Legal advice privilege: where are we now?

IN-DEPTH ANALYSIS

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.

Background

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.

Appeal proceedings

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:

It confirms that LAP, like litigation privilege, is subject to a dominant purpose test.
It lays out the approach, applying the dominant purpose test, to determining the privilege status of communications sent simultaneously to a number of addressees, who are a mix of lawyers and non-lawyers, for their advice/comments.
It confirms that in assessing claims to LAP over communications, emails and attachments should be considered separately.

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.

LAP and multi-addressee communications

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:

If the dominant purpose is, in substance, to seek advice or give instructions to a lawyer, then that communication will be covered by LAP. That will be so even if the communication contains other information not relating to the advice.
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).
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.
Where a communication might realistically disclose legal advice, then that communication will in any event be privileged.

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:

The mere presence of a lawyer is insufficient to render the whole meeting/call the subject of LAP so that none of its contents (including any notes, minutes or record of the meeting) would be disclosable.
Legal advice requested and given at a meeting or on a call would, however, be privileged.
If the dominant purpose of the meeting is to obtain legal advice, unless anything is said outside that legal context, the entire contents of the meeting would likely be privileged.
The discussion of some legal matters in multi-party discussions will not necessarily trigger the protection of LAP where those legal discussions are secondary to commercial matters.
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, and should be redacted from any otherwise disclosable documents.

Practical steps

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:

Mark documents clearly. Ask teams within the business to mark draft documents clearly "privileged and confidential – created for the dominant purpose of seeking legal advice".
Make sure a legal team member is involved in the first draft of team prepared documents on contentious matters.
Advise teams to send separate emails to in-house legal for legal advice and commercial teams for commercial advice. The mere inclusion of a member of its legal team in a multi-addressee email will not render the contents of the email privileged.
Think carefully about taking notes of meetings covering predominantly non-legal matters.
In-house discussions and communications with technical experts and scientists about patent rights should be led by a patent attorney or lawyer only in the context of giving legal advice.
In a patent context, note that EU patent attorney communications have the same rights of privilege protection as lawyers and so the same considerations apply.
Following the Brexit Transitional Period, UK qualified lawyers will no longer be afforded EU LPP (which concerns communications relating to a EU Commission administrative or enforcement procedure). Where applicable, advice should be sought from EU qualified lawyers in relation to EU Commission matters and the relevant national LLP rules, which vary across the EU.