Practice and procedure – Legal advice privilege – Dominant purpose – Appellant appealing against ruling that documents ordered to be disclosed to respondent airline not attracting legal advice privilege – Whether relevant document or communication required to be created or sent for dominant purpose of obtaining legal advice – Appeal dismissed
The respondent airline brought judicial review proceedings against the appellant UK aviation industry regulator, challenging the lawfulness of the appellant’s decisions to issue a press release and subsequently publish correspondence between it and the respondent, in February 2018, criticising the respondent’s refusal to participate in an alternative dispute resolution scheme.
The respondent made an application in the judicial review claim for disclosure of several categories of document, including all drafts of the 1 February 2018 letter and all records of any discussions of those drafts. The appellant claimed legal advice privilege.
The High Court was asked to determine whether, for a communication to fall within the scope of legal advice privilege, it had to have the dominant purpose of seeking or giving legal advice, and whether emails sent to multiple addressees, including lawyers and non-lawyers, had been brought into existence for that dominant purpose.
The judge concluded that the dominant purpose test applied and that if the dominant purpose of a multi-addressee communication was to obtain legal advice from an in-house lawyer, it would be privileged, even if it also sought the commercial views of others. However, if its dominant purpose was to seek commercial views, it would not be privileged, even if it was sent contemporaneously to a lawyer for the purpose of obtaining legal advice. Accordingly, versions of the email created by the appellant before consultation with its in-house lawyers were not privileged: [2018] EWHC 3364 (Admin). The judge subsequently held that, even if documents had been found to be privileged, privilege had been waived by the appellant’s voluntary disclosure of one email: [2019] EWHC 336 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) Consideration of legal advice privilege had to be undertaken on the basis of particular documents, and not simply the brief or role of the relevant lawyer. However, where that brief or role was as a lawyer, because “legal advice” included advice on the application of the law and the consideration of particular circumstances from a legal point of view, most communications to and from the client were likely to be sent in a legal context and were likely to be privileged. Where the usual brief or role was not as a lawyer, a particular document might still fall within the scope of the privilege if it was specifically in a legal context.
In considering whether a document was covered by legal advice privilege, the breadth of the concepts of legal advice and continuum of communications had to be taken into account. Although context was important, the court was unlikely to be persuaded by fine arguments as to whether a particular document or communication fell outside legal advice. If legal and non-legal contexts were so intermingled that severance was impossible, the court would look at the document as a whole. Where legal and non-legal contexts could be identified, the document or communication could be severed and the parts covered by privilege would be non-disclosable (and redactable), and the rest would be disclosable. A communication to a lawyer might be covered by the privilege even if express legal advice was not sought: it was open to a client to keep his lawyer acquainted with the circumstances of a matter on the basis that the lawyer would provide legal advice as and when he considered it appropriate.
(2) The judge had been right to proceed on the basis that, for legal advice privilege to apply to a particular communication or document, the proponent of the privilege had to show that the dominant purpose was to obtain or give legal advice. Although as originally formulated by the courts, the evidence which fell within the scope of legal professional privilege covered only confidential communications between a lawyer and his client, or a lawyer or client and a third party, for the purposes of litigation (litigation privilege), it was extended to all confidential communications between a lawyer and his client for the purposes of giving or obtaining legal advice, whether or not there were existing or contemplated proceedings (legal advice privilege). Although they had some different characteristics, litigation privilege and legal advice privilege were limbs of the same privilege and were not fundamentally different regarding purpose. There was no good reason not to follow the preponderance of authority which supported the inclusion of a dominant purpose criterion into legal advice privilege. There were no good grounds for not following the decisions of the Court of Appeal in previous cases which, though not binding, were of considerable persuasive weight: Three Rivers District Council v Bank of England (No 5) [2002] EWHC 2730 (Comm) and Three Rivers District Council v Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610 followed. Wheeler v Le Marchant (1881) 17 Ch D 675, Waugh v British Railways Board [1980] AC 521 and Serious Fraud Office v Eurasian Natural Resource Corporation Ltd [2018] EWCA Civ 2006; [2019] 1 WLR 791 considered.
(3) Multi-addressee emails should be considered as separate communications between the sender and each recipient. Where the purpose of the sender was simultaneously to obtain from various individuals both legal advice and non-legal advice/input, it was 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 to whether the communications to the non-lawyers should be privileged. Where there was a multi-addressee email seeking both legal advice and non-legal (eg commercial) advice or input, if regarded as separate communications, those to and from the lawyer would be privileged: otherwise, they would not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers was that of instructing the lawyer. If it was not, in most cases, the email as a whole would not have the dominant purpose of obtaining legal advice.
(4) Had the documents been protected by privilege, the court would have concluded that the voluntary disclosure of one email had not waived privilege in the other documents.
Sam Grodzinski QC, Tamara Oppenheimer and Anna Medvinskaia (instructed by Mayer Brown International LLP) appeared for the appellant; Charles Béar QC and Nicolas Damnjanovic (instructed by Norton Rose Fulbright LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Jet2.Com Ltd) v Civil Aviation Authority
