The Court of Appeal has slightly refined the test for legal advice privilege ("LAP")
Civil Aviation Authority -v- R Jet 2.com Ltd  EWCA Civ 35 (Jet2)
Jet2 helpfully brings the two types of privilege, Litigation Privilege and Legal Advice Privilege, in line with each other to the extent that both now require a "dominant purpose" test to be met. This is a welcome clarification, particularly as other common law jurisdictions such as Australia and Singapore already used a similar approach.
Whilst Jet2 maintains LAP's broad scope in protecting communications between lawyers and clients, created for the purpose of giving or receiving legal advice from being disclosed in legal proceedings, there are important practical lessons to be taken from it.
"Dominant Purpose" - multi addressee emails and multi issue meetings
The test for LAP is now that:
- There is a communication (whether written or oral);
- Between a client and a lawyer, or a lawyer and their client;
- Made in confidence; and
- For the dominant purpose of giving or obtaining legal advice about what should prudently and sensibly be done in the relevant legal context.
Jet2 confirms the well-established principle that sending a communication to a lawyer does not automatically protect it from being disclosed, particularly when emails are addressed to both lawyers and non-lawyers. If the dominant purpose of the email is to seek the non-lawyer's commercial views and a subsidiary purpose is to obtain legal advice from the lawyer addressees, the communication will not be privileged in its entirety.
This issue with multi-addressee emails is most likely to arise in an in-house corporate setting. Client communications with both in-house lawyers and external lawyers are protected by LAP subject to the test set out above. The lawyer's response to a multi-addressee email will likely be covered by LAP, provided that it contains legal advice rather than commercial advice, but the dominant purpose test may be more difficult to satisfy where material is sent internally to in-house lawyers who have dual legal and commercial roles in the business.
The court in Jet2 considered whether multi-addressee emails should be treated as separate communications between the sender and each recipient. The judgment favours treating them as a series of separate communications between the sender and each recipient, rather than as one communication, whilst also acknowledging that in most cases there will not be a different outcome if the correct approach to LAP overall is maintained. It is sensible, nonetheless, for parties to litigation to avoid using multi-addressee emails to seek legal advice alongside commercial input.
Notes of discussion in meetings are subject to the same test. The mere presence of a lawyer is not sufficient to attach LAP to the entire meeting's contents. If the dominant purpose of the discussions is non-legal, the meeting will not generally be privileged at all. Where legal advice is given, which is not "inextricably intermingled" with the non-legal advice, that communication can be severed and the privileged part redacted.
"Legal Advice" and "Relevant Legal Context"
"Legal advice" remains widely defined. It is not limited to what the law is and extends to the "continuum of communications" whereby the lawyer and client are kept updated throughout a case or transaction so that advice can be sought and given as required. Any assessment of the communication's dominant purpose should, therefore, consider whether it is an individual communication or part of a series which, overall, have the dominant purpose of obtaining legal advice.
Such legal advice must also be given in the "relevant legal context" for LAP to apply. Jet2 does not appear to significantly narrow LAP's protection and clients can be assured that when instructing lawyers in a "relevant legal context", most communications with the lawyer will remain privileged. Where there is a realistic possibility of a communication disclosing legal advice, Jet 2 confirms that the communication will be privileged.
Even if the dominant purpose of a lawyer's retainer is giving legal advice, that will not be conclusive as to whether LAP applies to a particular communication between a lawyer and client. Consideration of LAP has to be undertaken on the basis of particular communications, not simply on the relevant lawyer's brief or role.
The court did state that it is unlikely to be persuaded by "fine arguments" as to whether a particular communication falls outside legal advice. This is particularly the case where the legal and non-legal advice is so "intermingled" that severance is impossible and it can be "properly said that the dominant purpose of the [communication] as a whole is giving or seeking legal advice."
Jet2 also confirms that emails and attachments are to be considered separately, as was already understood to be the position. An email attachment is not protected by LAP simply because the email attracts LAP. So, whilst an email to a lawyer may be privileged, its attachment may not.
- Where legal advice is being sought this should be done separately from seeking commercial views on a case or transaction, so that there is no doubt that the dominant purpose of the separate communication is obtaining legal advice.
- In-house lawyers should consider whether they are being consulted as an executive or as part of their legal function. If they are being consulted as an executive, about a largely commercial issue, then the dominant purpose test is likely to prevent the communication from attracting privilege.
- If legal advice will be sought or given in a meeting where both lawyers and non-lawyers will be present, consideration should be given to whether the legal advice can be severed in the meeting minutes from other issues discussed.
- A privileged covering email will not automatically allow an attachment to benefit from LAP. The email and the attachment have to be considered separately for the purpose of decisions about disclosure.
- Pre-existing material collected by a client, or by a lawyer on their behalf, from third parties or independent agents for the purposes of instructing lawyers to give advice, is not covered by LAP.
- The breadth of the concepts of "legal advice" and the "continuum of communications" should be taken into account when applying the test for LAP.