LEGAL ADVICE PRIVILEGE AND MULTI-ADDRESSEE EMAILS
In The Civil Aviation Authority v Jet2.Com Ltd, R(on the Application of) [2019] EWCA 35 (“CAA v Jet2”), the EWCA applied the dominant purpose test on the question of whether legal advice privilege covered email communications between multiple persons which included amongst them a lawyer.
Background. The Civil Aviation Authority (“CAA”) had issued a press release in December 2017 criticising Jet2’s refusal to participate in an alternative dispute resolution scheme for the resolution of consumer complaints. Jet2 complained to the CAA in a letter on 16 January 2018. The CAA responded to Jet2 in a letter on 1 February 2018. Subsequently, in February 2018, the CAA published the correspondence between CAA and Jet2, and provided the correspondence to the Daily Mail.
Jet2 commenced judicial review proceedings against the CAA, claiming that the CAA had no power to make the publications or alternatively, if it had such power, it exercised the power for unauthorised and improper purposes namely to damage Jet2's trading interests, to punish Jet2 for its decision not to join the ADR Scheme and to put pressure on Jet2 to join the voluntary scheme.
Jet2 applied for disclosure of all drafts of the 1 February 2018 letter and all records of any discussions of those drafts. These included a first draft of the CAA’s response, which was circulated internally on 24 January 2018 under a cover email to CAA’s then Group Director of CAA's Consumer and Markets Group, a Consumer Enforcement Department Manager, and a Principal Legal Adviser.
The CAA objected that the documents sought by Jet2 were covered by legal advice privilege.
EWHC decision. At first instance, the EWHC held that the documents should be disclosed. The EWCA cited the key paragraphs of the EWHC decision ([24] CAA v Jet2):
"99. Against this background and applying the above principles, any draft of the 1 February letter created before the [CAA's] in-house lawyers were consulted or created without any involvement of in-house lawyers is not privileged. That is the case, even if it were known that in due course legal advice would be taken on the draft, unless the dominant purpose of the person creating the draft was to seek legal advice on it.
100. Further drafts of the 1 February letter are not covered by privilege unless specifically drafted by the lawyers or for the dominant purpose of obtaining legal advice. Such drafts do not subsequently attract privilege when they were shown to the in-house lawyers. However if a particular draft was created by the in-house lawyers, or by another specifically for the purpose of seeking or giving legal advice then that draft will be privileged.
101. On the basis that the [CAA's] in-house lawyers were instructed for the purposes of obtaining legal advice, then any communication with those lawyers (to and fro) and including comments and advice on the draft letter (whether on the document itself or in a covering communication) are covered by [LAP]. Moreover any further communication between non-lawyer executives which discloses or might disclose or concerns comments and advice from the in-house lawyers in relation to the draft of the 1 February letter is also covered by legal advice privilege.
102. Where a draft of the 1 February letter (or even discussion about such a draft) was sent in one email to both in-house lawyers and other non-lawyer personnel within the [CAA] (such as the email of 24 January which has already been voluntarily disclosed), then, even assuming that in so far as the email was sent to the in-house lawyer it is privileged, in so far as it is also sent to a non-lawyer, neither the email nor the response of the non-lawyer is protected by [LAP], unless the content of the email, or the response from the non-lawyer, discloses or is likely to disclose the nature and content of the legal advice sought and obtained. If the email to the non-lawyer clearly seeks, and the response provides, commercial views, with no connection to the legal advice, then it is not covered by [LAP]; here the dominant purpose of the email, as sent to the non-lawyer and any enclosed draft was to obtain commercial views. The email of 24 January falls into this category. (I add that if, contrary to the foregoing, a multi-addressee email of this type is in principle covered by privilege, there would be a strong argument that, assuming Ms Lim was copied in for the purpose of seeking legal advice, in any event by disclosing the email of 24 January the [CAA] has, in this case, waived privilege in this class of document)."
In a further hearing, Jet2 argued that by disclosing the 24 January 2018 email, the CAA had waived privilege in all communications concerning the draft 1 February 2018 letter. The EWHC held that the voluntary disclosure of the 24 January 2018 email had resulted in collateral waiver of privilege in respect of all emails and internal discussions in the period from the 16 January 2018 letter up to the publication of the Daily Mail article on 7 February 2018 ([32] – [33] CAA v Jet2).
EWCA decision. On appeal, the EWCA held that the documents sought were not covered by legal advice privilege.
