Legal Advice Privilege

The issue of legal advice privilege can be a highly relevant one in some environmental cases, both in relation to advice sought by a company subject to criminal or enforcement proceedings, and also sometimes advice sought by a regulator.  The Court of Appeal in R ( Ltd) v. Civil Aviation Authority [2020] EWCA Civ 35 considered the latter.  The litigation concerned criticisms made by the CAA of the airline in a press release.  When the airline wrote to the CAA to take issue with the content of the press release, the CAA sent the claimant a letter reiterating its criticisms and leaked all the correspondence between the parties to a national newspaper. The airline sought judicial review of the CAA’s decisions to issue the press release and to leak the correspondence. The airline sought specific disclosure of the previous drafts of the CAA’s letter and records of any discussions on those drafts.  Despite claiming legal advice privilege, the CAA was ordered to disclose various internal e-mails, including some to which its in house lawyers were addressees.

The Court of Appeal reviewed the difficult jurisprudence on legal advice privilege and the “dominant purpose” test, usefully summarising it in a series of propositions.  It held that that there were no good grounds for not following the preponderance of authority, which accepted that the dominant purpose test applied to legal advice privilege, and there were good grounds for doing so, including the fact that the dominant purpose test undoubtedly applied to litigation privilege and the fact that generally other common law jurisdictions applied the test to legal advice privilege. If the dominant purpose of the communication was commercial, it would not be privileged, even if also sent to lawyers for the purpose of getting legal advice.

In summary, the Court held that:

(1) Where a communication had been sent simultaneously to multiple addressees, including a lawyer, the communication would be subject to legal advice privilege if its dominant purpose had been to settle the instructions to the lawyer, even if that communication had been sent to the lawyer himself by way of information or was part of a rolling series of communications.

(2) However, if the dominant purpose had been to obtain the commercial views of the non-lawyer addressees, the communication would not be privileged, even if a subsidiary purpose had been to obtain legal advice from the lawyer addressee.

(3) The response from the lawyer, if it contained legal advice, would almost certainly be privileged, even if copied to more than one addressee.

(4) Where a communication disclosed or was likely to disclose the nature and content of legal advice, then it would in any event be privileged.

(5) In order to determine whether a document disclosed or might disclose the nature and content of legal advice it was necessary to look at the document in the context of the communications which preceded and followed it.

The Court of Appeal concluded that the judge had properly applied the dominant purpose test in the context of multi-addressee communications and that there were no grounds to interfere with the conclusion that the documents did not attract legal advice privilege.

It is possible to see how these principles might well be of relevance for example in the situation where enforcement proceedings are preceded by correspondence between a regulator and a regulated company.  Care will need to be taken in how such correspondence is drafted and discussed, as it does not follow that simply because external or in-house lawyers have been involved or copied in, that legal advice privilege will automatically apply.

Text reference: 3-69


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