29 June 2020
Synapse - June 2020 – 5 of 6 Insights
On 28 January 2020, the Court of Appeal handed down an important decision on privilege in Jet2.com v Civil Aviation Authority. This decision confirms that legal advice privilege (LAP), like litigation privilege, is subject to a dominant purpose test. The decision is particularly significant for communications between in-house legal teams and business teams, which includes those concerned with patent matters.
The key takeaway for businesses that find themselves at the early stage of a contentious intellectual property issue – when litigation privilege is not yet available – is to take extra care when communicating internally about the issue, especially when preparing a response to the other side. As Jet2 reminds us, involving in-house legal in those communications will not necessarily be sufficient to attract legal advice privilege.
Here, we look at this decision in further detail and provide some practical steps that businesses can take to protect their communications.
Jet2 is bringing judicial review proceedings against the Civil Aviation Authority (CAA) in relation to the CAA’s publication of a letter and a press release critical of Jet2’s non-participation in a new alternative dispute resolution scheme. Jet2 argued the CAA did not have the power to make the publications and that it did so for an improper purpose.
Jet2 sought specific disclosure of various categories of documents which it considered factored into the decision making behind the CAA's publication. This included draft versions of the CAA's response to a complaint received from Jet2, and all internal CAA communications regarding that response.
The CAA resisted the disclosure of these documents on the basis that its in-house legal advisers had been copied in the emails in which the draft was circulated and subsequently consulted regarding the CAA's response.
At first instance before the High Court, Mr. Justice Morris concluded that claims to LAP are subject to the dominant purpose test. Applying such a test, he ruled that the CAA's purpose in creating the draft letter had been to respond to Jet2 "in a matter of commercial or regulatory contention" and not to seek advice from its internal lawyers.
Accordingly, he ruled that drafts of the letter should be disclosed, unless specifically drafted by the lawyers, but communications with lawyers that included advice on the letter (or emails between executives which might disclose that advice) were covered by LAP.
On appeal, the CAA challenged a number of aspects of the ruling, including the finding that LAP is subject to the dominant purpose test. The decision of the Court of Appeal (CoA) was made up of three key elements:
Ultimately, the CoA agreed with the conclusion reached by the lower court, which was that the documents sought by Jet2 did not attract LAP – despite being circulated to in-house lawyers – because the dominant purpose for which they were created was not to seek legal advice.
Perhaps the most significant point of the CoA's ruling concerns the privilege status of multi-party emails. The CoA has set out the following approach for determining whether emails between multiple recipients will attract legal advice privilege:
The approach set out above will also apply to meetings and calls involving a mix of lawyers and non-lawyers, and records therefore. The key points to note are as follows:
It seems inevitable that the Supreme Court will soon be required to reconsider the ambit of LAP, as this is the second Court of Appeal in less than a two year period – the first being SFO v ENRC in September 2018 – in which the Court of Appeal has expressed its dissatisfaction with the test as it stands, Until then, however, we set out below some practical steps that can be taken to assist in maintaining LAP:
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