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The Dos and Don’ts of Legal Advice Privilege following Civil Aviation Authority v R (on application of Jet2.com Limited)

On 28 January 2020, the Court of Appeal in Civil Aviation Authority (“CAA”) v R (on the application of Jet2.com Limited)[1] clarified that communications and documents are protected by Legal Advice Privilege (“LAP”) if their dominant purpose is to obtain or give legal advice. This article considers what the test means in practice and outlines the Court of Appeal’s helpful guidance on whether communications sent simultaneously to non-lawyers and lawyers are privileged. This article is particularly relevant to organisations whose in-house lawyers perform commercial and legal functions.  Such organisations may wish to review their internal communications procedures in the light of this case and should be aware of the risks of having to disclose drafts that are not covered by LAP.

For further information or advice, please contact Cheryl Gayer.

Click here to read the case in full.

What is Legal Advice Privilege?

LAP is a type of Legal Professional Privilege which prevents communications and documents between client and lawyer from being disclosable to the court and third parties if their purpose is to seek or give legal advice.  Litigation Privilege is another but different type of Legal Professional Privilege which prevents communications and documents between client or lawyer and third parties from being disclosable if their purpose is to pursue or defend actual or proposed litigation. Communications between client and lawyer concerning litigation may be protected by both types of privilege.

Background

In this case, Jet2 brought judicial review proceedings against the CAA for publishing a press release and a letter from the CAA to Jet2 criticising Jet2 for not participating in a consumer complaint resolution scheme. To try to establish whether the CAA was motivated by an improper purpose, Jet2 applied for specific disclosure of all drafts of CAA’s letter to Jet2 and all emails between CAA employees discussing drafts of the letter.

The CAA argued that the drafts of the letter and internal emails discussing the drafts were protected by LAP because their in-house lawyers were included in the emails and advised on the drafts.

The High Court rejected the CAA’s arguments and ordered that all drafts of the letter and all emails discussing the drafts should be disclosed.

Court of Appeal

On appeal, the Court of Appeal outlined five existing principles relating to LAP:-

  1. LAP applies to communications with external lawyers and in-house lawyers (if they are made for the purpose of obtaining or giving legal advice).[2]
  2. LAP applies to documents from a lawyer containing advice and to a client’s written record of that advice.[3] Where the client is an organisation, LAP also applies to internal communications between employees of the client passing on, considering or applying that advice.[4]  LAP also applies to communications from a lawyer to a third party containing information provided by the client to the lawyer which is covered by LAP and which the client authorised the lawyer to disclose. [5]
  3. LAP applies to communications and documents if they are made for the purpose of obtaining or giving legal advice but not if they are made for the purpose of obtaining or giving non-legal professional or commercial advice[6]. As such, LAP does not apply to documents passing between a client and a non-legal adviser such as a surveyor, even if those documents are to be shown to a lawyer to provide advice on them.[7]
  4. LAP does not apply to material collected from third parties or independent agents for the purpose of instructing lawyers to give advice.[8] Furthermore, where the client is an organisation, LAP will not apply to documents or other materials passing between an employee of the client and the client’s lawyers unless the employee has been tasked with seeking and receiving advice on behalf of the client.[9]  The employee of the client providing instructions to a lawyer must be able to ensure that the instructions are in accordance with the wishes of the senior executives.[10]
  5. LAP applies to communications that are made “in a legal context” and “legal advice” is widely defined.[11] The client’s instructions to the lawyer is a good starting point, although it is not determinative as to whether LAP applies to a particular communication between a lawyer and client.[12]  LAP can apply to advice provided by a lawyer “through a lawyer’s eyes”.[13]   LAP applies to information passing between a client and its lawyer that is part of a “continuum of communication” aimed at keeping both informed so that legal advice can be sought and given as required.[14]

The court provided a practical summary of the key points:-

  • LAP should be considered in relation to particular documents, and not simply the lawyer’s brief / role.[15]
  • If the lawyer’s brief / role is as a lawyer, most communications between the client and lawyer are likely to be made in a legal context and are likely to be protected by LAP, taking a broad approach to the meaning of legal advice.[16] A client’s email to its lawyer providing an update on a matter so that the lawyer can provide legal advice as and when appropriate may be protected by LAP, even if it does not expressly seek legal advice.[17] However, a particular communication may not be protected by LAP if it falls outside the lawyer’s usual legal brief / role.[18]
  • If the lawyer’s brief / role is as a commercial person, most communications are likely to be disclosable. However, a particular document may be protected by LAP if it is in a legal context and falls outside the lawyer’s usual commercial brief / role.[19]
  • Where legal and non-legal advice are so intermingled in a particular document or communication that distinguishing and severing them is practically impossible, it is likely that LAP will apply if the dominant purpose of the document or communication as a whole is giving or seeking legal advice.[20]
  • Where legal and non-legal advice can be distinguished and severed in a document or communication, the parts covered by LAP will be non-disclosable and redactable whereas the rest will be disclosable.[21]

Dismissing the appeal, the Court of Appeal upheld the High Court’s conclusions that:-

  1. LAP could (in theory) attach to the emails between the CAA’s in-house lawyers and non-legal employees because the in-house lawyers were included to provide legal advice and the non-legal employees were senior executives able to provide instructions on behalf of the CAA; and
  2. drafts of the letter and the emails between CAA in-house lawyers and non-legal employees were not protected by LAP because seeking and giving legal advice was not the dominant purpose of those communications.

