Multi-party communications and legal advice privilege: are communications with your lawyer always privileged?

It is not unusual for organisations within the travel industry to have their own in-house legal team, or for the members of their legal team to participate in meetings concerning both legal and non-legal matters. Often, communications are sent to in-house lawyers for their commercial views on decisions taken within the organisation. However, if an in-house lawyer is present in a meeting in which notes are taken, or if they are included within an email sent to a number of the organisation’s members, does that mean legal advice privilege attaches to those communications?

Recently, proceedings have been ongoing between Jet2.com (“Jet2”) and the Civil Aviation Authority (“CAA”). In essence, Jet2 have challenged the lawfulness of the CAA’s decision to issue a press release that criticised Jet2’s refusal to participate in a voluntary ADR scheme, as well as the CAA’s decision to publish correspondence between the parties and provide that correspondence to the Daily Mail. During the proceedings, issues concerning disclosure of documents and communications allegedly protected by legal advice privilege arose. The Court of Appeal have recently provided some much needed clarity as to when privilege attaches in their recent judgment in this matter (Civil Aviation Authority v R (on the application of Jet2.com) (Respondent) and the Law Society of E&W (Intervener) [2020] EWCA Civ 35 (CA)).

Factual background

Directive 2013/11/EU requires Member States to ensure that consumers can, on a voluntary basis, access ADR processes for disputes concerning contractual relations between consumers and traders. In the UK, the Directive is enforced through the relatively new ADR for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (“the ADR Scheme”). Participation in the ADR Scheme is entirely voluntary for both traders and consumers.

Jet2 chose not to participate in the ADR Scheme. On the 27^th December 2017, the CAA published a policy document entitled: “ADR in the aviation sector – a first review”, together with a press release headed “Thousands more airline passengers are now receiving compensation thanks to [ADR]” (“the Press Release”). Within the Press Release, the CAA identified and criticised airlines who had opted not to participate in the ADR Scheme, urging them to do so. Jet2 was singled out for particular criticism. The Press Release stated that Jet2 had “inexplicably and persistently” refused to sign up to the ADR Scheme, and consequently, their customers were at a “distinct disadvantage”

Jet2 considered the comments were false (or at least misleading) and unfair. Subsequently, on the 16^th January 2018, Jet2 wrote to the CAA complaining about the Press Release and set out why they had not signed up to the ADR Scheme (“the 16^th January Letter”). Jet2 also issued its own press release and put the 16^th January Letter on their website.

The CAA considered an appropriate response. On the 24^th January 2018, a first draft response to the 16^th January Letter was circulated by the CAA’s Head of Consumer Enforcement Department. The draft was sent under a covering email to a CAA Consumer Enforcement Department Manager and a Principal Legal Advisor with the CAA.

The CAA formally responded to Jet2’s letter on the 1^st February 2018, emphasising that they were not suggesting Jet2 provided a poor overall service (“the 1^st February Letter”). However, they criticised Jet2 for the stance it had taken in relation to the ADR Scheme. The CAA repeated in the letter the criticism of denying customers their fundamental rights and asserted that the CAA was pursuing a proper purpose by drawing attention to Jet2’s ongoing failure to participate in the ADR Scheme. The CAA also stated that they reserved the right to publish the correspondence between the CAA and Jet2.

Correspondence between the parties was then provided by the CAA to the Daily Mail, who subsequently published two articles on the matter. The articles referred in detail to the correspondence and included quotations.

The Proceedings

Jet2 issued judicial review proceedings against the CAA, challenging their decision to publish the Press Release and the post-Press Release correspondence to the Daily Mail.

On the 3^rd August 2018, the CAA served detailed Grounds of Opposition. They contended that, firstly, the publication of the Press Release and correspondence fell within section 83 of the Civil Aviation Act 1982. Secondly, they considered that there was no improper purpose, as the purpose of publication was to promote the interests of consumers by making them aware of which airlines had not signed up to the ADR Scheme.

On the 26^th October 2018, Jet2 made an application for specific disclosure of categories of documents, including all drafts of the 1^st February Letter and all CAA records of any discussions concerning those drafts. Jet2 considered these were necessary to understand the CAA’s reasons and purpose behind their publication of the 1^st February Letter and were therefore relevant to the “improper purposes” ground of challenge. The CAA, however, considered that the documents requested were privileged and that privilege had not been waived.

The application came before Morris J, who gave judgment in Jet2’s favour. The CAA subsequently sought permission to appeal this decision.

On the 4^th February 2019, a hearing was listed to determine the application for permission to appeal. In response to the application, Jet2 contended that the communications were not privileged. In the alternative, they argued that if the Court considered that the communications were privileged, an appeal would have no real prospect of success because the CAA had waived privilege in all communications concerning the draft 1^st February Letter, by disclosing the email sent on the 24^th January 2018.

Morris J later gave judgment, in which he considered that privilege had been waived.

The CAA sought permission to appeal, stating that Morris J made four errors of law in both judgments, in that:

1. He erred in holding that claims for legal advice privilege (“LAP”) are in principle subject to a dominant purpose test;
2. As a result of dominant purpose test which he applied, he erred with respect to the proper approach to be adopted when considering whether multi-addressee communications are protected by LAP;
3. He erred in holding that an assessment of an email and any attachment must be carried out discretely and without any reference to any attachment or covering email respectively;
4. In respect of the February 2019 judgment, he erred in his approach to collateral waiver.

