Legal Advice Privilege, Dominant Purpose and Multi-addressee Emails: Don’t Wing It!

Emily Gillett and Simon Collier

On 28 January 2020, the English Court of Appeal handed down its decision in Civil Aviation Authority v R (Jet2.com Limited) [2020] EWCA Civ 35. It is the first time that the English Court of Appeal has authoritatively decided that for a communication to be protected by legal advice privilege (“LAP”) it must have been created for the dominant purpose of giving or seeking legal advice.  The decision also considers LAP over multi-addressee emails sent to in-house lawyers and others.  English law has now been brought more into line with other common law jurisdictions including Australia, Hong Kong and Singapore, although the narrow definition of client set out in Three Rivers (No 5) still remains binding on English courts.   

Background

In judicial review proceedings against the Civil Aviation Authority (“CAA”), Jet2 sought disclosure of drafts of a letter which had been adduced in evidence by the CAA and records of any discussions concerning those drafts. The CAA resisted disclosure claiming LAP.  The CAA submitted that in-house legal advisers had given advice in relation to the drafts and that they were involved in the multi-addressee internal discussions of those drafts.

At first instance, it was held that the relevant documents were not privileged as the dominant purpose of the documents was not to seek or receive legal advice.  The CAA appealed and the Court of Appeal was accordingly required to determine two important issues:

  1. Whether, for communications to fall within the scope of LAP, they must have had the dominant purpose of seeking or giving legal advice; and
  2. In light of the answer to (1), the proper approach to determining the privileged status of email communications to multiple parties where one of the senders or recipients is a lawyer.

Dominant purpose for LAP

The Court of Appeal held that, to attract LAP, a document needs to be created for the dominant purpose of seeking or giving legal advice.  In a detailed judgment given by Hickinbottom LJ (with which the other members of the Court agreed), the Court explained that the recent observations of the Court of Appeal in SFO v ENRC [2018] EWCA Civ 2006 to the contrary were obiter and should not be followed. Rather, the preponderance of English authority supported a dominant purpose test and there was no compelling rationale for distinguishing LAP from litigation privilege (for which it is well established that a dominant purpose is necessary).   The Court stressed that legal professional privilege was an important but not absolute principle, stating at [93(i)]:

The common law is not bound to acknowledge the right to withhold evidence that would otherwise be disclosable simply because the relevant material has, as simply one, minor purpose, the obtaining of legal advice, without consideration of the weight of purpose.  It is entitled to balance the public interest in these respective principles … otherwise … swathes of internal and external material could be excluded from disclosure simply because a lawyer has been copied in and asked for his legal advice as and when he considered it appropriate to give it.

Moreover, the Court noted that a dominant purpose test had already been adopted in Australia, Singapore and Hong Kong for both LAP and litigation privilege without difficulty.

Multi-addressee communications

Given its finding in favour of the dominant purpose test, the Court was required to consider when LAP might attach to multi-addressee communications.  The Court gave the following guidance:

  1. When applying the dominant purpose test, one must focus on the documents in issue and not purely on the role of the relevant lawyer.
  2. When assessing the purpose of each document, the wide scope of “legal advice” and the concept of “continuum of communications” must be taken fully into account.
  3. If the dominant purpose of the multi-addressee communication is to seek legal advice from an in-house lawyer, it is privileged, even if the communication also seeks the commercial views of others.
  4. If the dominant purpose is to settle instructions to the lawyer, the communication is privileged. That will be so even if it is only sent to the lawyer by way of information or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer.
  5. However, if the dominant purpose is to seek commercial views of various non-lawyers, the communication will not be privileged, even if it is also sent to a lawyer by way of information or for the subsidiary purpose of seeking or giving legal advice. However, the communication could be privileged in these circumstances if the request for commercial views or the subsequent response by a non-lawyer might realistically or would disclose the legal advice sought or given.
  6. As LAP attaches to communications, it is preferable to analyse a multi-addressee email as a series of separate communications between the sender and each recipient. Such an approach highlights that the mere fact that an email has been sent simultaneously to a mixture of lawyer and non-lawyer recipients is not determinative of whether the communications to the non-lawyer recipients should be privileged. The Court endorsed the approach advocated in Documentary Evidence by Charles Hollander QC (13th ed):
    • Consider whether, if the email were sent to the lawyer alone, it would be privileged.
    • If not, then copies of the same email to non-lawyer recipients are unlikely to be privileged.
    • However, if the email to the lawyer would be privileged, then the dominant purpose of the email to the non-lawyers needs to be considered by asking: was the dominant purpose of the email to obtain instructions or disseminate legal advice?

Three Rivers (No 5) [2003] QB 1556 – who is the client?

It is worth noting that the Court of Appeal also cast further doubt over the controversial Three Rivers (No 5) decision which held that employees not specifically authorised to instruct solicitors are not clients and should be equated with third parties.  Therefore, under English law, documents or communications circulated by such employees do not attract LAP.

The Court in CAA v R (Jet2) emphasized that in larger organisations it was likely that the employees tasked with instructing lawyers would need input from other junior employees, and that those internal communications should also be privileged.  However, the Three Rivers (No 5) approach does not allow for this.  Australia and Hong Kong have already departed from Three Rivers (No 5): see the Australian decisions of Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 and AWB Limited v Cole [2006] FCA 571; and the Hong Kong decision of Citic Pacific v Secretary for Justice (No 2) [2015] 4 HKLRD 20. For the time being, however, as the Court of Appeal was bound by the doctrine of precedent, Three Rivers (No 5) remains good law in England. Plainly, it is ripe for reconsideration at Supreme Court level.

Lessons learned from the CAA v R (Jet 2) decision

Businesses, their in-house lawyers and external legal advisors now have clearer guidance about which communications will be protected from disclosure by LAP in English proceedings. In-house lawyers should consider whether current practices will result in LAP covering communications between them and others, as well as communications with external legal advisors.

The key point is that simply copying lawyers into an email chain will not render the communication privileged and protected from disclosure. CAA v R (Jet2) tells us that, to attract LAP, the most prudent course is to ensure that legal advice is expressly sought from lawyers, and ideally in a standalone communication rather than as a portion of a multi-purpose email which requests commercial advice as well. For those who may think that this is cumbersome, Hickinbottom LJ’s response is this: “LAP is a privilege, and those who wish to take advantage of it should be expected to take proper care when they do so.”

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