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Court of Appeal confirms dominant purpose test for legal advice privilege

In the latest decision on Privilege the Court of Appeal has clarified that the dominant purpose test must be applied in order to establish legal advice privilege (“LAP”).

The dominant purpose test has long been understood to be a prerequisite to litigation privilege but the decision in Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35 has confirmed that this same test also applies to LAP.  The test requires that a communication must be for the dominant purpose of obtaining information or advice.

The Case

In this case, the Civil Aviation Authority (“CAA”), as the UK regulator of the aviation industry, issued a press release criticising Jet2’s refusal to sign up to an alternative dispute resolution programme for the resolution of consumer complaints.  Jet2 brought judicial review proceedings against the CAA to challenge the decision to publish the correspondence - it considered that the CAA had an ulterior motive in releasing such communications.  Jet2 made a subsequent application for disclosure of some documents held by the CAA which included drafts of a letter sent by the CAA to Jet2 and all discussions surrounding the draft.  The CAA opposed the application claiming that the documents were subject to LAP.

The judge at first instance held that, as obtaining legal advice would need to have been the dominant purpose of these documents, they were not covered by LAP and consequently should be disclosed.  The CAA appealed the decision. 

The Court of Appeal unanimously confirmed that any party claiming LAP is required to demonstrate that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice.  In this case the CAA could not meet this test and the documents were disclosable.

Comment

This case has made it clear that simply sending a communication to a lawyer, as part of a multi-addressee communication, is unlikely to be sufficient if the dominant purpose of the communication is to seek a commercial view rather than to obtain legal advice.  The court also confirmed where an email contains an attachment it is necessary to consider all documents independently of the others, so even if an email is privileged its attachment(s) might not be.

At first blush it appears that this case has created a narrowing of LAP however the Court of Appeal noted that a broad approach will be taken to the “continuum of communications” between a client and a lawyer and that legal advice includes not only advice on the application of the law but also the consideration of circumstances from a legal perspective.  Notwithstanding this, in order to maintain the strongest position, it is advisable that legal and commercial communications should be kept separately so as to avoid the need for the court to consider whether the legal and non-legal content can be severed which of course inevitably leaves a risk that the court would find that the non-legal context dominates the communication.

Posted on 4 March, 2020 by Ortolan

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