Court of Appeal confirms dominant purpose test for legal advice privilege
The Court of Appeal has ruled that communications will only be covered by legal advice privilege where their dominant purpose is to obtain or give legal advice. It also gave helpful guidance on how legal advice privilege applies to emails circulated between both lawyers and non-lawyers for their advice and comments.
Scope of privilege
There are two types of privilege – litigation privilege and legal advice privilege. A privileged communication does not have to be disclosed in subsequent litigation.
Litigation privilege applies to confidential communications produced for the dominant purpose of existing or reasonably contemplated litigation.
Legal advice privilege applies to confidential communications between lawyer and client, where the purpose of the communication is to obtain or give legal advice. Difficulties can arise where in-house lawyers are asked to provide both legal and commercial advice to their in-house clients, or where they are added to an email chain in an attempt to make the communications privileged. Until now it has been unclear whether the dominant purpose of the communication has to be to obtain or give legal advice.
Court of Appeal confirms dominant purpose test
In The Civil Aviation Authority v Jet2.com Limited, the Court of Appeal ruled that for legal advice privilege to apply, obtaining or giving legal advice has to be the dominant purpose of the communication.
Applying legal advice privilege to multi-party emails
The Court of Appeal went on to give guidance on how legal advice privilege applies where a single internal company email is sent to both in-house lawyers and management/non-lawyers for their advice and comments. It said that:
- The dominant purpose test applies. If the dominant purpose of an email is to seek legal advice from an in-house lawyer, it will be privileged even if at the same time it seeks the commercial views of non-lawyers. Conversely, if the dominant purpose is to seek the commercial views of non-lawyers, it will not be privileged even if a subsidiary purpose is to obtain legal advice from the in-house lawyer
- When considering the purpose of a communication, courts must take the wide scope of legal advice into account. This includes giving advice in a commercial context through a lawyer’s eyes and the concept of a “continuum of communications” i.e. whether an individual communication is part of a series of communications which had the dominant purpose of instructing the lawyer
- A lawyer’s response containing legal advice will almost certainly be privileged, even if it is copied to more than one addressee
- Multi-addressee emails should be considered as separate communications, although this is unlikely to make any difference when assessing whether legal advice privilege applies
- Where a communication might disclose legal advice (in the sense of there being a realistic possibility of it doing so) it will be privileged, even if the dominant purpose test is not met
Email and attachments
The Court of Appeal also confirmed that it is necessary to assess emails and attachments separately, as they will not necessarily both be privileged.
Records of meetings
The Court of Appeal went on to say that the same principles apply to records of meetings attended by both lawyers and non-lawyers. Legal advice requested and given at the meeting is privileged. However, the mere presence of a lawyer at the meeting on the off-chance their legal input may be required does not make the whole meeting covered by legal advice privilege. If the dominant purpose of the discussions is to obtain legal advice, the contents of the meeting will be privileged. If the dominant purpose is commercial or otherwise non-legal, then the meeting and its contents will not generally be privileged – although any advice sought and given in the meeting may be.
The Court of Appeal’s clarification that there is a dominant purpose test for legal advice privilege makes it more difficult for parties to withhold documents in subsequent litigation. Internal email chains involving an in-house lawyer will be disclosable if they do not satisfy the dominant purpose test. Nevertheless, the Court recognised that legal advice is wide in scope.
The Court’s guidance on multi-addressee emails is a useful reminder that copying a lawyer in on a communication does not make it privileged. The dominant purpose of the communication must be to obtain legal advice or it must contain details of the legal advice provided. Similarly, the mere presence of a lawyer at a meeting does not make the contents of the meeting privileged.
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