Tughans Solicitors

Legal Advice Privilege – Court of Appeal judgment shapes new guidance for In-House Lawyers

In February the Court of Appeal handed down a judgment in the case of The Civil Aviation Authority v Jet2.Com Ltd [2020] EWCA Civ 35 (the “Judgment”) that provides important new guidance on the scope of application of Legal Advice Privilege (“LAP”).

BACKGROUND

Jet2.Com Limited (“Jet2”) made an application for specific disclosure (referred to as “specific discovery” in Northern Ireland) in the context of Judicial Review proceedings commenced by it against the Civil Aviation Authority (the “CAA”).

In the application Jet2 sought disclosure of all drafts of a particular letter which the CAA had sent to Jet2 and all records of discussions concerning these drafts.    The CAA refused to provide these documents on the basis that its in-house lawyers had been involved in preparing these drafts and the associated discussions for the purpose of giving legal advice; therefore LAP attached to same.

The Judge at first instance held that LAP only applied to communications or documents produced for the dominant purpose of seeking or providing legal advice.  On that basis, several communications fell to be disclosed.  The CAA appealed this decision.

PRIVILEGE

Privilege provides individuals and corporate entities the right to resist disclosure of certain confidential and sensitive material to the Court or third parties.  The two main forms of privilege are LAP and Litigation Privilege.   LAP protects (written or oral) confidential communications between a lawyer and a client for the purpose of giving or receiving legal advice.

LAP is to be contrasted with Litigation Privilege which is a form of privilege which protects confidential written or oral communications between client or lawyer (on the one hand) and third parties (on the other), or other documents created by or on behalf of the client or his lawyer, which come into existence for the dominant purpose of litigation that is either in the reasonable contemplation of the parties, pending or already commenced.

 

THE JUDGMENT

The key issue before the Court of Appeal was whether, for a communication to fall within the scope of LAP, it must have had the dominant purpose of seeking or giving legal advice.

It has long been a matter of debate whether a dominant purpose test applies to LAP (in contrast to litigation privilege, where it is well established that the dominant purpose test applies). The Court found that, on the balance of authority, the dominant purpose test does apply to LAP.

Therefore for LAP to attach to a particular communication or a document, the party claiming privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice.

The Court also found that:

  • Consideration of LAP has to be undertaken on the basis of the purpose of each particular document or communication and not simply the brief or role of the relevant lawyer.
  • In considering whether a document or communication is covered by LAP, the purpose of the document or communication needs to be identified taking into account the scope of legal advice and the concept of “continuum of communications” (i.e. rolling series of communications).
  • Multi-addressee emails should be considered as a series of separate communications.
  • An email and any attachment(s) must be separately assessed for privilege.
  • A communication that is not for the dominant purpose of giving or receiving legal advice, but might realistically disclose legal advice, is privileged.
  • In relation to meetings attended by lawyers and non-lawyers at which commercial matters are discussed with lawyers in attendance to provide legal advice if and when required, it is clear that the whole meeting would not be treated as subject to LAP.  However any legal advice provided within that meeting may be subject to LAP.   Alternatively, if the dominant purpose of the meeting is to obtain or provide legal advice, the contents of that meeting will be privileged.

 

PRACTICAL TIPS FOR IN-HOUSE LAWYERS

In-house lawyers often carry out a range of duties, beyond providing legal advice, such as management, business and/or administrative duties. LAP does not automatically attach to emails to/from in-house lawyers; nor does it automatically attach to meetings attended by in-house lawyers.  LAP will not attach to communications, documentation or meetings having a dominant purpose other than the giving or receiving of legal advice.

It is important that company personnel are made aware that by simply copying in-house lawyers into emails, LAP will not automatically attach to these communications or attachments.

To minimise the risk of confusion or disputes over whether or not an email to/from an in-house lawyer is privileged, any legal advice should be sought and provided for in stand-alone emails if possible and not intermingled with other non-legal matters.  Marking emails and other communications and documentation containing such legal advice and request for same “SUBJECT TO LEGAL PRIVILEGE” is prudent.

Likewise, the mere attendance of in-house lawyers at meetings does not mean that LAP will automatically attach to its contents (including any notes, minutes or records of the meeting).  Of course, separating legal and commercial discussions may prove both impractical and burdensome; however if legally sensitive discussions take place, separate notes, minutes or records should be made in respect of same and marked “SUBJECT TO LEGAL PRIVILEGE”.

 

 

This article has been produced for general information purposes only and not advisory purposes.

Tughans’ Dispute Resolution team has extensive experience in Judicial Review applications of this nature.  Moreover we have considerable expertise in commencing and resisting specific discovery applications in the context of various proceedings in the High Court of Justice in Northern Ireland.

If you or your business requires further advice or assistance in navigating any of the above, please contact Emma-Rose Rooney.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.