English Court of Appeal Considers Test for Legal Advice Privilege

In Civil Aviation Authority v. R (on the Application of Jet2.com Ltd.), the English Court of Appeal clarified the test for legal advice privilege, confirming the need to show that the dominant purpose of the relevant communication or document was to obtain or give legal advice in order for it to be privileged. The Court of Appeal also revisited the approach to be taken with respect to multi-addressee communications.

Background

The appeal was brought by the Civil Aviation Authority (CAA) in the context of judicial review proceedings that were brought against it by Jet2 airline. The airline was challenging the CAA’s decision to make public certain publications criticizing Jet2’s decision not to join a particular alternative dispute resolution scheme that the CAA was promoting.

Jet2 had written to the CAA on January 16, 2018, complaining about a December 2017 press release, and the CAA responded to Jet2 on February 1, 2018. In the course of the judicial review proceedings, Jet2 made an application for the disclosure of (1) all drafts of the February 1, 2018 letter and (2) all records of any discussions of those drafts. In its first instance judgment, the English High Court held that those documents that had not been prepared for the dominant purpose of obtaining or giving legal advice were disclosable.

The High Court further held that this test also applied to multi-addressee communications that were copied to in-house lawyers, so that where it was apparent from its contents that the dominant purpose of an email as sent to a nonlawyer was to obtain commercial views, privilege would not apply. On the other hand, where the content of the email, or the response from the nonlawyer, discloses or is likely to disclose the nature and content of the legal advice sought and obtained, the document would be protected by privilege.

The CAA appealed the High Court’s decision on the following points of law, among others:

1. Whether the High Court had been right to apply the dominant purpose test as a condition for legal advice privilege.
2. Whether, in the light of its adoption of the dominant purpose test, the High Court had erred in its analysis of multi-addressee communications.
3. Whether the High Court had erred in holding that each email and attachment must be considered discretely and in isolation from its “family.”

The Court of Appeal’s Analysis

The Court of Appeal conducted a thorough review of the authorities on the circumstances in which legal advice privilege attaches to documents, noting the following general propositions about the approach to be taken in analyzing legal advice privilege that had been identified in previous court decisions:

1. Consideration of legal advice privilege had to be undertaken on the basis of particular documents, not simply by the brief or role of the relevant lawyer.
2. Where the brief or role was by or as a lawyer, because “legal advice” included advice on the application of the law and the consideration of particular circumstances from a legal viewpoint, most communications to and from the client were likely to be privileged since a broad approach is taken to “continuum of communications.”
3. Where the brief or role was not by or as a lawyer, but instead, for example, by or as a commercial person, a document might still fall within the scope of legal advice privilege if it was specifically in a legal context.
4. In considering whether a document is covered by legal advice privilege, the breadth of the concepts of “legal advice” and “continuum of communications” had to be taken into account.
5. Although the context will be important, the court is unlikely to be persuaded by fine arguments as to whether a particular document or communication falls outside legal advice, particularly as the legal and nonlegal might be so intermingled that distinguishing and severing the two is likely to be impossible, and it can be properly said that the dominant purpose of the document as a whole is giving or seeking legal advice. Where the legal and nonlegal parts could be identified, a document could be severed and the relevant privileged parts could be redacted.
6. A communication to a lawyer might be covered by privilege even if express legal advice was not sought, as a client may choose to keep its lawyer acquainted with a matter on the basis that the lawyer will provide legal advice as and when he/she considers it appropriate.

In response to the CAA’s specific grounds of appeal, the Court of Appeal decided[1] as follows:

Dominant Purpose Test

The Court of Appeal agreed with the High Court 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. However, the Court of Appeal agreed with the first instance judge that, where a communication might realistically disclose the nature of the legal advice being sought from, or given by, the lawyer, that communication would in any event be privileged. Furthermore, it confirmed that a response from a lawyer containing legal advice would almost certainly be privileged even if copied to more than one addressee.

