What is legal advice privilege?

This blog discusses the thorny subject of legal advice privilege (LAP) and the Court of Appeal’s recent decision in Jet2.com v Civil Aviation Authority [2020] EWCA Civ 35 (Jet2.com), which has clarified the pre-conditions necessary to establish LAP.

Privilege is the term applied to communications between a lawyer and client or a lawyer and third party which determines those communications are confidential and cannot be disclosed to any third party including the court without the client’s permission.  There are two broad forms of privilege: Legal Advice Privilege (LAP) and Litigation Privilege (LP).

LAP applies to all confidential communications between a lawyer and his client made for the purposes of giving or obtaining legal advice. Despite the range of documents to which LAP applies being much narrower than that of LP, LAP, is often considered by the English legal system to be the quintessential ‘safe place’ for confidential communications passing between a lawyer on the one hand and a client on the other. The principle underlying this privilege is that a person must be able to consult his/her lawyer in confidence; otherwise, they might withhold salient matters.

Litigation Privilege applies where litigation is in reasonable prospect. It is considerably wider than LAP because it covers communications for the purpose of litigation (often put as the dominant purpose) with third parties e.g. experts in the litigation.

The ambit of LAP was extensively considered in the Three Rivers (No5 and No6) litigation, but the evolution of LAP thereafter has been somewhat unclear. This blog does not propose to descend into the specific facts of that complex litigation, however it is sufficient for the purposes of what follows to note that the Court in the Three Rivers (No5 and No6) litigation:

1. restricted the scope of the meaning of ‘client’: the Court of Appeal held that LAP excludes from its ambit documents passing between employees of a corporate body who are not directly involved with instructing that party’s lawyers, even if the purpose of those communications was to enable those lawyers to be instructed by other employees with that designated responsibility.
2. held that putting relevant factual material before an enquiry in an orderly and attractive fashion (known as a presentational advice) which was prepared for the purposes of taking legal advice upon such material attracts LAP. The House of Lords overturned the Court of Appeal’s decision that such presentation advice ought not to attract LAP because it was not prepared for the “dominant purpose” of obtain a lawyer’s advice.

It is the second of these findings that Jet2.com tackles head on and in particular the question of whether English law necessitates a “dominant purpose test” for LAP as it does for LP i.e. whether for LAP to bite, the purpose of giving legal advice has to be the dominant purpose of the communication, or just one of the purposes as per Three Rivers (No6).  The authorities on this issue have not been consistent; however the balance of authority has always been in favour of a dominant purpose test requirement for LAP and this is what the Court of Appeal has confirmed in Jet2.

Jet2.com v Civil Aviation Authority [2020] EWCA Civ 35
The appeal in Jet2 arose out of an application for specific disclosure made by Jet2 in proceedings against the CAA. Jet2 sought the disclosure of all drafts of a letter that it had received from the CAA and internal discussions concerning those drafts.  The CAA asserted that those were privileged as a result of the involvement of its in-house lawyers.

On the facts of the case, most of the documents in question were emails sent to a number of email addresses, some of whom were lawyers.  The Court of Appeal determined that where there is a single email sent simultaneously to various individuals, including a lawyer for their input, the purpose of the communication needs to be considered and identified.  The wide scope of legal advice and the context of a continuum of communication must be taken fully into account.

Critically, it was said that if the dominant purpose of the communication is to settle the instructions to a lawyer then that communication will be covered by LAP. Thus, if the dominant purpose is to obtain the commercial views of a non-lawyer addressee then it will not be privileged, even if the subsidiary purpose is to also obtain legal advice from the lawyer.

The decision in Three Rivers (No.5) remains unaffected.  Thus material collected by a client (or its lawyer) from third parties for the purposes of instructing lawyers is not privileged. In addition, where the client is a corporation, the definition of ‘client’ is very narrow – an employee is only deemed to be ‘the client’ for the purposes of legal advice privilege where s/he has been tasked with seeking and receiving legal advice on behalf of the corporation.

Where the response from the lawyer contains legal advice, it will almost certainly be privileged even if it is copied to more than one addressee.  The dominant purpose test still applies and the Court will be reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was a provision of legal, rather than non-legal, advice.

Where there are multi-addressee communications, the Court said they should be considered as separate communications between a sender and each recipient.  Emails and their attachments must each be assessed separately for legal advice privilege.

Comment
This clarification from the Court of Appeal brings us into line with the established approach of other common law jurisdictions, such as Australia, Singapore and Hong Kong.

Where possible, clients would be well advised to keep communications between lawyers and non-lawyers separate.  Where both legal and commercial issues are being raised, determining whether the dominant purpose in the circumstances was to seek or give legal advice will be ripe ground for contention.  The case is a timely reminder to clients to consider how to manage internally sensitive communications where legal advice is being requested, whether through in-house or external lawyers.

The same considerations will apply to meetings. The fact that a lawyer is present at a meeting does not automatically result in the meeting being covered by legal advice privilege. This will have an impact of any notes/records of meetings.

For further information regarding this topic, please contact Zahira Hussain, Thomas Johnson or any member of the Edwin Coe Litigation and Dispute Resolution team.

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