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Legal Advice is Dominant

In a Court of Appeal judgment published earlier this week, in which Hickinbottom LJ gave the lead judgment, and Patten and Peter Jackson LJJ both agreed, the Court of Appeal in dismissing an appeal on all grounds, gave helpful clarification on the application of legal advice privilege (LAP), finding that the relevant document or communication must have been created for the dominant purpose of giving or receiving legal advice. This clarifies what has, until now, been an uncertain area.

The judgment also confirms that LAP will apply to in-house lawyers, as it does to those in private practice, and gives helpful guidance in relation to waiver of privilege, as well as commenting on the much-criticised approach to the definition of a 'client' taken in Three Rivers (No.5)1.

In this article we examine all four developments that arise from the judgment in Civil Aviation Authority v R Jet2.Com Ltd [2020] EWCA Civ 35 (28 January 2020)2.

In Depth:

By way of a reminder, the English law of legal professional privilege (LPP) is seen as "a fundamental condition on which the administration of justice as a whole rests3", and which developed via cases such as Greenough v Gaskell(1833), which created the principle of privilege for clients seeking legal advice from their lawyers, and became what we now know as LAP. Anderson v Bank of British Columbia (1876) established privilege protection for those bringing or defending a claim i.e what we now recognise as 'litigation privilege'. For both LAP and litigation privilege, the aim is to allow parties to "make a clean breast of it" to their legal advisor in the knowledge that any information will be "kept secret", unless permission to disclose is given.

For a more detailed overview of the English law of privilege, please see our Privilege Client Guide4.

This matter arises from judicial review proceedings (JR) brought by Jet2 (Respondent in the Court of Appeal) against the Appellant, the Civil Aviation Authority (CAA), and its challenge on the lawfulness of the CAA's decision to issue a press release, and to publish certain correspondence critical of Jet2's decision not to participate in an alternative dispute resolution scheme. As part of the JR, the CAA resisted an application for specific disclosure, on the basis of privilege, which led to the hearing before the Court of Appeal, whose judgment we now discuss. For the purposes of this article, the facts are not relevant, but can be reviewed in the judgment5, if of interest.

The Court of Appeal was required to consider four issues concerned with the application of privilege, namely:

1. Whether, in order for LAP to apply, it is necessary for the communication or documentation to have been created for the dominant purpose of obtaining or giving legal advice?

  • In upholding the court of first instance judgment and dismissing the appeal, the Court of Appeal found that legal advice is required to be the dominant purpose, and that it is not sufficient for it to be one of a number of purposes.
  • The Court also recognised that "the jurisprudence is far from straightforward and the authorities do not speak with a single clear voice…..".

2. Whether LAP will still apply where emails are sent simultaneously to multi-addressees, including in-house lawyers and non-lawyers?

  • The Court of Appeal, dismissed this ground of the appeal. The Court found that it is necessary to identify the purpose of the communication, and the concept of the "continuum of communications"
  • If the dominant purpose is to create the instruction to the lawyer, and those so doing fall within the Three Rivers (No 5) definition of "client", LAP will apply, even where the lawyer is simply copied in for information, and where the communications are on-going. If however, the dominant purpose is to obtain the commercial advice of the non-lawyer, then LAP will not apply.

3. Whether in order to determine privilege, it is necessary to assess each email and attachment separately?

  • a. In dismissing this ground of the appeal, the Court repeated the long-held proposition that a document, which is not privileged will not become so simply by virtue of it being sent to a lawyer, even as part of a request for legal advice6, and consequently held that it will be necessary to carry out an analysis of the email and attachment, where one may be privileged and the other not.

4. The circumstances in which waiver and collateral waiver arise

  • The Court of Appeal was not required to deal with this ground of appeal, having found that the relevant documents were not privileged, but held that if it had, it would not have found there to have been a waiver following the voluntary disclosure of one email, on the basis that:
    • a voluntary disclosure of a document may result in a waiver of that document, but not necessarily amount to a collateral waiver of all related communication and documentation.
    • in order to assess whether the waiver extended to a collateral waiver, it is necessary to assess "the issue in relation to which the [voluntarily disclosed material] has been deployed, known as the "transaction test"…. " i.e. the waiver will be limited to the documents that emanate from the same "transaction", which is likely to be narrower, and is not the same as those that relate to the same subject matter.

Hickinbottom LJ commented that, if required to consider the point, he would have been "disinclined" to follow the approach in Three Rivers (No 5), and endorsed the reasons given in SFO v ENRC [2018]7, namely that the case does not reflect the practical reality of most large corporations when it comes to managing litigation and the teams that are responsible for instructing lawyers.

As a reminder, Three Rivers (No 5), held that for the purposes of assessing LAP, i.e. the privilege between the client and its lawyer, "client" is restricted to a very limited group of employees responsible for the giving of instructions and receiving of legal advice. The judge also notes the difficulties that Three Rivers (No 5) created in terms of putting this jurisdiction at odds with other common law jurisdictions.

It is hoped that the Supreme Court will have the opportunity to review the controversial Three Rivers (No5) decision.

What does this mean for you?

This case will give clarity and comfort to those engaging with their in-house and external lawyers. It is now clear that where:

  • the dominant purpose of the advice sought or given is legal, rather than commercial etc, LAP will apply (assuming that it is not waived or breached); and
  • voluntary disclosure is given, it is likely to affect only documents in the same "transaction", as the disclosed document, and not the more widely defined "relevant" documents.

Whilst this judgment goes a long way to clarifying the law on legal professional privilege, this is still a complex area and legal advice should be taken to ensure it is not inadvertently waived.

For further information, please contact your usual HFW contact, or the authors of this article:

Damian Honey
Partner
+44 (0)20 7264 8354
damian.honey@hfw.com

Nicola Gare
Professional Support Lawyer (Dispute Resolution)
+44 (0)20 7264 8158
nicola.gare@hfw.com

Footnotes

  1. Three Rivers No 5 [2003] QB 1556
  2. https://www.bailii.org/ew/cases/EWCA/Civ/2020/35.html
  3. R v Derby Magistrates' Court ex parte B[1996] AC 487
  4. https://www.hfw.com/downloads/HFW-client-guide-privilege.pdf
  5. See footnote 2.
  6. Ventouris v Mountain [1991] 1 WLR 607
  7. EWCA Civ 2006

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