Legal advice privilege: Court of Appeal says there is a dominant purpose test

On 28 January 2020 the England and Wales Court of Appeal handed down its judgment in The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of) [2020] EWCA Civ 35. The court held that there is a dominant purpose test for legal advice privilege.

As a consequence, emails (or other communications) sent to lawyer and non-lawyer recipients by the person instructing the lawyer are less likely to be privileged than previous cases suggested.

Dominant purpose test

The dominant purpose test is familiar from litigation privilege: where a communication has two or more equal purposes, the dominant purpose test will not be satisfied, and the document will not be privileged.

Before this Court of Appeal decision, it was clear that communications would not be privileged simply because a lawyer is copied or because the document was marked ‘privileged’, but equally well established that legal advice privilege covered a broader range of communications than formal requests for legal advice and the lawyer’s response. These propositions stand. Indeed, the Court of Appeal underlined the breadth of lawyer/client communications which could be covered by legal advice privilege.

However, by applying a dominant purpose test to communications sent as part of lawyer/client communications, the court (and parties giving disclosure in litigation or investigations) will now consider whether seeking legal advice was the dominant purpose of the communication, or whether it was merely one of several purposes.

In cases involving claims to litigation privilege, there has been a trend for strict application of the dominant purpose test. We would expect the courts to take an equally strict approach in the context of legal advice privilege.

Emails to multiple recipients

As the Court of Appeal in SFO v ENRC noted, asking whether an email in which you ask your lawyer for legal advice is sent for the dominant purpose of seeking legal advice will often add nothing to the analysis.

However, asking the question is more significant in the circumstances considered by the Court of Appeal in this case, ie where an email is sent to both lawyers and non-lawyers. If the request for advice or input is also canvassing non-legal views, and not for the dominant purpose of instructing the lawyer, it will not be privileged.

Fallback position?

Where communications do not meet the dominant purpose test for legal advice, they may nevertheless be privileged if they disclose or might realistically disclose the nature and content of the legal advice being sought or given.

Practical takeaways

To ensure that confidential communications with legal advisers are protected by legal advice privilege, clients should consider:

• Making clear in emails to lawyers and non-lawyers that the sender is seeking legal advice and that the non-lawyers have been copied for that purpose only; or
• Sending emails to lawyers only, and leaving the lawyers to forward the communication to others who require the information on a confidential basis.