Legal Professional Privilege & Electronic Communications

Case Note: The Civil Aviation Authority v The Queen On The Application Of Jet2.com Limited [2020] EWCA Civ 35, Legal Professional Privilege and Multi-addressee Electronic Communications by Suang Wijaya*

For legal professional privilege to apply to a communication, must the communication have been made with the “dominant purpose” of seeking or giving legal advice? Or is it sufficient that the seeking and giving of such advice was one of many purposes of the communication? Depending on the answer to these questions, what approach should the Court take in ascertaining whether legal professional privilege applies to e-mail communications between multiple parties, where one of the senders or recipients is an external lawyer or in-house counsel? This article discusses the English Court of Appeal case of The Civil Aviation Authority v The Queen On The Application Of Jet2.com Limited [2020] EWCA Civ 35 (CAA), which addresses these interesting questions.  

Introduction

For legal professional privilege to apply to a communication, must the communication have been made with the “dominant purpose” of seeking or giving legal advice? Or, is it enough that the seeking and giving of such advice was one of many purposes of the communication? Depending on the answer to these questions, what approach should the court take in ascertaining whether legal professional privilege applies to e-mail communications between multiple parties, where one of the senders or recipients is an external lawyer or in-house counsel?

These interesting questions were recently addressed by the English Court of Appeal (EWCA) in The Civil Aviation Authority v The Queen On The Application Of Jet2.com Limited [2020] EWCA Civ 35 (CAA). It is expected that a Singapore court will soon need to grapple with these same issues, given their practical significance.

Facts of CAA

Jet2.com Limited (Jet2), an airline company, issued judicial review proceedings against the Civil Aviation Authority (the Authority). Jet2 challenged the lawfulness of the Authority’s decisions to issue a press release and subsequently publish correspondence which had been exchanged between Jet2 and the Authority. In the press release and correspondence, the Authority had criticised Jet2’s refusal to participate in an alternative dispute resolution scheme promoted by the Authority. One of Jet2’s grounds of challenge was that the Authority had made its decision for improper purposes, that is, to damage Jet2’s trading interests, punish Jet2 for not joining the scheme, and pressure Jet2 to join the scheme.

In support of Jet2’s claim of improper purpose, Jet2 applied for disclosure of: (a) drafts of a letter from the Authority to Jet2 responding to Jet2’s complaint about the Authority’s press release; and (b) records of discussions of those drafts. The Authority resisted the application.

The Issues

It appears to have been undisputed that the documents sought were not covered by litigation privilege. The point of contention was whether legal advice privilege applied to the documents. The Authority argued was that the documents were indeed so privileged. The Authority’s key submission was that these documents were contained in multi-addressee e-mails which were copied to, among other persons, the Authority’s in-house counsel. One of the purposes for which the documents were created and communicated was to obtain the in-house counsel’s legal input, if any.

It is with this background in mind that the question whether legal advice privilege contained a “dominant purpose” requirement took centre stage. The Authority accepted that for most of the documents sought, seeking and giving legal advice was one of a number of purposes but not the dominant purpose for which these documents were created and communicated. The Authority therefore had to argue, as a matter of principle, that a party resisting disclosure should not be required to show that seeking or giving legal advice was the dominant purpose of a communication. Unsurprisingly, Jet2 took the opposite view.

The EWCA’s Decision

The EWCA decided against the Authority on the point of principle, agreeing with the High Court judge below that the documents sought were not covered by legal advice privilege.

In discussing why the “dominant purpose” test should apply, Hickinbottom LJ (with whom the other Lord Justices agreed) helpfully set out five relevant “propositions” of the English law on legal advice privilege:

1. First, legal advice privilege applies to communications not only with an external lawyer, but also with in-house counsel (CAA at [44]).¹
2. Second, the privilege attaches not only to documents (whether created by lawyer or client) containing the lawyer’s legal advice, it also extends to further communications passing on, considering or applying that advice internally. In appropriate circumstances, the privilege can even extend to the dissemination of the advice to third parties (CAA at [45]). In this respect, “the law has taken a flexible and realistic approach, reflecting the realities of modern corporate and commercial arrangements” (CAA at [47]).
3. Third, the privilege does not attach to communications for the purpose of obtaining or giving non-legal professional or commercial advice (CAA at [46]).
4. Fourth, it remains the position in English law (see Wheeler v Le Marchant (1881) 17 Ch D 675) that materials collected by a client (or a lawyer on the client’s behalf) from a third party are not covered by legal advice privilege, even if the purpose for the collection of those materials is for the lawyer to give legal advice to the client based on those materials (CAA at [47]).² The English law position also remains (see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556 (Three Rivers (No 5))) that where the relevant client is a corporation, legal advice privilege does not attach to documents or other materials disseminated between an employee of that corporation (not specifically tasked with seeking and receiving legal advice) and another such employee, or between such an employee and the corporation’s lawyers, even if the dissemination is required or designed to equip the lawyers to give legal advice to the corporation.³ In [54] to [58] of CAA, Hickinbottom LJ recorded that, like numerous academics and previous constitutions of the EWCA, he would be inclined to depart from the fourth proposition if he had the power to.
5. Fifth, it is now well-established (see Balabel v Air India [1988] Ch 317 (Balabel)) that in ascertaining whether the purpose for a communication is related to “legal advice”, that purpose should be construed broadly. Legal advice privilege does not only apply to communications seeking or conveying legal advice. The privilege extends to the entire “continuum of communication and meetings” between lawyer and client, where “information is passed between the lawyer and client with a view to keeping both informed so that advice may be sought and given as required”. Furthermore, “legal advice is not confined to telling the client the law; it must also include advice as to what should prudently and sensibly be done in the relevant legal context” (Balabel at page 330D -331A) (CAA at [60] to [68]).

