In Civil Aviation Authority v R (on the application of Jet2 Ltd) 2020 EWCA Civ 35, the English Court of Appeal provided clear guidance on the position of Legal Advice Privilege and multiparty emails.
Further, it confirmed that in order for a document to attract Legal Advice Privilege (broadly the equivalent of attorney-client privilege in the US), the party claiming privilege must show that the communication or document was created with the dominant purpose of giving or receiving legal advice.
Facts
- The UK airline Jet2 had decided not to participate in an alternative dispute resolution scheme set up by the UK Civil Aviation Authority (CAA). The CAA criticized Jet2's decision not to join the scheme in a press release promoting the scheme.
- Jet2 wrote to the CAA objecting to the comments made in its press release.
- In drafting a response to Jet2's letter, the CEO of the CAA requested "attack dogs please." A draft letter was later circulated by the CAA's Head of Consumer Enforcement to various individuals, including the CAA's Principal Legal Advisor, commenting that "I wouldn't quite call it 'attack dog' style. More of a cranky alpaca."
- The response that was eventually sent to Jet2 was provided by the CAA to the Daily Mail.
- Jet2 brought judicial review proceedings challenging the CAA's decision to publish the press release and the CAA's decision to provide its correspondence to the Daily Mail.
- In those proceedings, Jet2 sought disclosure of the various drafts of the CAA's letter and all CAA records of any discussions concerning those drafts. The CAA claimed the documents/communications attracted Legal Advice Privilege.
Dominant Purpose Test
Legal Advice Privilege attaches to communications between a lawyer and client for the purpose of giving or receiving legal advice. The Court considered whether it was necessary for the CAA to establish that giving or receiving legal advice was the "dominant purpose" of the documents/communications.
Several previous authorities have suggested that it was necessary for the legal advice to be the dominant purpose of the communication, but the more recent judgment of Serious Fraud Office v Eurasian Natural Resources Corporation Limited [2018] EWCA Civ 2006 suggested that the requirement for a "dominant purpose" was tautologous (obiter). In Jet2, the Court rejected this approach and confirmed that dominant purpose was a requirement:
"For [Legal Advice Privilege] to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice."
Multiparty Emails
Most of the documents which were the subject of the dispute were emails sent to a number of addressees, including lawyers and non-lawyers.
In respect of multiparty emails, the Court held that:
- The dominant purpose test applies to each communication.
- When trying to identify the purpose of a communication, the concept of "continuum of communications" must be considered. In other words, is the communication part of a series of communications sent for the dominant purpose of instructing a lawyer? Alternatively, if the dominant purpose is to obtain the commercial views of the non-lawyers on the email chain, it will not be privileged.
- A response from the lawyer that contains legal advice will almost certainly be privileged (even when the advice is copied to more than one addressee).
- Multiparty emails should be considered as separate communications between the sender and each recipient.
- It should be considered whether the email would be privileged if sent to the lawyer alone. If it would not be, then the email is not privileged. If it would be, then the question is whether the emails to the non-lawyer addressees are privileged because the dominant purpose is the giving or receiving of legal advice.
- If the email discloses legal advice, then this part of the email is privileged.
Applying the Approach to Meetings
The Court held that the principles set out above also apply to meetings where a lawyer is present. Legal advice requested and given at such meetings would, of course, be privileged. However, the mere presence of a lawyer, perhaps only on the off chance that his or her legal input might be required, is insufficient to render the whole meeting the subject of Legal Advice Privilege.
If the dominant purpose of the meeting is to obtain legal advice, the contents of the meeting will be privileged. If the dominant purpose of the discussions is commercial, then the meeting will not generally be privileged (although any legal advice sought or given within the meeting may be).
Email Attachments
The Court confirmed that documents do not become privileged simply because they have been sent to lawyers. Emails and each of their attachments must be given separate consideration.
Comparison to Other Jurisdictions
The judgment aligns privilege analysis for multi-purpose communications closely with that used by US courts for the attorney-client privilege. US courts apply a functionally similar "primary" or "predominant" purpose test to determine whether mixed purpose communications, such as multi-party emails, qualify for privilege protection. Like the Court of Appeal's "dominant purpose" test, US courts recognize privilege protection where the privilege holder demonstrates that the provision of confidential legal advice was the primary purpose for the communication. See, e.g., Apple, Inc. v. Samsung Elec. Co., Ltd., 306 F.R.D. 234, 240–41, 240 n.38 (N.D. Cal. Apr. 3, 2015) (applying the "primary purpose" test and holding that privilege does not attach to "any communication that would have been made because of a business purpose"); Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, 892 F.3d 1264, 1267–1268 (D.C. Cir. 2018) (applying a slightly expanded "primary purpose" test and finding a communication with in-house counsel for both legal and business advice was privileged because "one of the significant purposes of the communication" was legal).
Courts of the EU, by contrast, apply a more stringent standard when considering privilege for mixed use or multi-party communications. See, e.g., Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission, Cases T-125/03 and T-253/03, judgment of 17 September 2007. (European Court of First Instance) (internal company documents "may none the less be covered by [Legal Professional Privilege], provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence.") (emphasis added).
Conclusions
Large multiparty email chains are commonplace in nearly all commercial organizations. For many, it would be impractical to suggest that requesting and providing legal advice could take place outside such communications. In-house lawyers can take comfort that the judgment is clear that the provision of legal advice on such chains is almost certainly privileged. The judgment is an opportunity for in-house lawyers to reprise what is no doubt a familiar refrain to their internal client: "Copying me in will not make it privileged." A chance perhaps to unleash their own cranky alpaca.
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