227: Court of Appeal new guidance on legal advice privilege

In Civil Aviation Authority (CAA) v Jet2.com Ltd, the Court of Appeal has given important new guidance on legal advice privilege which will be particularly important for organisations with in-house lawyers. Legal advice privilege applies to confidential written or verbal communications between a lawyer and their client for the purpose of giving or obtaining legal advice. This is different to litigation privilege which applies to confidential communications made between a lawyer and their client, or a third party, which came into existence for the dominant purpose of litigation.

This dispute arose out of judicial review proceedings brought by Jet2 against the CAA relating to the CAA’s role in leaking correspondence which was critical of Jet2’s decision not to participate in an industry-wide ADR scheme for consumers. Jet2 applied for specific disclosure of all drafts of one of the CAA’s leaked letters, and any documents evidencing discussions of those drafts. The CAA claimed legal advice privilege for these communications on the basis that its in-house lawyers had been involved in the drafts and the subsequent discussions on them.

The Court of Appeal’s decision clarifies various aspects of legal advice privilege:

• legal advice privilege can apply to communications with external and in-house lawyers;
• a party claiming legal advice privilege must show that the relevant document or communication was created or sent for the dominant purpose of obtaining or giving legal advice. This issue had previously been the subject of conflicting case law;
• legal advice privilege also covers any communication which passes on, considers or applies the lawyer’s advice internally or to third parties;
• where emails are sent to multiple addressees, some of whom are lawyers and some are not, the dominant purpose test must also be applied. If the dominant purpose was to obtain legal advice, the email is privileged. If the dominant purpose was to seek commercial views or other professional advice, the email will not be privileged;
• the same approach will apply to discussions at meetings attended by lawyers and non-lawyers at which both commercial and legal matters are discussed. This means that the mere presence of a lawyer, perhaps only on the off chance that their legal input might be required, will not be sufficient for legal advice privilege to apply to the whole meeting and any notes or records of that meeting; and
• an email and any attachments must be assessed separately for privilege. Even if an email is privileged, it does not follow that the attachment will be.

The Court of Appeal’s judgment provides helpful practical guidance for employers and is a useful reminder of the importance of establishing internal procedures which ensure that sensitive communications are dealt with appropriately. It is important to note that internal email chains or meetings which involve an in-house lawyer will still be disclosable if they do not satisfy the dominant purpose test.