The court’s guidance on the issues involved in the appeal are important to note and are summarised below. The Issue 2 is particularly relevant to organisations whose in-house lawyers provide both legal and commercial advice.

Issue 1: is legal advice privilege subject to a dominant purpose test?

Yes.  The Court of Appeal confirmed that a communication or document is protected by Legal Advice Privilege if “the dominant purpose of that communication or document was to obtain or give legal advice”.[22]

Issue 2: are multi-addressee communications between lawyers and non-lawyers protected by legal advice privilege?

It depends. The Court of Appeal suggested the following approach when considering whether LAP applies to emails sent simultaneously to non-lawyers and lawyers:

  1. As a starting point, consider whether the lawyer (particularly an in-house lawyer) is being included in correspondence to give legal advice or commercial advice. After considering what role the lawyer is performing, the dominant purpose test should be applied to every email and every document.[23]
  2. If the lawyer is included in correspondence to give legal advice, identify whether the dominant purpose of the communication is to (a) provide instructions to the lawyer to give legal advice or (b) obtain commercial views of the non-lawyers. If the purpose is (a), the communication is covered by LAP. If the purpose is (b), the communication is not covered by LAP, even if a subsidiary purpose of the communication is to obtain legal advice from the lawyer.[24]
  3. If the lawyer responds giving legal advice, the lawyer’s communication will almost certainly be covered by LAP.[25]
  4. Consider multi-addressee communications as separate bilateral communications between the sender and each recipient.[26] Consider whether the email would be covered by LAP if it had only been sent to the lawyer. If the answer is no, the email is not covered by LAP.  If the answer is yes, the communication will only be covered by LAP if the dominant purpose of the email to the non-lawyers is to obtain instructions for the lawyer or to disseminate legal advice internally.[27]
  5. A communication or document will be covered by LAP if it might realistically disclose legal advice.[28] When considering whether a document might disclose legal advice and be covered by LAP, the document should be considered in the context of the communications which preceded and followed it.[29]
  6. The mere presence of a lawyer at a meeting is not enough to make the contents of the meeting (including any notes, minutes or record of the meeting) protected by LAP. If the dominant purpose of the meeting is to obtain legal advice or to settle instructions to a lawyer, the contents of the meeting will be covered by LAP, although anything said outside the legal context may not be.  If the dominant purpose of the meeting is commercial, the meeting and its contents will not be covered by LAP, although any legal advice sought or given in the meeting may be.  Where privileged and non-privileged parts can be separated, it is likely that the non-privileged parts will be severed and the privileged parts redactable on disclosure.[30]

Issue 3: should emails and attachments be considered separately or together?

A document which is not privileged does not become privileged simply because it is sent to a lawyer.[31] Emails and attachments should be considered separately for the purpose of identifying whether they are covered by LAP.[32]

Issue 4: does voluntary disclosure of privileged material cause collateral waiver of privilege?

Voluntarily disclosing privileged material may result in privilege being waived in other material that is relevant to the same “transaction” or act  (known as a collateral waiver).[33]  The extent of the collateral waiver will depend on what is fair in the circumstances. Where that material is part of a bigger picture, principles of fairness could require material not relevant to the specific transaction to be disclosed in order to avoid misunderstandings.[34]

Conclusion

This case provides a vital message to organisations to take care when sending emails and attachments to multiple recipients including in-house lawyers. Care should therefore be taken to consider if each recipient actually needs to receive it. Internal emails and attachments will only be protected by LAP if either their dominant purpose is to seek / provide legal advice or they disclose the nature of the legal advice being sought / provided. Organisations may wish to review and amend their internal communications procedures to try to ensure that legal and commercial issues are discussed in separate communications.

For further information or advice, please contact Cheryl Gayer.

 

[1] [2020] EWCA Civ 35

[2] Paras 44 and 45

[3] Para 45

[4] Para 45

[5] Para 45. See Raiffeisen Bank International AG v Asia Coal Energy Ventures Limited and Ashurst LLP [2020] EWCA Civ 11.

[6] Para 46

[7] Para 46

[8] Para 47

[9] Para 47. See Three Rivers Council v The Governor and Company of the Bank of England (No 5) [2002] EWHC 2730 (Comm), followed by Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006.

[10] Para 56

[11] Para 60

[12] Para 67

[13] Para 67

[14] Para 68

[15] Para 69(i)

[16] Paras 69(ii) and (iv)

[17] Para 69 (ivv)

[18] Para 69(ii)

[19]Para 69(iii)

[20] Para69 (v)

[21] Para 69(vi)

[22] Para 96

[23] Para 100(i)

[24] Para 100(ii)

[25] Para 100(iii)

[26] Para 100 (iv)

[27] Para 100 (v) and (vi)

[28] Para 100 (vii)

[29] Para 101

[30] Para 100 (viii)

[31] Para 107

[32] Para 108

[33] Para 111

[34] Para 114


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.