Introduction

The case of The Civil Aviation Authority v. Jet2.Com Ltd, R. (on the Application of) ([2020] EWCA Civ 35) adjudicated by the England and Wales Court of Appeal (Civil Division) on January 28, 2020, delves deeply into the nuances of Legal Advice Privilege (LAP). The dispute arose when Jet2.Com Ltd ("Jet2"), an airline operating within the United Kingdom, challenged the Civil Aviation Authority's (CAA) decisions to publish correspondence and issue a press release criticizing Jet2's refusal to participate in an Alternative Dispute Resolution (ADR) scheme.

This commentary explores the courtroom deliberations surrounding the application of LAP, particularly focusing on whether communications must have a dominant purpose of seeking or giving legal advice to qualify for privilege, and the implications of multi-addressee communications involving both lawyers and non-lawyers.

Summary of the Judgment

The CAA issued a press release and published correspondence criticizing Jet2 for not participating in the ADR scheme, which Jet2 contested as ultra vires and improperly intended to damage its trading interests. In the ensuing judicial review, a key issue was whether certain internal CAA communications were protected under LAP.

The initial court held that these communications were not privileged, a decision the CAA appealed. The Court of Appeal upheld the lower court’s decision, affirming that for a communication to fall within LAP, its dominant purpose must be to seek or provide legal advice. Consequently, multi-addressee emails sent to both in-house lawyers and non-lawyers for commercial purposes were deemed disclosable unless the dominant purpose was legal advice.

Ultimately, the appeal was dismissed, reinforcing the application of the dominant purpose test in determining the scope of LAP, especially in complex commercial communications involving multiple parties.

Analysis

Precedents Cited

The judgment extensively referenced key case law to elucidate the principles governing LAP:

• Wheeler v Le Marchant (1881): Established early considerations of LAP.
• Three Rivers Council v The Governor and Company of the Bank of England (No 5 & No 6): Fundamental in defining the dominant purpose test for LAP.
• Greenough v Gaskell (1833): Recognized LAP beyond litigative contexts.
• Balabel v Air India (1988): Expanded LAP to non-litigious business contexts.
• Additional authorities from Australian, Singaporean, and Hong Kong jurisprudence were also considered to support the dominant purpose framework.

Legal Reasoning

The court emphasized that LAP is not absolute and must be assessed based on the 'dominant purpose' of communications. The dominant purpose test requires that the primary reason for a document or communication is to seek or provide legal advice. This ensures that LAP is applied only when necessary to protect the confidentiality of legal consultations, thereby maintaining the integrity of the legal process.

In multi-addressee communications, if the dominant purpose is legal advice, the entire communication can be privileged, even if non-lawyers are included. However, if commercial objectives predominate, the communication loses its privileged status, despite the presence of lawyers.

The judgment clarified that differentiating between LAP and litigation privilege is unnecessary within the context of the dominant purpose test, as both serve the overarching principle of safeguarding legal communications.

Impact

This decision has significant implications for future cases involving LAP, particularly in complex commercial settings where communications often involve multiple stakeholders.

• Affirms the dominant purpose test as a critical determinant for LAP applicability.
• Provides clarity on handling multi-addressee communications, ensuring that privilege is not inadvertently waived.
• Influences corporate governance and internal communication protocols, emphasizing the need to clearly delineate legal advice communications.
• Aligns English law with other common law jurisdictions that recognize the dominant purpose test, promoting consistency in legal standards.

Complex Concepts Simplified

Legal Advice Privilege (LAP)

LAP is a legal principle that protects confidential communications between lawyers and their clients from being disclosed in legal proceedings. This ensures that clients can freely seek and obtain legal advice without fear that such communications will be exposed to adversaries.

Dominant Purpose Test

The dominant purpose test assesses whether the primary reason for a communication or document is to seek or provide legal advice. If so, the communication is privileged under LAP. This test prevents the protection from being applied to communications primarily intended for non-legal purposes.

Multi-Addressee Communications

These are communications sent to multiple recipients, including both legal and non-legal personnel. Determining LAP in such contexts revolves around identifying whether the main intent of the communication is legal advice.

Collateral Waiver of Privilege

This occurs when a privileged document is voluntarily disclosed, potentially leading to the waiver of privilege for related documents. The court examines whether the disclosure compromises the confidentiality of other privileged communications.

Conclusion

The CAA v. Jet2.Com Ltd judgment reinforces the pivotal role of the dominant purpose test in the application of Legal Advice Privilege. By meticulously dissecting communications to ascertain their primary intent, the court ensures that LAP remains a robust shield for genuine legal consultations while preventing its overextension into non-legal domains. This balance upholds the sanctity of legal confidences without impeding the discovery of relevant commercial information in legal proceedings.

For legal practitioners and corporate entities, the decision underscores the necessity of clear communication protocols, especially in environments where legal and commercial objectives intersect. Properly structuring communications to reflect their primary purpose will be essential in maintaining the privilege shield where appropriate.