In the course of reviewing the authorities on legal advice privilege, the EWCA casted doubt on the position in the Three Rivers litigation that communications between an employee of a corporation and the corporation's lawyers does not attract LAP unless that particular employee was tasked with seeking and receiving such advice on behalf of the client ([47] – [59] CAA v Jet2). Nonetheless, this issue did not arise on the facts of the present case.
The dominant purpose test. As to the applicable test whether legal advice privilege applies, the EWCA agreed with the EWHC that the applicable test was the dominant purpose test. The EWCA considered that the preponderance of authority supported the inclusion of a dominant purpose criterion, and further identified good grounds for the criterion ([94] – [96] CAA v Jet2):
“i) Although they do have some different characteristics, litigation privilege and LAP are limbs of the same privilege, legal professional privilege. It is uncontroversial that the dominant purpose test, grown out of Grant v Downs, applies to litigation privilege. For the reasons I have given, I am unpersuaded that Eurasian is correct to consider the limbs as fundamentally different with regard to purpose. In my view, there is no compelling rationale for differentiating between limbs of the privilege in this context. The "dominant purpose" test in litigation privilege fixed by Waugh derives from Australian jurisprudence, which has since Grant v Downs treated the purpose test (whatever it might be) as applying to both limbs of the privilege.
ii) Whilst I accept that the position is not uniform, generally the common law in other jurisdictions has incorporated a dominant purpose test in both limbs of legal professional privilege, e.g., in addition to Australia above (considered above: see paragraphs 74-75), Singapore (Skandinaviska Enskilda Banken AB v Asia Pacific Breweries [2007] 2 SLR 367) and Hong Kong (Citic Pacific Limited v Secretary of Justice [2016] 1 HKC 157 at [51]-[62]). This not only suggests that such a test is able to work in practice; but this is a legal area in which there is advantage in the common law adopting similar principles.”
Multi-addressee communications. The EWCA also agreed with the EWHC on the approach to multi-addressee emails. The EWCA set out how the dominant purpose test would be applied to communications involving multiple parties, such as multi-addressee emails and meetings ([100] CAA v Jet2).
“ii) In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. In this exercise, the wide scope of "legal advice" (including the giving of advice in a commercial context through a lawyer's eyes) and the concept of "continuum of communications" must be taken fully into account. If the dominant purpose of the communication is, in substance, to settle the instructions to the lawyer then, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), that communication will be covered by LAP. That will be so even if that communication is sent to the lawyer himself or herself, by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).
iii) The response from the lawyer, if it contains legal advice, will almost certainly be privileged, even if it is copied to more than one addressee. Again, whilst the dominant purpose test applies, given the wide scope of "legal advice" and "continuum of communications", the court will be extremely reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was the provision of legal (rather than non-legal) advice. It is difficult to conceive of many circumstances in which such an exercise could be other than arid and unnecessary.
iv) There was some debate before us – as there is in the textbooks (e.g. in Hollander (see paragraph 91(iii) above)) – as to whether multi-addressee communications should be considered as separate bilateral communications between the sender and each recipient, or whether they should be considered as a whole. My preferred view is that they should be considered as separate communications between the sender and each recipient. LAP essentially attaches to communications. Where the purpose of the sender is simultaneously to obtain from various individuals both legal advice and non-legal advice/input, it is 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 as to whether the communications to the non-lawyers should be privileged. That is not to say, of course, that the form may not in some cases reveal the true purpose of the communication, e.g. it may appear from the form of the email that the dominant purpose of the email is to settle the instructions to the lawyer who has merely been copied in by way of information, or to the contrary that the dominant purpose of sending the email to the non-lawyers is to obtain their substantive (non-lawyer) input in any event.
v) In my view, there is some benefit in taking the approach advocated by Hollander (at paragraph 17-17), namely to consider whether, if the email were sent to the lawyer alone, it would have been privileged. If no, then the question of whether any of the other emails are privileged hardly arises. If yes, then the question arises as to whether any of the emails to the non-lawyers are privileged, because (e.g.) its dominant purpose is to obtain instructions or disseminate legal advice.
