Court Of Appeal Finds Legal Advice Privilege Is Subject To A 'Dominant Purpose' Test

In a decision handed down earlier this week, the Court of Appeal has found that legal advice privilege (LAP) is subject to a "dominant purpose" test, ie that in order to benefit from LAP it is necessary to show that the dominant purpose of a communication was to give or obtain legal advice: The Civil Aviation Authority v The Queen on the application of Jet2.com Ltd [2020] EWCA Civ 35.

That has long been the case for litigation privilege, where it is essential to show that a communication or document was prepared for the dominant purpose of contemplated litigation, but the question of whether LAP is subject to a dominant purpose test has been far more controversial. Whilst the judge at first instance had found that there was such a test, leading textbooks and obiter comments by the Court of Appeal in SFO v ENRC [2018] EWCA Civ 2006 (considered here) suggested there was no such test. The application of a dominant purpose test in connection with LAP has often been viewed as inconsistent with the broad protection afforded under the LAP head, which covers the whole continuum of communications between lawyer and client which take place in a relevant legal context, as confirmed by the House of Lords in Three Rivers No 6 [2004] UKHL 48 (and applied for example in the RBS v Property Alliance Group decision considered here).

There is however good news from the perspective of those seeking to obtain the protection of LAP for lawyer/client communications to seek or obtain legal advice. Despite finding in favour of a dominant purpose test for LAP, the Court of Appeal's decision in this case does not significantly narrow down the protection of LAP as it was previously understood. The decision is clear that, where a lawyer is instructed in a relevant legal context, most communications between lawyer and client will be privileged. That is because, once there is a relevant legal context: (i) legal advice is widely defined, in that it is not limited to what the law is, but includes what should prudently and sensibly be done in the relevant legal context; and (ii) the protection includes communications aimed at keeping both lawyer and client informed so that advice may be sought and given as required. A particular document will not be privileged if it falls outside that legal context (and equally, part of a document will not be privileged if that part falls outside the legal context, assuming the parts can be separated out), but in general terms the protection of LAP should remain broad. Against that background, the dominant purpose test arguably does not add very much to the previous understanding of when LAP applies.

The decision also discusses the application of LAP in the context of emails sent to multiple addressees, including both lawyers and non-lawyers, particularly in an in-house setting. Unfortunately, the Court of Appeal's discussion of this important area is not easy to follow.

The decision says that if the dominant purpose of the multi-addressee email is to settle the instructions to the lawyers, then (subject to the principle set out in Three Rivers No 5 - as to which see below) it will be privileged, whereas if the dominant purpose is to seek commercial views from the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain advice from the lawyer addressee(s). That may be taken to suggest that, in the Court of Appeal's view, the multi-addressee communication must be viewed as a whole and its overall purpose determined. However, shortly afterward, the decision states that the court's "preferred view" is that each communication between the sender and each recipient should be considered separately, since LAP essentially attaches to communications and "it is difficult to see why the form of the request (in a single, multi-addressee email on the one hand, or in separate emails on the other) in itself should be relevant as to whether the communications to the non-lawyers should be privileged". Similarly, in the context of a meeting attended by lawyers and non-lawyers (where, the court said, the same principles should apply): "Legal advice requested and given at such a meeting would, of course, be privileged; but the mere presence of a lawyer, perhaps only on the off-chance that his or her legal input might be required, is insufficient to render the whole meeting the subject of LAP so that none of its contents (including any notes, minutes or record of the meeting) are disclosable." Overall, therefore, the analysis would appear to be that combining a privileged communication to a lawyer with a non-privileged communication to a non-lawyer (in a single email or in the same meeting) will not give the protection of privilege to the otherwise non-privileged communication.

The decision does contain some helpful discussion of the very narrow approach to who is the "client" for the purpose of LAP under English law, following the Court of Appeal decisions in Three Rivers No 5 and SFO v ENRC. Like the Court of Appeal in ENRC, the court said that if it had been free to do so it would have been "disinclined" to follow that approach. This adds to the weight of criticism of the Three Rivers No 5 approach at Court of Appeal level. However, any change to the law on that point will have to await a Supreme Court decision.

Intriguingly, there is some suggestion in the CAA v Jet2.com decision (including the discussion of multi-addressee emails referred to above) that the Court of Appeal was inclined to consider internal communications between non-lawyers to be privileged where they are for the dominant purpose of instructing the lawyer. It is not, however, clear precisely what scenario the court had in mind. In general, communications between non-lawyers will not be privileged under the LAP head (given that only lawyer/client communications are protected) save to the extent that they evidence the content of a privileged communication (or as the court put it in this case, if they "might realistically disclose" legal advice). Presumably the Court of Appeal's comments need to be understood in that context.

Background

The issues arose in the context of judicial review proceedings against the appellant in relation to its public criticism of the respondent's refusal to participate in an alternative dispute resolution scheme which the appellant had...