The ‘Dominant Purpose Test’ Applies to Legal Advice Privilege For Now – But Will it Stay That Way?
28 May 2019
The aviation regulator, the Civil Aviation Authority (“CAA”), has reportedly asked the Court of Appeal for permission to appeal a High Court ruling that the dominant purpose test applies to legal advice privilege. The High Court itself refused permission to appeal, confirming its earlier ruling that if a multi-addressee email is sent internally to non-lawyers for the dominant purpose of seeking commercial views, and an in-house lawyer is copied in – for information or even for legal advice – the email as sent to the non-lawyer is not protected by legal advice privilege unless it (or any response) discloses the nature of the legal advice.
Where it all began
Jet2.com Limited (“Jet2”) brought judicial review proceedings against the CAA for alleged misuse of power for an improper purpose. The CAA had issued a press release criticising Jet2’s refusal to participate in the new alternative dispute resolution scheme designed to improve the handling of compensation claims from passengers; Jet2 claimed the accusations were false and/or misleading. Following the press release, the parties engaged in correspondence, including a letter from the CAA further criticising Jet2 (the “Letter”), which later became the basis of a newspaper article.
Specific disclosure application
As part of the CAA’s evidence, it disclosed a draft of the Letter and internal emails circulating the draft for comment to various employees of the CAA – including non-lawyer executives and an in-house lawyer. It was common ground that further drafts of the Letter existed and were circulated for discussion within the CAA, including to in-house lawyers. Jet2 subsequently sought specific disclosure of (amongst other categories of documents) all drafts of the Letter and all records of any discussions concerning those drafts. The CAA asserted legal advice privilege over these categories.
Legal advice privilege: the dominant purpose test
In December 2018 in Jet2.Com v Civil Aviation Authority  EWHC 3364, Mr Justice Morris confirmed the well-established principle that legal advice privilege applies only to confidential communications between client and lawyer made for the purpose of giving or obtaining legal advice. It does not, he said, apply to documents which are merely “raw materials” not created for that purpose.
Crucially, he held “claims for legal advice privilege are, in principle, subject to a dominant purpose test” – i.e. to be covered by legal advice privilege, a communication or document must have been brought into existence with the dominant purpose of being used to obtain legal advice.
As regards communications (here, emails) sent to multiple recipients, some lawyers and others not, Morris J held that the position was not yet established by authority. He set out the following key principles as to whether an email sent to both legal and non-legal staff will be protected by legal advice privilege:
- if the dominant purpose of the email is to seek advice from the lawyer and others are copied in for information only, then the email is privileged, regardless of who it is sent to;
- on the other hand, if the dominant purpose is to seek commercial views, and the lawyer is copied in, whether for information or even for the purpose of legal advice, then the email, in so far as it is sent to the non-lawyer, is not privileged; and
- further, if sent to the non-lawyer for a commercial comment, but to the lawyer for legal advice then the email is not privileged unless it or the non-lawyer’s response discloses or might disclose the nature of the legal advice sought and given.
Morris J directed the CAA to reconsider the materials in these categories in respect of which it had asserted legal advice privilege in light of his conclusions.
Grounds of appeal
Unsatisfied with Morris J’s decision, the CAA requested permission to appeal on the following three grounds:
- ground 1 – there is no dominant purpose test for legal advice privilege;
- ground 2 – the approach to multi-addressee communications was incorrect; and
- ground 3 – an email and its attachment should be regarded as a single communication and the assessment of privilege in relation to one should not be carried out without reference to the other.
Decision on permission to appeal
In Jet2.com v CAA , EWHC 336 (Admin), permission was refused; Morris J concluded none of the grounds had any reasonable prospects of success.
Dealing with ground 3 first, he held it was “clear that if an email attaches a pre-existing document, the pre-existing document is not covered by privilege merely because the covering email is” and moved swiftly on.
In relation to ground 1, Morris J remained unpersuaded to depart from his earlier finding that both the Court of Appeal in Three Rivers (No 5) and the House of Lords in Three Rivers (No 6) proceeded on the basis that there is a dominant purpose test for legal advice privilege. He was undeterred by the obiter comments of the Court of Appeal in SFO v ENRC that applying the dominant purpose test to legal advice privilege was “unnecessary”. Morris J decided these comments did not “undermine the position”, as the Court of Appeal had not been considering multi-addressee communications.
It followed that (even if it was arguable that multi-addressee communications should be considered as a single communication) ground 2 could not succeed; it is not enough that a purpose, but not the dominant purpose of the communication, was to obtain legal advice.
Down, but not out…
Although the case is significant in confirming that, in principle, claims for legal advice privilege are subject to a dominant purpose test (which had been a topic of debate for some time), it is only a first instance decision of the High Court. Not to be defeated, we understand that the CAA has asked the Court of Appeal for permission to appeal on grounds 1 and 2. It remains to be seen whether or not permission will be granted and, if so, what approach the Court of Appeal will take.
In the meantime, this case is a useful reminder about the risks of sending multi-addressee emails to both lawyers and non-lawyers, particularly on contentious matters which might later be subject to disclosure. As Morris J put it, “the mere involvement of a lawyer is not enough to justify a claim for [legal advice] privilege” – the dominant purpose of a communication or document must be to obtain legal advice (and all of the usual other requirements for legal advice privilege to apply must be met).
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