vi) However, whether considered as a single communication or separate communications to each recipient, and whilst there may perhaps be "hard cases", I doubt whether in many cases there will be any difference in consequence, if the correct approach to LAP is maintained. Where there is a multi-addressee email seeking both legal advice and non-legal (e.g. commercial) advice or input, if regarded as separate communications, those to and from the lawyer will be privileged: otherwise, they will not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers is that of instructing the lawyer. If it is not for that purpose, in most cases, the email as a whole will clearly not have the dominant purpose of obtaining legal advice.
vii) I agree with Morris J, that, where a communication might realistically disclose legal advice (in the sense of there being a realistic possibility of it disclosing such advice), then that communication will in any event be privileged (see paragraph 27 above). However, in respect of the relevant documents in this case, on the basis of that test, as I understand it, Ms Brooks appears to have considered that none would or might disclose such advice (see paragraph 28 above).
viii) Mr Grodzinski suggested that this approach would cause difficulties in terms of meetings (including records of meetings), attended by non-lawyers and lawyers, at which commercial matters were discussed with the lawyer adding legal advice and input if and when required. The whole of what transpires at such a meeting, he submitted, should be the subject of LAP. However, I disagree; and consider the same principles set out above as applying to documents and other communications are applicable. Legal advice requested and given at such a meeting would, of course, be privileged; but 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 LAP so that none of its contents (including any notes, minutes or record of the meeting) are disclosable. If the dominant purpose of the meeting is to obtain legal advice (or, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), to settle instructions to a lawyer), unless anything is said outside that legal context, the contents of the meeting will be privileged. If the dominant purpose of the discussions is commercial or otherwise non-legal, then the meeting and its contents will not generally be privileged; although any legal advice sought or given within the meeting may be. It is likely that, where not inextricably intermingled, the non-privileged part will be severable (and, on disclosure, redactable) (see paragraph 69 above).”
The EWCA also considered that the EWHC did not err in requiring emails and their attachments to be considered separately ([107] CAA v Jet2):
“It is well-established that a document which is not privileged does not become so simply because it is sent to lawyers, even as part of a request for legal advice (Ventouris v Mountain [1991] 1 WLR 607 at page 616F, and Imerman v Tchenguiz [2009] EWHC 2901 at [14]). In giving disclosure, some separate consideration of substantive documents and attachments therefore has to be undertaken. Whilst an email and attachment can be regarded as a single communication, separate consideration will need to be given to the attachment, given that it will have been received or created by the sender, and therefore may require discrete consideration. I do not find Mr Grodzinski's example of assistance. In that case, it is likely that the email, considered separately, will be privileged as inevitably disclosing legal advice received (in the form of the draft letter).”
Collateral waiver. However, the EWCA held that the CAA’s voluntary disclosure of the 24 January 2018 email did not result in collateral waiver (had the documents been held to be privileged), as the purpose of that disclosure did not involve disclosing any legal advice or anything to do with requesting the provision of legal advice ([119] CAA v Jet2):
“On this issue, I prefer the submissions of Mr Grodzinski. In my view, the purpose and nature of the voluntary disclosure are crucial; and, in this case, I consider Morris J unfortunately failed properly to take these matters into account. As the judge accepted, the disclosure was not in respect of any legal advice; and so it could not be said that there was any risk of the email presenting a partial or selective disclosure of legal advice and thus there was no risk of unfairness that might have been caused by such partial disclosure. The purpose of the email was modest: it was intended to show that (in Mr Moriarty’s words) the language used by Mr Haines in his email of 18 January 2018 was “not reflective of any part of the approach taken by the CAA”; or, perhaps more accurately, that not all of the executives at CAA shared the approach suggested by Mr Haines’ earlier email. It cannot be right that such a modest voluntary disclosure could result in the collateral waiver (and thus the forced disclosure by the CAA) in respect of all the internal communications relating to the drafting of the 1 February 2018 letter, including those that expressly reveal legal advice from the CAA’s lawyers; nor is that what the law (or fairness) requires.”
Significance. This case is noteworthy because it is common practice for an email message, especially internal correspondence, to be copied to multiple addressees or parties, who have different roles and responsibilities, “for information”. It may also be common that some addressees of such messages would forward the correspondence to other parties. To err on the side of caution, parties should never assume that something will be covered by litigation privilege, and think twice before copying multiple parties in communications for sensitive matters.
Tags: Legal advice privilege; multi-party communications
This publication is not intended to be, nor should it be taken as, legal advice; it is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking, actions based on this publication. Chancery Law Corporation is not responsible for, and does not accept any responsibility for, any loss or damage that may arise from any reliance based on this publication.