In-house lawyers and general counsel take note: will your communications be privileged?

3 February 2020

A decision from the Court of Appeal on 28 January 2020 concerning legal advice privilege (The Civil Aviation Authority v R (on the application of Jet2.com Limited) [2020] EWCA Civ 35) has important ramifications for in-house lawyers, general counsel and those who seek advice from them.
 

The background to the case can be briefly summarised. In judicial review proceedings initiated by Jet2.com Limited (“Jet2”) against a decision of the Civil Aviation Authority (“CAA”), Jet2 requested disclosure of certain documents held by the CAA. Jet2 wished to see all drafts of a letter which the CAA had sent to Jet2 and all records of any discussions concerning those drafts. The CAA resisted disclosure on the basis that the documents were covered by legal advice privilege. In-house lawyers at the CAA had been involved in discussions about the letter and had given advice in relation to the drafts. However, some of the documents falling into this category were internal emails sent to multiple recipients within the CAA, including in-house lawyers and others in non-legal roles, which did not necessarily solely concern legal advice.

Following an unfavourable decision in the High Court, the CAA appealed to the Court of Appeal, which concluded that, in order for a document or communication to be covered by legal advice privilege, the dominant purpose in sending or creating it must be to obtain or give legal advice (in addition to the other established requirements for legal advice privilege). In the absence of this dominant purpose, the document will only be privileged if it is nevertheless likely to disclose the nature and content of the legal advice sought or given.

The Court of Appeal’s ruling is notable for a number of reasons. It has long been a matter of debate whether a dominant purpose test applies to legal advice privilege (in contrast to litigation privilege, where it is firmly established that a dominant purpose test does apply). The question briefly arose in the recent decision of Director of the Serious Fraud Office v ENRC [2018] EWCA Civ 2006 (see our blog on this case here), with the court noting obiter that it was hard to see why such a test was necessary. The Court of Appeal in Jet2, however, did not share this view and concluded that the balance of authority was in favour of the dominant purpose test.

Where a company seeks the advice of external lawyers, the test is unlikely to cause any real difficulty. The dominant purpose of communications or documents in this context will almost certainly be seeking or obtaining legal advice; why else would external lawyers be engaged? However,  the test will have an impact on  in-house lawyers, as in their role the boundaries between legal advice and commercial advice can often become blurred and it is not unusual for their input to be sought on a quasi-legal, or even purely commercial, basis. In addition, emails sent to a list of recipients including lawyers (particularly in-house lawyers) and non-lawyers are common in many organisations, and it is here that the case has particularly important ramifications. Consider the scenario below as an example:

The communications director of a large company is preparing a press release to announce the findings of an internal investigation into suspected fraud within the company. They copy the proposed text into an email and send it to an in-house lawyer and the finance director. The email says, “Please see below my proposed wording for the press release. Grateful for any comments or suggested amendments.”

The lawyer is undoubtedly being asked to comment on the draft from a legal perspective, and if it was sent only to them it would be privileged. However, unless the dominant purpose of this email is to obtain that legal advice, the email will not be privileged. If, as is far more likely, the email has a dual purpose of obtaining commercial/non-legal advice from the finance director and legal advice from the lawyer, and these purposes are of equal importance, the email will not be privileged (although the response from the lawyer may be).

Jet2 does not necessarily represent a change in the law per se, but it does remove some of the ambiguity created by earlier authorities which might have allowed for a more favourable interpretation of the limits of legal advice privilege. In-house lawyers should take note of this decision and consider whether their internal procedures offer sufficient protection to the company’s privilege. At the very least, in-house lawyers should ensure that their colleagues are aware that simply ‘copying Legal’ into an email does not guarantee that the communication will be privileged. To avoid ambiguity, and to take a cautious approach, any legal advice should be sought and provided in a standalone email between the lawyer and the individual(s) within the company seeking the advice. It would also be advisable to mark the email ‘legally privileged’, preferably in the subject heading. This will ensure that, if a disclosure request is made in some future proceedings, documents over which a claim to privilege might be made will be easily identifiable.

Further Information

For further information on the issues raised in this blog post, please contact a member of our criminal team.

 

About the authors

Will Hayes is a barrister in the Criminal Litigation team and represents individuals and corporate clients in a range of criminal cases. He has represented clients in cases covering the full spectrum of general crime, cases with an international dimension and represents clients defending extradition requests and challenging Interpol red notices. Will has a particular interest in legal professional privilege (LPP) and has developed a comprehensive understanding of the law and its practical application.

Vivien Cochrane is a Senior Associate in the Criminal Litigation team. Her practice focuses on serious and complex crime and she has experience of representing clients across the full spectrum of criminal matters. She has a very good understanding of the strategies involved in advising clients from the outset of a criminal investigation and the tactics and complexities of representing clients at trial.

 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Let us take it from here.

+44 (0)20 7814 1200

enquiries@kingsleynapley.co.uk

Skip to content Home About Us Insights Services Contact Accessibility