While the Court of Appeal accepted that the jurisprudence on this issue was far from “straightforward,” it held that there was no reason for not following the preponderance of authority that supports the inclusion of a dominant purpose criterion. Legal advice need not be requested specifically in the document or communication; rather it was sufficient for a lawyer to have been sent material upon which to advise if he or she considered advice necessary or appropriate. Further, the question of the “dominant purpose” should be considered in the light of the “continuum of communication” between client and lawyer.

Multi-Addressee Communications

The Court of Appeal confirmed that the dominant purpose test should still be the first step of the privilege assessment in considering communications addressed to multiple recipients, including nonlawyers. If it was determined that obtaining legal advice was the dominant purpose of such a communication, privilege should attach. That would be the case even if that communication was sent to the lawyer by way of information or if it was part of a rolling series of communications with the dominant purpose of instructing the lawyer. On the other hand, if the dominant purpose was to obtain the commercial views of the nonlawyer addressees, it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

The Court of Appeal also indicated that its preferred approach to multi-addressee communications was to consider them as separate bilateral communications between the sender and each recipient, rather than as a whole. In any event, it doubted whether there would be any difference in consequence between the two approaches provided that the correct approach to determining legal advice privilege was maintained.

The Court of Appeal held that the same principles and dominant purpose test would apply to meetings (including the records of such meetings), so that legal advice requested and given at such a meeting would be privileged, but the mere presence of a lawyer would be insufficient to render the whole meeting the subject of legal advice privilege so that none of its contents (including any notes, minutes, or records of the meeting) would be disclosable.

Assessment of Emails and Attachments in Isolation

The Court of Appeal agreed with the High Court that some separate consideration of substantive documents and attachments must be undertaken. While an email and its attachment can be regarded as a single communication, separate consideration will need to be given to the attachment in and of itself.

Criticism of Court of Appeal’s Decision in Three Rivers No. 5

While the Court of Appeal’s judgment sought to provide guidance on the scope of legal advice privilege, it also confirmed its view that the state of the law on this topic was far from ideal following the Court of Appeal’s decision in Three Rivers District Council & Ors v. Governor & Co. of Bank of England (Three Rivers No. 5).[2]

In delivering the leading judgment, Hickinbottom LJ, with whom the rest of the Court of Appeal agreed, said that he found aspects of the Three Rivers No. 5 judgment “difficult” and that he did not find the analysis or conclusion of Longmore LJ—who held that agents or employees of a client who were not instrumental in instructing lawyers could be equated with third parties such that documents given by such agent or employee to an employer or fellow employee would not attract legal advice privilege—“easy”.

He referred to the decision of the Court of Appeal in Director of Serious Fraud Office v. Eurasian Natural Resources Corp. Ltd. (Eurasian),[3] in which the Court of Appeal indicated that it would have departed from Three Rivers No. 5 on this issue if it had been open to it to do so. Hickinbottom LJ said that he agreed with Sir Geoffrey Vos C’s view in Eurasian that, in the modern world, we have to cater for legal advice being sought by large national corporations where information upon which legal advice is sought is unlikely to be in the hands of the main board or those it appoints to seek and receive legal advice, and that if such corporations cannot ask their lawyers to obtain such information from a corporation’s employees, it will be in a less advantageous position compared to a smaller entity seeking legal advice. The Court of Appeal’s view in Eurasian was that, whatever the rule is, it should apply equally to all clients, whatever their size or reach.

As in Eurasian, Hickinbottom LJ confirmed that “on the basis of both principle and practical application” he doubted both the analysis on this issue and the conclusion in Three Rivers No. 5, and that had it been in the Court of Appeal’s power, he too would have been disinclined to follow it. However, he accepted that he had no such power and that the House of Lords (now the English Supreme Court) in Three Rivers No. 6[4] confirmed that the decision in Three Rivers No. 5 was binding on the Court of Appeal.

Therefore, as Hickinbottom LJ acknowledged, given that the Supreme Court had already declined to express its views on Three Rivers No. 5 when it had an opportunity to do so in Three Rivers No. 6, the guiding precedent on this issue remains Three Rivers No. 5 for the foreseeable future.

Contacts

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David Waldron