Legal professional privilege revisited

Three recent reported cases have considered the scope and circumstances in which documents are subject to legal professional privilege (LPP). These have important implications for legal practitioners considering whether a claim for LPP can be made and sustained.

LPP comprises of legal advice privilege (LAP) and litigation privilege. LAP protects confidential communications – written or oral – between a lawyer and client from being disclosed, where the communication is for the purpose of seeking and receiving legal advice.

Litigation privilege applies to communications made for the dominant purpose of obtaining legal advice, evidence or information in preparation for contemplated or actual litigation.

Dominant purpose

It has long been recognised that for litigation privilege to apply, the privileged documents/ correspondence must have been created for the sole or dominant purpose of litigation.

However, whether or not the ‘dominant purpose’ test applied to LAP was, then, less clear. The position has now been confirmed by the Court of Appeal in Civil Aviation Authority v R (on the application of Jet2.com Ltd [2020] EWCA Civ 35 in which the court held that LAP only applied to documents/correspondence created for the dominant purpose of providing or seeking legal advice.

The case related to a press release by the Civil Aviation Authority (CAA) in December 2017 which was critical of the airline Jet2.

Jet2 complained about the press release in January 2018. CAA issued a response to that complaint in February 2018, a copy of which was leaked to the media. Jet2 sought a judicial review of CAA’s decisions to publish the press release and the response to its complaint.

In the course of the judicial review proceedings, Jet2 sought all previous drafts of the February 2018 letter and all records of CAA discussions in relation to the draft, on the basis that these were required to understand the CAA’s reasoning behind the decision to publish.

The CAA contended that its in-house lawyers had been involved in the discussions surrounding the drafts and had advised on their contents, therefore the documents/correspondence were subject to LAP.

At first instance, Mr Justice Morris applied the dominant purpose test. He held that most of the communications fell to be disclosed, even where CAA’s lawyers had been copied into the communications for the purpose of giving legal advice, as the dominant purpose of the communications as a whole had been to seek commercial rather than legal views on the draft.

The CAA appealed and the Law Society intervened to support the position that the dominant purpose test did not apply to claims of LAP.

The appeal court dismissed the appeal. While acknowledging the jurisprudence was “far from straightforward” and there were conflicting authorities, the court found the judge had been correct to proceed on the basis that for LAP to apply, the party asserting LAP was required to show that the dominant purpose of the communication/document was to obtain or give legal advice.

The court noted that the dominant purpose test was applied when assessing claims to LAP in other jurisdictions (Australia, Singapore and Hong Kong). It also stated that LAP and litigation privilege are ultimately limbs of the same privilege (legal professional privilege) and there was no compelling rationale why the dominant purpose test should not apply to both.

Group emails

The Court of Appeal also endorsed the judge’s approach to group emails to multiple addressees, some of whom were CAA’s inhouse lawyers. It held that where the dominant purpose of the email had been to obtain the commercial views of the non-lawyer addressees, LAP would not apply – even where the lawyer addressees had been copied in for the purpose of providing legal advice.

This case demonstrates that merely copying a lawyer into communications will not on its own be sufficient for communications to be subject to LAP, unless the dominant purpose of the communication is to obtain legal advice.

The safer approach is probably not to include lawyers in group emails and contact them separately, making clear the purpose of doing so is to seek legal, rather than commercial, advice.

Client instructions

In Raiffesen Bank International v Asia Coal Energy Ventures (1) Ashurst LLP (2) [2020] EWCA Civ 11, the claimant unsuccessfully appealed against the decision of Mrs Justice Moulder.

She had dismissed its application for specific disclosure from Ashurst of documents relating to its client’s instructions in respect of matters relevant to the underlying action.

In a financing transaction, Ashurst had provided written confirmation to the claimant bank that it had received funds of no less than $85m; and had irrevocable instructions to transfer them into an escrow account, or to hold the funds in the event the proposed escrow agreement was not subsequently entered into.

In its application for specific disclosure for copies of any instructions provided by the client to Ashurst which resulted in the written confirmation being provided, the claimant relied on Conlon v Conlon’s Ltd [1952] 2 All ER 462 as authority for the proposition that LAP did not apply to a communication which a client had instructed his solicitor to repeat.

The bank also argued that an instruction to provide a statement/confirmation was not a communication which could attract LAP in any event.

The judge at first instance dismissed the application, finding that the bank’s attempted reliance on Conlon was misplaced.

In Conlon there was a dispute between the client and his solicitors about whether he had given them authority to enter into a settlement, and the court ordered disclosure of the client’s instructions to resolve this issue.

The proper interpretation of Conlon was that the client had waived LAP by putting the content of his instructions in issue – it wasn’t an authority for the wider proposition contended by the bank.

The Court of Appeal agreed and dismissed the appeal, finding that a statement to a third party by a solicitor confirming its client’s instruction did not automatically cause LAP to be lost in the correspondence/documents evidencing those instructions.

Furthermore, while the particular communication confirming the instruction may not contain any privileged advice, it inevitably formed part of the continuum of communications in which a solicitor advised his client – which were subject to LAP.

Witness statements

It is common to refer in witness statements to the fact that a party has obtained legal advice

In KMG International NV v (1) Melanie Anne Chen (2) Chipper Management [2019] EWHC 3634 (Comm) the court restated the principles which apply when determining whether a party’s reference to legal advice in a witness statement amounts to a waiver of the privilege in that advice.

The claimant’s solicitor stated in a witness statement that the claimant had obtained advice on Dutch law before advancing a claim and had relied on that advice to formulate its case while maintaining it was privileged from disclosure.

The defendants sought disclosure of the advice on the basis that any privilege had been waived by the claimant’s reference the advice in the witness statement.

The court dismissed the application. While the witness statement had said the claimant’s case had been formulated having received Dutch legal advice, it did not quote from or summarise the contents of that advice.

For privilege to be waived, it is necessary for the advice to be “deployed”, meaning the contents of the advice had to be relied on rather than simply referred to.

It’s clear that parties to litigation, perhaps encouraged by case law over recent years, are increasingly likely to challenge a party’s right to assert LPP in documents/communications.

Though the above cases demonstrate that the court still regards LPP as a fundamental pillar of the legal system, thought needs to be given at the earliest stage of a dispute to the steps required to ensure any LPP which would otherwise exist is not inadvertently lost.

Andrew Pavlovic is a senior associate at Russell-Cooke russell-cooke.co.uk