Legal Advice Privilege

January 30th, 2020 by James Goudie KC

In Civil Aviation Authority v R (ota Jet2.Com Ltd) and the Law Society  (2020) EWCA 35 the Court of Appeal considered when Legal Advice Privilege (“LAP”) is attracted, and affirmed that a claim for LAP requires the proponent of LAP to show that the relevant document, or communication, was created for the “dominant Purpose” (as opposed to one purpose) of obtaining legal advice.  Hickinbottom LJ with whom Patten and Peter Jackson LJJ agreed, considered authorities including Three Rivers (No. 5) and Eurasian, and said:-

“38. LAP involves the right to withhold disclosure of relevant, and possibly crucial, evidence from legal proceedings; and consequently it potentially detracts from the fairness of those proceedings. Such a right requires powerful justification….

39. Legal professional privilege is regarded of such importance that it has been described as “absolute”; but, like most rights, it is not absolute in the true sense of that word. … where a document is produced for the purpose of litigation, it will nevertheless be disclosable if that is not its dominant purpose. Furthermore, the right of the client to withhold disclosure of the evidence cannot be relied upon where to do so would further fraud or crime. Nevertheless, the vital nature of the privilege, and its underlying rationale, has been regularly emphasised by the courts….”

“43. … The following five propositions, relevant to this appeal, arise from the authorities. The first three propositions are uncontroversial; the other two require some greater consideration.

Proposition 1

44. Although the older cases (decided at a time when legal advice was generally obtained from or through solicitors in private practice) concern external lawyers, LAP applies to communications, not only with a lawyer in independent practice, but also with an in-house lawyer …

Proposition 2

45. Although the privilege attaches to communications between a lawyer and his client, the law recognises that legal advice is not given for hypothetical purposes, but to be considered and (insofar as accepted) applied by the client. It is therefore well-established that it covers, not only a document from the lawyer containing advice and the client’s own written record of advice (whether given in writing or orally), but also any communication (again, whether written or oral) passing on, considering or applying that advice internally. … Indeed, there are circumstances in which the privilege will attach to the dissemination of advice to third parties. … Equally, LAP attaches to communications from a lawyer to a third party containing information provided by the client to the lawyer which is covered by LAP and which the client has given the lawyer authority to disclose …

Proposition 3

46. The privilege applies to communications only for the purpose of obtaining or giving legal advice, and not (e.g.) other professional or commercial advice. …

Proposition 4

47. … material collected by a client (or by his lawyer on his behalf) from third parties or independent agents for the purposes of instructing lawyers to give advice is not covered by LAP; and, further, where the relevant client is a corporation, documents or other materials between an employee of that corporation and a co-employee or the corporation’s lawyers, even if required or designed to equip those lawyers to give legal advice to the corporation, do not attract LAP unless the employee was tasked with seeking and receiving such advice on behalf of the company…”

Proposition 5

60. The focus therefore turns to the scope of “legal advice” for these purposes, and the fifth proposition namely that, for LAP to apply, the communication must be made “in a legal context” (the first limb), but otherwise “legal advice” is widely defined (the second limb).”

“69. … summarising the position as indicated by the authorities (and still leaving aside for the time being the issue of whether the relevant purpose has to be “dominant”):

i) Consideration of LAP has to be undertaken on the basis of particular documents, and not simply the brief or role of the relevant lawyer.

ii) However, where that brief or role is qua lawyer, because “legal advice” includes advice on the application of the law and the consideration of particular circumstances from a legal point of view, and a broad approach is also taken to “continuum of communications”, most communications to and from the client are likely to be sent in a legal context and are likely to be privileged. Nevertheless, a particular communication may not be so – it may step outside the usual brief or role.

iii) Similarly, where the usual brief or role is not qua lawyer but (e.g.) as a commercial person, a particular document may still fall within the scope of LAP if it is specifically in a legal context and therefore, again, falls outside the usual brief or role.

iv) In considering whether a document is covered by LAP, the breadth of the concepts of legal advice and continuum of communications must be taken into account.

v) Although of course the context will be important, the court is unlikely to be persuaded by fine arguments as to whether a particular document or communication does fall outside legal advice, particularly as the legal and non-legal might be so intermingled that distinguishing the two and severance are for practical purposes impossible and it can be properly said that the dominant purpose of the document as a whole is giving or seeking legal advice.

vi) Where there is no such intermingling, and the legal and non-legal can be identified, then the document or communication can be severed: the parts covered by LAP will be non-disclosable (and redactable), and the rest will be disclosable …

vii) A communication to a lawyer may be covered by the privilege even if express legal advice is not sought: it is open to a client to keep his lawyer acquainted with the circumstances of a matter on the basis that the lawyer will provide legal advice as and when he considers it appropriate.

70. That leads me to the first question which has to be considered in this appeal, at the heart of Grounds 1 and 2, namely does a claim for LAP require the proponent to show that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice?”

“94. … I do not consider that there is any good ground for not following the preponderance of authority which supports the inclusion of a dominant purpose criterion into LAP.

95. Further, in my view there are good grounds for including such a criterion.

i) Although they do have some different characteristics, litigation privilege and LAP are limbs of the same privilege, legal professional privilege. It is uncontroversial that the dominant purpose test …applies to litigation privilege.   there is no compelling rationale for differentiating between limbs of the privilege in this context. …

ii) Whilst I accept that the position is not uniform, generally the common law in other jurisdictions has incorporated a dominant purpose test in both limbs of legal professional privilege, … This not only suggests that such a test is able to work in practice; but this is a legal area in which there is advantage in the common law adopting similar principles.

96. For those reasons, whilst I readily accept that the jurisprudence is far from straightforward and the authorities do not speak with a single, clear voice, I consider Morris J was correct to proceed on the basis that, for LAP to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice. For those reasons, whilst I readily accept that the jurisprudence is far from straightforward and the authorities do not speak with a single, clear voice, I consider Morris J was correct to proceed on the basis that, for LAP to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice….

Hickinbottom LJ also considered multi-addressee communications (paragraph 97-103 inclusive), separate consideration of e-mails and attachments (paragraphs 104-108 inclusive) and waiver (paragraphs 109-121 inclusive).

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