The Court of Appeal, in Civil Aviation Authority v. R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35, has provided clarity on aspects of legal advice privilege and email chains with multiple addressees.
First, it was found that the party claiming legal privilege has to show that the dominant purpose of the communication in question is to obtain or give legal advice.
Additionally, the court clarified that, where an email has been sent to multiple addressees (some of whom are lawyers and others that are not), the dominant purpose test still applies. Essentially, if the dominant purpose of an email is to obtain legal advice, it is privileged. If the dominant purpose of the email is to obtain the commercial views of non-lawyer addressee(s), it will not be privileged, even if a subsidiary purpose is to receive legal advice from the lawyer addressee(s).
The decision also confirmed that this dominant purpose approach should be applied to discussions at meetings (attended by lawyers and non-lawyers), where the discussion includes both legal and commercial matters. The mere presence of a lawyer in a meeting (perhaps on the off chance that their input may be required) does not automatically give rise to legal advice privilege, unless obtaining legal advice was the dominant purpose. If necessary, records of such meetings would have to be redacted, so that only the record of legal advice would be privileged from disclosure.
Finally, it was found that, where an email has an attachment, these are to be considered separately. Thus, where an email is legally privileged, its attachment will not automatically have such protection.
Prior to this decision, there was some uncertainty, following a previous House of Lords case, around what approach should be taken when assessing whether legal advice privilege applies to multi-recipient communications. The application of the dominant purpose test here is in line with other common law jurisdictions and is extremely helpful guidance, notably for in-house lawyers. A word of caution, however – this is a Court of Appeal decision and it may take a Supreme Court decision, at some time in the future, to confirm what most people consider the correct approach.
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