Legal advice privilege subject to “dominant purpose” test – how to deal with multi-party email communications
25 February 2020
The dominant purpose of a communication must be to obtain, or give, legal advice for legal advice privilege to apply. The Court of Appeal considers how, in the light of this, to analyse privilege and internal multi-party email communications between in-house lawyers and non-lawyer employees. Three Rivers No. 5 is criticised but acknowledged to be binding: The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of)  EWCA Civ 35.
Jet2 brought judicial review proceedings challenging the CAA’s decision to publish a press release critical of Jet2 and some related correspondence. The basis of the challenge was that the CAA had no power to publish the materials or, if it had a power, it had exercised it for an improper purpose. As part of these proceedings Jet2 made an application for specific disclosure of all drafts of, and discussions concerning, a key letter from the CAA to Jet2 in which the CAA responded to Jet2’s complaints about the press release. The CAA claimed these documents were privileged on the basis that its in-house lawyers were “involved in those discussions and gave advice in relation to the various drafts, the content of which was privileged”. The documents were CAA internal multi-party emails which included in-house lawyers and non-lawyer employees as addressees. Jet2 challenged the privilege claim on the basis that the communications were not for the dominant purpose of legal advice in a relevant legal context.
Legal advice privilege – the basics
Legal advice privilege attaches to communications made in confidence between lawyers and their clients for the purpose of giving or obtaining legal advice in a relevant legal context.
The court summarised the starting point as follows:
- Legal advice privilege has to be considered on a document-by-document basis and not by reference to the general retainer of the lawyer.
- Where the lawyer is acting as a lawyer (as opposed to as a commercial adviser) most communications to and from the client are likely to be sent in a legal context and are likely to be privileged.
- Where the lawyer’s role is to act as a commercial adviser, it is still possible for a particular document to fall within the scope of legal advice privilege.
- When thinking about whether a document is covered by legal advice privilege, it is important to remember that legal advice is a wide concept in its own right and, separately, extends to the so-called continuum of communications (ie the back and forth between lawyer and client).
- Although context is important, the court is unlikely to be persuaded by fine arguments as to whether a particular communication falls outside legal advice, particularly as the legal and non-legal might be so intermingled that distinguishing the two is for practical purposes impossible.
- Where there is no intermingling, and the legal and non-legal can be identified, then the document or communication can be severed: the parts covered by legal advice privilege will not be disclosable (and so can be redacted), and the rest will be disclosable.
- A communication to a lawyer may be covered by the privilege even if express legal advice is not sought: it is open to a client to keep its lawyer up to date with a matter on the basis that the lawyer will provide legal advice as and when appropriate.
- Legal advice, privileged when given, can be disseminated internally and (in certain circumstances) externally for the purposes of being considered and applied without the loss of privilege: here, English law has taken a flexible and realistic approach, reflecting the realities of modern corporate and commercial arrangements.
But there is a dominant purpose test
Following some dense analysis of the authorities going back to the 19th century and of the leading textbooks, while accepting that the jurisprudence was not straightforward, the court held that 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. It did so despite the Court of Appeal’s non-binding criticism of this proposition in ENRC v SFO, where it said that the additional qualification of looking at the dominant purpose was tautologous.
English law is now in line with the law in Australia, Hong Kong and Singapore on this point.
How to analyse multi-party email communications
With all the above in mind, the court proposed the following approach to multi-party email communications between, in this case, in-house lawyers (acting as lawyers) and non-lawyer employees about the key draft letter:
- Although the general role of the lawyer may be a useful starting point, the test focuses on the individual communication.
- If the dominant purpose of a communication from a client is, in substance, to agree instructions to the lawyer then that communication will be covered by legal advice privilege. That will be so even if that communication is sent to the lawyer, 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.
- 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.
- On balance, multi-addressee communications should be considered as separate bilateral communications between the sender and each recipient rather than as a whole. That said, who is an addressee of an email may reveal its dominant purpose.
- It helps to consider first, whether, if the email were sent to the lawyer alone, it would have been privileged. If not, then the question of whether any of the other emails are privileged hardly arises. If so, the question then arises as to whether any of the emails to the non-lawyers are privileged, because, for example, their dominant purpose is to obtain instructions or disseminate legal advice.
- Where a communication might realistically disclose the nature and content of the legal advice, then that communication will be privileged.
- The above approach applies to meetings. Legal advice requested and given at a meeting will be privileged; but the mere presence of a lawyer, perhaps only on the off-chance that legal input might be required, is insufficient to render the whole meeting the subject of legal advice privilege.
Emails and attachments separate
The CAA tried to argue that an attachment to an email cannot be regarded separately to the email. This received short shrift: while the email and attachment may be regarded as a single communication, the attachment will have a separate, standalone, existence and so will also have to be considered on that basis.
Modest disclosure not a waiver
An email was voluntarily disclosed by the CAA as an exhibit to a witness statement in order to show that not all of the executives of the CAA shared the approach suggested by one executive in an earlier email. Jet2 said this amounted to a collateral waiver of all the documents sought. The court did not accept, obiter and on the facts, that such a “modest voluntary disclosure” could amount to a collateral waiver in the way that Jet2 claimed.
Three Rivers concept of client criticised (again) but binding
Like the Court of Appeal in ENRC v SFO, this court doubted the analysis and conclusion in Three Rivers No. 5 that communications between an employee of a company and the company’s lawyers could not attract legal advice privilege unless that employee was tasked with seeking and receiving that advice on behalf of the client. The court added that, for no obvious reason, the law in relation to legal advice privilege, set out in Three Rivers No. 5, for the collection of information to instruct lawyers is out of line with the law about the dissemination of advice from lawyers, once received. Nonetheless, this court accepted it was bound by that decision.
Whether there is or is not a dominant purpose test for legal advice privilege under English law has long been debated. Now we know the answer: there is. It remains to be seen how much difference in practice this will make (merely copying a lawyer, or having them attend a meeting, has never, without more, been enough to make something privileged). We do now have a detailed approach for dealing with multi-party lawyer/non-lawyer communications.
The essence of the court’s test is this:
- is a particular communication for the dominant purpose of obtaining or giving legal advice in a relevant legal context; or, if not,
- does the communication realistically disclose the nature and content of the legal advice?
In the court’s mind legal advice privilege is what it says: a privilege. You need to “take proper care” of it. In practice, especially where in-house lawyers are concerned, this can be really difficult when everyone communicates both instantly and electronically. In an ideal world people will think about, and maybe stress, the dominant purpose of their communications and consider whether, alternatively, separate communications to and from in-house lawyers are more appropriate (with the email subsequently being forwarded on a confidential basis as necessary).
As an aside, this dispute was primarily about 11 documents concerning a single letter. It has taken two first instance decisions and one of the Court of Appeal to resolve the matter. Quite how privilege reviews are supposed to be carried out economically if the analysis is this granular and may be subject to this level of scrutiny is unclear.
Finally, Three Rivers No. 5 is ripe for being overturned if only the subject matter would get to the Supreme Court.
Post script: In a decision which shows how far legal advice privilege can extend, the Court of Appeal held that a client's instructions to its solicitors about monies to be held in escrow were privileged even though the solicitors had confirmed to a counterparty the nature of these instructions. The instructions were given in the legal context of the solicitors acting on the underlying deal and were part of the “continuum of communications” between lawyer and client. The solicitors had no express or implied authority to waive privilege and had not done so: Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd & Ashurst LLP  EWCA Civ 11, 21 January 2020
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