The High Court has ruled on a significant issue relating to legal advice privilege. Where an email seeking views is sent to multiple addressees, including non-lawyers as well as lawyers, the email as sent to the non-lawyers (and any response from the non-lawyer) is not privileged. This is so even if the lawyers were not merely copied in, but included so that legal advice could be provided. The email as sent to or from the non-lawyer would only be privileged if it disclosed or was likely to disclose the nature of the legal advice being sought. The issue is one that frequently arises in disclosure exercises, particularly in the context of institutions with in-house counsel.

In this case, the airline Jet2 is bringing a judicial review against the Civil Aviation Authority for alleged abuse of power in relation to adverse publicity arising from a press release and contact by the CAA with the Daily Mail. Issues of the CAA’s true purpose are relevant in those proceedings. Following service of the defence case, Jet2 sought specific disclosure of internal communications including drafts of a letter sent by the CAA to Jet2 and which shortly after formed the basis of the Daily Mail’s coverage. An initial draft had been circulated by a CAA non-lawyer staff member to a number of colleagues for their comments. Among the recipients was an in-house lawyer. The others were various non-lawyer officers of the authority. The CAA claimed privilege in all the subsequent communications in the chain. Litigation was not yet in prospect but legal advice privilege was invoked.

Mr Justice Morris in the Administrative Court [2018] EWHC 3364 (Admin) rejected the CAA’s claim to privilege over the drafts and their covering emails, holding that (1) a test of dominant purpose was applicable to legal advice privilege as well as to litigation privilege: the purpose of seeking legal advice was not dominant over the purpose of seeking views generally; and in any event (2) the email as sent to each recipient was a separate communication, so that the email as sent to the non-lawyers was not privileged unless it disclosed or was likely to disclose the nature and content of the legal advice sought and obtained.

At a subsequent hearing [2019] EWHC 336 (Admin), Morris J held that (3) the CAA had no arguable ground of appeal on either issue (1) or (2), and that (4) in any event, its voluntary deployment of the initial draft constituted a waiver of privilege (had any existed) in the internal communications. However, he granted permission to appeal on the waiver issue. The CAA intends to seek permission to appeal on issues (1) and (2).

Charles Béar QC and Nicolas Damnjanovic (instructed by Norton Rose Fulbright LLP) appeared for Tamara Oppenheimer (instructed by Mayer Brown LLP) appeared for the CAA.