case, like that in ENRC,4 expressed its doubts as to the analysis and conclusion of Three Rivers (No 5) on this issue. The particular difficulty lay in the failure in Three Rivers (No 5) to recognise that, in the modern world, many corporations are large and multi-national, and the information on which a corporation might seek legal advice is unlikely to be solely in the hands of those tasked with instructing its lawyers. The court noted that, had it been free to do so, it too would have been disinclined to follow the decision in Three Rivers (No 5) on this issue.
In any event, the court distinguished the facts of the present case from those in Three Rivers (No 5). CAA's lawyers were in-house lawyers, acting in their capacity as lawyers, rather than giving any commercial advice, whereas the lawyers in Three Rivers (No 5) were external lawyers, and the issue had been whether they were providing legal or commercial advice. The non-lawyers in the present case were relatively senior executives and fell within the scope of the "client". As a result, setting aside the question of whether the purpose had to be "dominant", the court found that LAP would attach to any confidential communication made for the purpose of giving or obtaining legal advice between a lawyer and non-lawyer in this case.
LAP and the dominant purpose test
Although, it is well established that the dominant purpose test applies to litigation privilege – so that the relevant communication must have come into existence for the dominant purpose of existing or contemplated litigation – the position on the authorities relating to LAP is unclear as to whether a dominant purpose test is a requirement. Each party in this case contended that "the preponderance of authority" was in their favour.
The Court of Appeal carried out a careful review of those authorities, including the decisions in the Three Rivers cases. Whilst accepting that the authorities "do not speak with a single, clear voice", it found that the balance of authority was in favour of the dominant purpose test applying to LAP, as it did to litigation privilege.5 The court did not accept CAA's argument that the application of the dominant purpose test to LAP was inconsistent with Three Rivers (No 6), which sets out the authoritative test for LAP without reference to dominant purpose. The court concluded that both the Court of Appeal in Three Rivers (No 5) and the House of Lords in Three Rivers (No 6) appeared to have accepted (if not actually held) that the dominant purpose test applied to LAP, and had done so without any adverse comment.
The only authority to suggest that the test did not apply was ENRC, but those observations were obiter and made without considering any of the authorities on the issue. Furthermore, in suggesting it was "tautologous" that the purpose had to be dominant, given that LAP can only be claimed when legal advice is being sought or given, the court in ENRC had not apparently considered the possibility of a document being created partly for the purpose of obtaining legal advice but also for some other purpose. ENRC had concerned external lawyers whose role was to provide legal advice, whereas the communications in this case were to in-house lawyers for legal advice, but at the same time seeking input from non-lawyers.
The CAA's other reasons for arguing that the dominant purpose test should not be included as an element of LAP were rejected. The court did not accept that such a test would undermine the purpose of the privilege since a balance had to be maintained between the right to withhold legal advice from disclosure and the importance of ensuring evidence was available to allow a fair trial. Otherwise, swathes of material could be excluded from disclosure simply because a lawyer had been copied in and asked for his advice as and when he thought it appropriate. The court was unsympathetic to the suggestion that inclusion of the dominant purpose test would make life difficult for those wanting to obtain legal and non-legal advice simultaneously. LAP was a privilege and those wishing to take advantage of it should be expected to take proper care when doing so.
Finally, on this issue, the court suggested there were good grounds for including the dominant purpose test for LAP. LAP and litigation privilege were limbs of the same privilege, and there was no compelling rationale to differentiate between them in terms of purpose. Furthermore, the common law in other jurisdictions, such as Australia, Singapore and Hong Kong, had incorporated a dominant purpose test for both limbs of the privilege.
Having found that the dominant purpose test applied to LAP, the court went on to consider the proper approach to be adopted when considering whether multi-addressee emails (from and to both lawyers and non-lawyers) are protected by LAP. The court generally agreed with the approach taken by the judge at first instance, and highlighted the following points:
The dominant purpose test focuses on documents: Although the general role of the relevant lawyer may be a useful starting point (and may, in practice, be determinative), the dominant purpose test focuses on documents and other communications, and must be applied to each of these.
The purpose(s) of a multi-addressee email (sent to individuals, including a lawyer, for input/advice) must be identified: In doing so, the wide scope of "legal advice" (including the giving of advice in a commercial context through the lawyer's eyes) and the concept of a "continuum of communications" must be fully taken into account:
- if the dominant purpose is to settle the instructions to the lawyer to obtain their advice then, subject to the principle in Three Rivers (No 5), it will be covered by LAP. That will be so even if it is sent to the lawyer by way of information or as part of a rolling series of communications with the dominant purpose of instructing the lawyer;
- if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice.
The lawyer's response: If this contains legal advice, it will almost certainly be privileged, even if copied to more than one addressee. Whilst the dominant purpose test applies, given the wide scope of "legal advice" and "continuum of communications", the court is unlikely to engage in an exercise to determine whether the dominant purpose was the provision of legal (rather than non-legal) advice.
A communication disclosing legal advice: A communication that might realistically disclose legal advice will be privileged.
The same principles apply to meetings/records of meetings: Legal advice requested and given at a meeting would be privileged, but the mere presence of a lawyer at a meeting is insufficient to bring the whole meeting within 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. If the dominant purpose of the discussions is commercial or otherwise non-legal, the meeting and its contents will not generally be privileged, although any legal advice sought or given within the meeting may be.
This decision has clarified that for a claim for LAP to succeed, the person claiming the privilege must show that the relevant document was for the dominant purpose of seeking or giving legal advice. This brings some consistency to the requirements for LAP and those for litigation privilege, as well as bringing the scope of LAP in this jurisdiction in line with the approach taken in other common law jurisdictions.
The court's guidance on assessing privilege for multi-addressee emails (or other communications) will be of particular interest to large entities and their in-house counsel. Although there may be circumstances where it will be possible to claim LAP for such communications, there are clear risks in combining requests within the same document for legal advice and input from non-lawyers. If practicable, the safer approach is to keep such communications separate, so that there is no doubt that the dominant purpose of the communication is obtaining/giving legal advice. Communications passing on, considering or applying such legal advice internally will remain privileged, as will any document that is likely to disclose the nature and content of the legal advice.
The same principles will apply to the records of meetings at which both legal and commercial matters are discussed. Unless it can be shown that the dominant purpose of the meeting was to seek or receive legal advice, the contents of the non-legal aspects of the meeting will not generally be privileged. At the very least, records of such meetings should ensure that legal advice is kept separate from any commercial discussions, so that it may be redacted on disclosure.
LAP in the context of a large corporation remains subject to the limitations on the scope of the "client" as set out in Three Rivers (No 5), and the criticisms expressed by the court in this case and in ENRC will remain unresolved until such time as the Supreme Court is asked to determine the issue.
1.  EWCA Civ 35.
2. Three Rivers Council v. The Governor and Company of the Bank of England (No 5)  EWCA Civ 474.
3. Three Rivers Council v. The Governor and Company of the Bank of England (No 6)  UKHL 48.
4. Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Limited  EWCA Civ 2006.
5. Waugh v. British Railways Board  AC 521.
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