The Court of Appeal handed down a significant decision on 28 January 2020 in Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35 which provides welcome clarity on when legal advice privilege applies to a particular document or communication. To come within the scope of legal advice privilege, it is not enough for a document to have had the purpose of receiving or seeking legal advice, rather that purpose must also be the “dominant” purpose.
The judgment is of particular relevance to litigators assessing the application of privilege to existing documents and communications and for organisations with in-house lawyers considering how they communicate internally in relation to sensitive legal matters. In practice, the decision clarifies that in communications with lawyers which are at the same time widely circulated to non-lawyers, legal advice privilege is not ipso facto applied, but instead the dominant purpose of the communication must be to seek or receive legal advice.
What is legal advice privilege?
Legal advice privilege covers confidential communications (written or oral) between a lawyer and their client for the purpose of giving or receiving legal advice. It applies to all advice in relation to a client’s legal rights and obligations. It does not apply to strategic or commercial advice.
As originally formulated by the courts, the privilege covered only confidential communications made between a lawyer and his client, or a lawyer or client and a third party, which came into existence for the purposes of litigation (“litigation privilege”). The rationale of the privilege was said to be that:
“it is an absolute necessity that a man, in order to prosecute his rights or defend himself from an improper claim, should have resource to the assistance of professional lawyers” and that “he should be able to make a clean breast of it to the gentlemen whom he consults” in the sure knowledge that his communications to and from the lawyer will be “kept secret” unless disclosed with his consent”
Anderson v Bank of British Columbia (1876) 2 Ch D 644 at page 649 per Sir George Jessel MR
Although legal professional privilege is regarded of such importance that it has been described as “absolute”; but, like most rights, it is not absolute in the true sense of that word, as the case at hand demonstrates.
Does legal advice privilege apply to accountants?
No. For privilege to apply, there must be a lawyer (i.e. a solicitor or barrister) in the communication for legal advice privilege to apply. Legal advice privilege does NOT extend to other professionals such as accountants. Therefore, in disputes with HMRC for example, (potentially incriminating) communications with an accountant can be disclosed and are not privileged. Therefore, in order to ensure confidentiality, a lawyer must be involved in the communications.
The Facts and Procedural Background
Judicial review proceedings were issued in April 2018 by the Respondent (“Jet2”), a company which operates flights to and from the United Kingdom, against the Appellant (“the CAA”), the UK aviation industry regulator. Judicial review proceedings were brought challenging the lawfulness of the CAA’s decisions
- to issue a press release in December 2017; and
- subsequently to publish correspondence between the CAA and Jet2 in February 2018 including the provision of such correspondence to the Daily Mail.
Both the press release and the CAA correspondence criticised Jet2’s refusal to participate in an alternative dispute resolution scheme for the resolution of consumer complaints which the CAA had promoted and in which almost all other large domestic airlines, and a substantial number of non-domestic airlines flying into the UK, had chosen to participate. The grounds of challenge to those decisions relevant to this appeal are that the CAA had no power to make the publications or alternatively, if it had such power, it exercised the power for unauthorised and improper purposes namely to damage Jet2’s trading interests, to punish Jet2 for its decision not to join the ADR Scheme and to put pressure on Jet2 to join the voluntary scheme.
Jet2 made an application in the judicial review claim for disclosure of several categories of document. The Respondent claimed the documents attracted legal advice privilege 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 in-house lawyers, whose legal advice was sought at the same time.
At first instance, 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 Court of Appeal decision
The key takeaway points from the Court of Appeal decision are:
i) Consideration of legal advice privilege has to be undertaken on the basis of particular documents, and not simply the brief or role of the relevant lawyer.
ii) However, where that brief or role is qua lawyer, because “legal advice” includes advice on the application of the law and the consideration of particular circumstances from a legal point of view, and a broad approach is also taken to “continuum of communications”, most communications to and from the client are likely to be sent in a legal context and are likely to be privileged. Nevertheless, a particular communication may not be so – it may step outside the usual brief or role.
iii) Similarly, where the usual brief or role is not qua lawyer but (e.g.) as a commercial person, a particular document may still fall within the scope of legal advice privilege if it is specifically in a legal context and therefore, again, falls outside the usual brief or role.
iv) In considering whether a document is covered by legal advice privilege, the breadth of the concepts of legal advice and continuum of communications must be taken into account.
v) Although of course the context will be important, the court is unlikely to be persuaded by fine arguments as to whether a particular document or communication does fall outside legal advice, particularly as the legal and non-legal might be so intermingled that distinguishing the two and severance are for practical purposes impossible and it can be properly said that the dominant purpose of the document as a whole is giving or seeking legal advice.
vi) Where there is no such intermingling, and the legal and non-legal can be identified, then the document or communication can be severed: the parts covered by LAP will be non-disclosable (and redactable), and the rest will be disclosable (see, e.g., Curlex Manufacturing Pty Limited v Carlingford Australia General Insurance Limited [1987] Qd R 335 and GE Capital Corporate Finance Group Limited v Bankers Trust Company [1995] 1 WLR 172).
vii) A communication to a lawyer may be covered by the privilege even if express legal advice is not sought: it is open to a client to keep his lawyer acquainted with the circumstances of a matter on the basis that the lawyer will provide legal advice as and when he considers it appropriate.
The Dominant Purpose test
Lord Justice Hickenbottom conducted a careful consideration of all the key case law in relation to legal advice privilege (and is recommended reading for all litigation practitioners). He concluded that the majority of the authority supported the inclusion of a dominant purpose criterion into legal advice privilege. Therefore the judge at first instance was right to proceed on the basis 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.
Will an email remain confidential if I copy in a lawyer?
Again, the Court of Appeal clarified the position when it comes to multi-addressees using the dominant purpose test. Accordingly, most communications between a lawyer and a client were likely be privileged. However, if the dominant purpose is to find out the commercial views of a non-lawyer addressee (such as a financial adviser or accountant), then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer.
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