An issue much debated by first instance judges, textbook writers and foreign courts over recent years has been whether the dominant purpose test applies to legal advice privilege (LAP). The Court of Appeal (Patten, Hickinbottom and Peter Jackson LJJ) has now ruled that it does, in Jet v Civil Aviation Authority [2020] EWCA Civ 35. A copy of the judgment can be accessed here.

The issue arose in the context of ongoing dealings between the regulator and an airline. A letter published by the regulator became the ground for a judicial review claim. In the run-up to publication, a draft of the letter had been circulated and discussed within the regulator. Those discussions consisted of email chains involving managers and in-house lawyers, the latter being consulted for their legal advice. The question arose whether the lawyers’ involvement in the email chains rendered the documents privileged.

The Court of Appeal, upholding Morris J, has now held that the dominant purpose test, familiar in the context of litigation privilege, also applies to LAP. Emails which were sent to managers, seeking managerial input, as well as to lawyers for their legal input, were therefore not privileged. The Court also considered that such “multi-addressee communications” should best be analysed as separate communications to each recipient. In answer to the objection that this exposed lawyer-client communications to undue risk of disclosure, Hickinbottom LJ stated that “LAP is a privilege, and those who wish to take advantage of it should be expected to take proper care”.

In two other points of interest, the Court considered the principles applicable to collateral waiver and disagreed with Morris J that disclosure of a particular instance of those emails in a witness statement would have constituted a waiver of any privilege; and, in obiter dicta, it added further support to the body of opinion that Three Rivers (No. 5) is incorrect in its requirement that LAP can only be claimed in respect of communications between a lawyer and employees specifically authorised to seek or receive legal advice.

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