Legal advice privilege in the email era

The Court of Appeal in England & Wales recently affirmed that legal advice privilege (LAP) is now subject to a "dominant purpose" test. This means that if a party wants to claim the protection of LAP, they must show that the dominant purpose of the confidential communication was to give or obtain legal advice.

R. (on the application of Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35

Background

Jet2 challenged the Civil Aviation Authority's (CAA) decision to issue a press release critical of their lack of participation in an ADR scheme for passenger complaints. Jet2 sought disclosure of emails connected to the press release, which had been circulated simultaneously to the CAA's in-house solicitors and executives; and which the CAA claimed LAP over.

The Court considered the application of LAP to multi-addressee communications - a pertinent issue given that most communications between solicitors and their client are now by email, with various parties often being copied in. The Court held that though the correspondence may have been for the purpose of obtaining legal advice, it was not the dominant purpose; hence it was not privileged.

Jet2 therefore aligns the test for LAP with the existing test for litigation privilege, bringing clarification to an issue on which case law has, to date, not been clear.

The following approaches should be considered when seeking to ensure that communications relating to legal advice are protected by LAP.

Practical takeaways

Provided there is a relevant legal context, privilege may extend to communications which form part of the ordinary flow of information and instructions, relating to the matter on which the solicitor is instructed. A document will not, however, be protected by privilege if it enters the realms of commercial advice.

• Legal advice should be sought separately from seeking commercial views. When circulating a document for legal opinion, avoid excessive copying in of non-solicitors to ensure the entitlement to assert privilege is not compromised.
• Remember, merely copying a solicitor into an email, or having them present at a meeting, is insufficient to attract LAP. Nor will a document created before solicitors are involved become privileged simply because it is forwarded for legal advice.
• Email attachments are not protected simply because the email itself attracts LAP. The email and the attachment will be considered separately for the purpose of decisions about disclosure, so ensure the dominant purpose is clear in both independently.
• If legal advice is to be obtained in a meeting where both solicitors and non-solicitors are present, consider whether the legal advice can be severed in the meeting minutes from other issues discussed.
• Include markings such as "Privileged - Legal Advice" or incorporate sentences into documents which state the purpose for which it is being created.
• For larger scale projects, draw up internal guidelines for email communications.

The decision in Jet2 is particularly relevant in an era where solicitors, whether in-house or external, are consulted as much for their commercial opinion as for legal advice. To avoid falling outwith LAP protection, organisations instructing solicitors must take care to consider the implications of Jet2 on their procedures. If in doubt, pick up the phone to discuss matters with your solicitor before committing thoughts to writing.