A decision from the Court of Appeal on 28 January 2020 concerning legal advice privilege (The Civil Aviation Authority v R (on the application of Jet2.com Limited)  EWCA Civ 35) has important ramifications for in-house lawyers, general counsel and those who seek advice from them.
The background to the case can be briefly summarised. In judicial review proceedings initiated by Jet2.com Limited (“Jet2”) against a decision of the Civil Aviation Authority (“CAA”), Jet2 requested disclosure of certain documents held by the CAA. Jet2 wished to see all drafts of a letter which the CAA had sent to Jet2 and all records of any discussions concerning those drafts. The CAA resisted disclosure on the basis that the documents were covered by legal advice privilege. In-house lawyers at the CAA had been involved in discussions about the letter and had given advice in relation to the drafts. However, some of the documents falling into this category were internal emails sent to multiple recipients within the CAA, including in-house lawyers and others in non-legal roles, which did not necessarily solely concern legal advice.
Following an unfavourable decision in the High Court, the CAA appealed to the Court of Appeal, which concluded that, in order for a document or communication to be covered by legal advice privilege, the dominant purpose in sending or creating it must be to obtain or give legal advice (in addition to the other established requirements for legal advice privilege). In the absence of this dominant purpose, the document will only be privileged if it is nevertheless likely to disclose the nature and content of the legal advice sought or given.
The Court of Appeal’s ruling is notable for a number of reasons. It has long been a matter of debate whether a dominant purpose test applies to legal advice privilege (in contrast to litigation privilege, where it is firmly established that a dominant purpose test does apply). The question briefly arose in the recent decision of Director of the Serious Fraud Office v ENRC  EWCA Civ 2006 (see our blog on this case here), with the court noting obiter that it was hard to see why such a test was necessary. The Court of Appeal in Jet2, however, did not share this view and concluded that the balance of authority was in favour of the dominant purpose test.
Where a company seeks the advice of external lawyers, the test is unlikely to cause any real difficulty. The dominant purpose of communications or documents in this context will almost certainly be seeking or obtaining legal advice; why else would external lawyers be engaged? However, the test will have an impact on in-house lawyers, as in their role the boundaries between legal advice and commercial advice can often become blurred and it is not unusual for their input to be sought on a quasi-legal, or even purely commercial, basis. In addition, emails sent to a list of recipients including lawyers (particularly in-house lawyers) and non-lawyers are common in many organisations, and it is here that the case has particularly important ramifications. Consider the scenario below as an example:
The communications director of a large company is preparing a press release to announce the findings of an internal investigation into suspected fraud within the company. They copy the proposed text into an email and send it to an in-house lawyer and the finance director. The email says, “Please see below my proposed wording for the press release. Grateful for any comments or suggested amendments.”
The lawyer is undoubtedly being asked to comment on the draft from a legal perspective, and if it was sent only to them it would be privileged. However, unless the dominant purpose of this email is to obtain that legal advice, the email will not be privileged. If, as is far more likely, the email has a dual purpose of obtaining commercial/non-legal advice from the finance director and legal advice from the lawyer, and these purposes are of equal importance, the email will not be privileged (although the response from the lawyer may be).
Jet2 does not necessarily represent a change in the law per se, but it does remove some of the ambiguity created by earlier authorities which might have allowed for a more favourable interpretation of the limits of legal advice privilege. In-house lawyers should take note of this decision and consider whether their internal procedures offer sufficient protection to the company’s privilege. At the very least, in-house lawyers should ensure that their colleagues are aware that simply ‘copying Legal’ into an email does not guarantee that the communication will be privileged. To avoid ambiguity, and to take a cautious approach, any legal advice should be sought and provided in a standalone email between the lawyer and the individual(s) within the company seeking the advice. It would also be advisable to mark the email ‘legally privileged’, preferably in the subject heading. This will ensure that, if a disclosure request is made in some future proceedings, documents over which a claim to privilege might be made will be easily identifiable.