Claims for legal advice privilege were said to be subject to a dominant purpose test, namely whether the communication or document was brought into existence with the dominant purpose of it or its contents being used to obtain legal advice. In the instant case, any drafts of a letter sent by the Civil Aviation Authority (CAA) to Jet2.com that were created before the CAA’s in-house lawyers had been consulted on its terms (and were therefore not drafted for the dominant purpose of giving or obtaining legal advice) were not privileged: R on the Application of Jet2.com Ltd v CAA[2018] EWHC 3364 (Admin).

Jet2 brought judicial review (JR) proceedings challenging the CAA’s decision to publish a press release (in which the CAA was critical of Jet2’s refusal to participate in a new ADR scheme proposed for the aviation authority) and the CAA’s decision to publish inter partes correspondence regarding that press release.

By way of reminder, disclosure is not required in JR proceedings unless the court orders otherwise. However, where the court is required to resolve factual disputes, disclosure will be ordered where it appears to be necessary in order to resolve the matter fairly and justly. Here such an issue of fact was whether the decision to publish the press release and inter partes correspondence had been taken for an improper purpose (as was claimed by Jet2).

Documents sought by Jet2, and resisted on privilege grounds

Jet2 sought disclosure of documents which included (i) all drafts of a letter from the CAA to Jet2 dated 1 February 2018 (the Letter) which criticised Jet2’s decision not to participate in the ADR scheme; and (ii) all records of any discussions concerning those drafts.

The CAA asserted legal advice privilege over drafts of the Letter, where they were prepared for the purpose of obtaining legal advice, and also where they were drafted in the knowledge that a lawyer was going to look at them. Further, discussions of the drafts with others, the CAA argued, remained covered by privilege because they were covered by the continuum of communications with the in-house lawyer.

Legal Advice Privilege

Legal advice privilege (LAP) applies to confidential communications between a client and its lawyer made for the purpose of giving or obtaining legal advice.

There has long been an academic debate as to whether the test for determining the scope of LAP includes a “dominant purpose” element. Many had thought this had been put to bed following obiter comments by the Court of Appeal in SFO v ENRC [2017] EWHC 1017 (QB): “In our judgment, however, it is hard to see why the suggested additional qualification is necessary, when the privilege can, by definition, only be claimed when legal advice is being sought or given. It is one thing to say that litigation privilege can only be claimed where the communication is created for the dominant purpose of the litigation, but entirely another to say that legal advice privilege can only be claimed where the communication is created for the dominant purpose of seeking legal advice. The second is tautologous.”

Morris J disagreed and did not feel constrained by the Court of Appeal “given the particular facts of that case” (which he did not elaborate on). He held that on the current state of authorities, claims for LAP are, in principle, subject to a dominant purpose test, namely whether the communication or document was brought into existence with the dominant purpose of it or its contents being used to obtain legal advice.

Application of dominant purpose test

Morris J acknowledged that in normal cases of an email sent by a client to an external lawyer, the issue of dominant purpose is unlikely to arise. However, the question of dominant purpose may be more relevant where material is sent internally to in-house lawyers, who may have a dual role in the company.

Lawyers, particularly in-house solicitors, may often take part in general business discussions which do not involve legal advice. Where the in-house lawyer is clearly being asked for legal advice, privilege is likely to attach. However, where the in-house lawyer is being consulted also as an executive about a largely commercial issue, then, according to Morris J, the dominant purpose test will apply.

Communications to legal and non-legal people

There is no established authority regarding the privilege analysis of a communication (such as an email) sent by an internal employee to multiple addressees, where some are lawyers and others are not. Morris J’s view was that if the dominant purpose of the email is to seek legal advice from the lawyer and others are copied in for information only, then the email is privileged, regardless of who it is sent to. If on the other hand, the dominant purpose of the email is to seek commercial views, and the lawyer is copied in, whether for information or even for the purpose of legal advice, then the email, in so far as it is sent to the non-lawyer, is not privileged. Further, if sent to the non-lawyer for a commercial comment, and sent to the lawyer for legal advice, then, in his judgment, the email in the hands of the non-lawyer is not protected by privilege, unless it or the non-lawyer’s response discloses or might disclose the nature of the legal advice sought and given.

Morris J concluded that drafts of the Letter which were created prior to consultation with the in-house lawyers were not privileged. That was the case even if it was known that legal advice would be taken on the draft in due course, or that the in-house lawyers were later shown the draft.

Further drafts of the Letter would also not be covered by privilege unless specifically drafted by the lawyers or for the dominant purpose of obtaining legal advice.

Consequently, the CAA was directed to reconsider the materials over which it had claimed legal advice privilege and to disclose further documents or to provide a witness statement to explain what has, and has not, been disclosed.

Whilst almost all communications with external lawyers will be for the dominant purpose of seeking legal advice, the issue may be more fact sensitive for communications between a client and its in-house lawyers. In this scenario it is not uncommon for an executive to seek some commercial advice from the in-house lawyers at the same time as the legal advice is also sought. It may therefore be best in future if such commercial advice was discussed separately to ensure that the legal advice sought and provided retains its privileged status.