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On 28 January 2020, the Court of Appeal delivered its important judgment in Jet2 (R. (on the application of Jet2.com Ltd) v Civil Aviation Authority  EWCA Civ 35), confirming the “dominant purpose test” for legal advice privilege.
In this article, Rob Hammond addresses the practical guidance and significant consequences of the new test for the oft-difficult issues of privilege in modern legal communications.
In 2017 and 2018 the Civil Aviation Authority (“CAA”) published a press release and correspondence concerning Jet2’s refusal to join the CAA consumer dispute resolution scheme. Jet2 sought to challenge the CAA’s publications by judicial review.
In those proceedings, Jet2 applied for the disclosure of emails concerning the CAA’s internal response to Jet2’s complaint following the press announcement. They also sought the drafts of the CAA’s subsequent reply to Jet2. The CAA refused disclosure on the grounds of legal advice privilege (“LAP”). The emails and drafts involved multiple recipients, some of whom were in-house lawyers. Nonetheless, a later witness statement, relied on by the CAA, voluntarily disclosed a privileged email from the relevant period.
At first instance, Morris J held that large portions of the documents in dispute were not privileged. In a subsequent hearing, he concluded that by its later voluntary disclosure, the CAA had lost privilege in the remaining documents by collateral waiver. The CAA appealed both decisions on the following grounds:
Hickinbottom LJ identified five propositions going to LAP, summed up at :
Hickinbottom LJ’s approval of the dominant purpose test was dispositive of this ground to a large extent. The CAA recognised that many of the emails sent to non-lawyers and in-house counsel could not be privileged on that ground.
However, Hickinbottom LJ held the approach to LAP in multi-addressee communications is as follows :
Applying this approach, Hickinbottom LJ held that the CAA’s voluntarily disclosed email was not privileged.
Hickinbottom LJ relied on the established principle that non-privileged documents cannot acquire privilege simply by being sent to lawyers: Imerman v Tchenguiz  EWHC 2901 at . On that basis, separate analysis must be given to substantive documents and their attachments. Given that attachments may have been “received or created by the sender, [they] may require discrete considerations” when assessing LAP .
Given his finding on Ground 2, Hickinbottom LJ’s reasoning on collateral waiver is obiter. Hickinbottom LJ concluded that the purpose of collateral waiver is to secure fairness by preventing misleading partial disclosures .
Disclosure must therefore be made in respect of the entire “transaction” to which the documents voluntarily disclosed relate . The court will construe that transaction objectively . In this regard, the purpose and nature of the voluntary disclosure is crucial to issues of unfairness and the breadth of the transaction [118,119].
In Jet2, “the relevant transaction so far as the voluntary disclosure is concerned [was] restricted to the 24 January 2018 email itself. Fairness [did] not require more” , “it [could not] be right that such a modest [purpose and] voluntary disclosure could result in collateral waiver of all the internal communications” .
Since its inception, the doctrine of privilege has been beset with complexity. Hickinbottom LJ’s judgment adds real clarity to the law of privilege in four ways:
The test also brings English law into comity with other common law jurisdictions in Australia, Singapore and Hong Kong. This will benefit international law firms servicing those markets, and other firms providing international advice. Put simply, harmonised doctrines of privilege reduce complexity and the risk of inadvertent waiver of privilege in multinational communications.
“[L]arge corporations need, as much as small corporations and individuals, to seek and obtain legal advice without fear of intrusion. […] If a multi-national corporation cannot ask its lawyers to obtain the information it needs to advise that corporation from the corporations employee’s with relevant first-hand knowledge, under the protection of [privilege], that corporation [is disadvantaged…] Whatever the rule is, it should be equally applicable to all clients, whatever size or reach.
Judgment from the Supreme Court will be required to overturn Three Rivers (No. 5). However, the recognition of the dominant purpose test may provide a fairer and more effective limitation of LAP, for future courts to apply.
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