Permission was given on all grounds. The Court of Appeal gave judgment on each of the grounds of appeal.

Ground 1

Ground 1 was dismissed. Hickinbottom LJ did not consider that there was any good ground for not following the preponderance of authority which supported the inclusion of a dominant purpose criterion into LAP. Further, there were good grounds for including such a criterion:

1. Litigation privilege and LAP are limbs of legal professional privilege. It is uncontroversial that the dominant purpose test applies to litigation privilege. There is no compelling rationale for differentiating limbs of the privilege in this context.
2. The common law in other jurisdictions has incorporated a dominant purpose test in both limbs of legal professional privilege.
3. The Judge was correct to proceed on the basis that, for LAP to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice.

Ground 2

Ground 2 was similarly dismissed. Hickinbottom LJ set out the appropriate approach to multi-addressee emails, such as those in respect of which Jet2 sought disclosure:

1. The dominant purpose test applies to LAP. The test focusses on documents and other communications and has to be applied to each.
2. In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his or her input, the purpose of the communication needs to be identified. If the dominant purpose of the communication is, in substance, to settle the instructions to the lawyer, then the communication will be covered by LAP. That will be so even if that communication is sent to the lawyer him/herself by way of information, or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. If the dominant purpose is to obtain the commercial views of the non-lawyer addressees, it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee.
3. If the response from a lawyer contains legal advice, it will almost certainly be privileged, even if it is copied to more than one addressee. The Court will be extremely reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was the provision of legal, rather than non-legal, advice.
4. Multi-addressee communications should be considered as separate communications between the sender and each recipient. Where the purpose of the sender is simultaneously to obtain from various individuals both legal advice and non-legal advice, it is difficult to see why the form of the request in itself should be relevant as to whether the communications to the non-lawyers should be privileged.
5. There is some benefit in taking the approach to consider whether, if the email were sent to the lawyer alone, it would have been privileged. If not, then the question of whether any of the other emails are privileged hardly arises. If it would, then the question arises as to whether any of the emails to the non-lawyers are privileged, because, for example, its dominant purpose is to obtain instructions or disseminate legal advice.
6. Where there is a multi-addressee email seeking both legal advice and non-legal advice, if regarded as separate communications, those to and from the lawyer will be privileged; otherwise, they will not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers is that of instructing the lawyer. If it is not for that purpose, in most cases, the email as a whole will clearly not have the dominant purpose of obtaining legal advice.
7. Where a communication might realistically disclose legal advice, then the communication will in any event be privileged.
8. Legal advice requested and given at a meeting attended by lawyers and non-lawyers, at which commercial matters were discussed with the lawyer adding legal advice and input if and when required, would be privileged. However, the mere presence of a lawyer is insufficient to render the whole meeting the subject of LAP so that none of its contents (including minutes, notes or a record of the meeting) are disclosable. If the dominant purpose of the meeting is to obtain legal advice, unless anything is said outside that legal context, the contents of the meeting will be privileged. If the dominant purpose of the discussions is commercial or otherwise non-legal, then the meeting and its contents will not generally be privileged, although any legal advice sought or given within the meeting may be.
9. When considering whether an email/attachment might realistically disclose the nature of legal advice being sought/given-by the in-house lawyer, is not necessary for legal advice to have been requested. In considering whether any document might disclose legal advice, it has to be considered in context.
10. The Judge was right to conclude that the email of the 24^th January 2018 was not covered by privilege.

Ground 3

Ground 3 was dismissed, as the Judge did not err in requiring the separate consideration of emails and attachments for the purpose of identifying documents that are covered by LAP and those which are not.

Ground 4

Ground 4 effectively became academic, as the relevant documents sought were not privileged.

The starting point was to ascertain the issue in relation to which the voluntarily disclosed material had been deployed, otherwise known as “the transaction test”. The transaction is not the same as the subject matter of the disclosed document or communication, and waiver does not apply to all documents which could be described as “relevant” to the issue. Once the transaction has been identified and proper disclosure made, the principles of fairness may come into play if it is apparent from the disclosure that it is in fact part of a much bigger picture.

However, in this case, the Judge erred in proceeding on the basis that the transaction extended to everything that was in response to the 24 January 2018 email. it was considered that it could not be right that such a modest voluntary disclosure could result in the collateral waiver of all internal communications relating to the drafting of the 1^st February Letter.

Conclusion

This decision will ultimately affect how in-house lawyers assess what communications are covered by LAP and therefore what should be disclosed in legal proceedings. For those in-house lawyers providing legal and commercial advice, an assessment will need to be made as to whether documents once considered privileged remain privileged in the light of this judgment. For lawyers and non-lawyers within an organisation, greater care will need to be taken as regards the contents of emails and letters addressed to more than one recipient; just because they are sent to or from a lawyer does not mean that they will be attract LAP.

About the author

Dominique Smith was called in 2016 and undertook pupillage in chambers under Jack Harding, Andrew Spencer and Sophie Mortimer. Her experience as a pupil in the field of travel law translated into a busy practice, and she is now a highly regarded practitioner within the area in her own right. She undertakes work for both Claimants and Defendants and has a particular interest and expertise in Coroners’ Inquests.