Hickinbottom LJ then concluded, on balance, that legal advice privilege should indeed be qualified by the “dominant purpose” requirement. In support of this view, he gave, amongst other things, the following policy reasons:

1. It is undesirable that “swathes of internal and external material could be excluded from disclosure simply because a lawyer had been copied in and asked for his legal advice as and when he considered it appropriate to give it” (CAA at [93(i)]). Hickinbottom LJ appears to have been troubled by the prospect of abuse of the privilege by use of “simultaneous communications by a single e-mail to lawyer and non-lawyers” (CAA at [93(iii)]).
2. Litigation privilege, the other limb of legal professional privilege, also contains a “dominant purpose” requirement (CAA at [95(i)]).
3. Other common law jurisdictions including Australia, Hong Kong and Singapore⁴ have adopted the “dominant purpose” requirement for legal professional privilege, apparently without practical difficulty (CAA at [93(iii)] and [95(ii)]).

Given the EWCA’s decision that legal advice privilege is in principle subject to a “dominant purpose” requirement, attention must be paid next to the appropriate approach to determining whether legal advice privilege attaches to multi-addressee with an external lawyer or in-house counsel as one of the senders or recipients. In this respect, Hickinbottom LJ gave, amongst other things, the following guidance:

1. Where one of the recipients to a multi-addressee e-mail communication is a lawyer or in-house counsel, the court will need to identify the purpose(s) of that e-mail, taking into account the wide scope of “legal advice” as set out in the fifth proposition above. If the dominant purpose of the communication is to settle and/or convey instructions to the lawyer, then (subject to the fourth proposition above) legal advice privilege will attach to the e-mail. “That will be so even if that communication is sent to the lawyer … by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer.” However, and crucially, “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)” (CAA at [100(ii)]).
2. Where it is a lawyer who sends a multi-addressee e-mail, and the e-mail contains legal advice the e-mail will “almost certainly be [legal advice privilege]”. Given the fifth proposition set out above, “the court will be extremely reluctant to engage in the exercise of determining whether… the dominant purpose was the provision of legal (rather than non-legal) advice. It is difficult to conceive of many circumstances in which such an exercise could be other than arid or unnecessary” (CAA at [100(iii)]).
3. A similar approach applies to meetings (including records of meetings) attended by non-lawyers, in which commercial matters are discussed with the lawyer adding legal advice and input when necessary. The court must still ascertain the dominant purpose of the meeting (CAA at [100(viii)]).

Concluding Thoughts

It will be interesting to see how a Singapore court will deal with the issues considered in CAA, should such issues come before the court in an appropriate case. The Singapore court may have to decide, amongst other things: (a) whether the “dominant purpose” requirement is consistent with the statutory wording of ss 128, 128A and 131 of the Evidence Act; and (b) whether the fourth proposition above represents the position in Singapore law and the impact the answer to this has on the suitability of the “dominant purpose” test.

In the meanwhile, the outcome in CAA should be a cautionary tale for corporations and lawyers, both in-house and external, participating in multi-addressee e-mails (or, in the more modern context, group messaging platforms). Commonly held assumptions about the privileged nature of such communications may no longer hold. As Hickinbottom LJ put it in CAA at [93(iii)], “[legal advice privilege] is a privilege, and those who wish to take advantage of it should be expected to take proper care when they do so”.

1. In Singapore law, s 128A of the Evidence Act (Cap 97, 1997 Rev Ed) (the Evidence Act) has put this proposition on a statutory footing.
2. In Skandinaviska Enskilda Banken Ab (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals (2007) 2 SLR(R) 367 (Skandinaviska) at (51) to (65), the Singapore Court of Appeal (SGCA) stated, obiter, that the court would in an appropriate case be inclined to depart from this position, and hold that legal advice privilege should attach to documents created by or collected from third parties for the dominant purpose of obtaining legal advice on them.
3. In Skandinaviska at (36) to (42), the SGCA understood Three Rivers (No 5) as standing for the uncontroversial proposition that if an employee is not authorised to communicate with the corporation’s lawyers, then legal advice privilege will not apply to communications between such an unauthorised employee and the lawyers.
4. Hickinbottom LJ appears to have erroneously thought that the ratio decidendi in Skandinaviska included the proposition that the “dominant purpose” test should apply to legal advice privilege generally. In fact, the SGCA only expressed, obiter, that for the specific context of communications from a third party to a client or a client’s lawyer, the SGCA would in an appropriate case be inclined to accept that such communications should be protected by legal advice privilege if they were made for the dominant purpose of obtaining legal advice.