When are e-mails to your team and your in-house lawyers disclosable?
In The Civil Aviation Authority v R (Jet2.Com Ltd,  EWCA Civ 35), the Court of Appeal in London has recently given judgment on a dispute about disclosure of some of Civil Aviation Authority’s (“CAA’s”) internal documents and e-mails which CAA claimed were privileged due to the inclusion of their in-house lawyers as addressees. The judgment covered many points, but of particular interest was its finding on how legal advice privilege applies to multi-addressee emails.
It has been established by the courts in previous cases that legal advice privilege is “a fundamental human right long established in the common law. It is a corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice” (R (Morgan Grenfell & Co Limited) v Special Commissioner of Income Tax  UKHL 21 per Lord Hoffman at ). It attaches “to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at a stage when litigation is not in contemplation” (Three Rivers Council v The Governor and Company of the Bank of England (No 6)  UKHL 48 per Lord Roger at ). This distinguishes it from litigation privilege, which applies to communications made between a lawyer and his client, or a lawyer or client and a third party, which came into existence for the dominant purpose of litigation.
Background to the dispute
The correspondence CAA claimed legal advice privilege for comprised some e-mails and drafts of a letter CAA sent to Jet2 on 1 February 2018 responding to Jet2’s objections to a previous press release by the CAA. Both the press release and the CAA letter criticised Jet2’s refusal to participate in an alternative dispute resolution scheme for the resolution of consumer complaints. The CAA then disclosed the letter to a national newspaper who wrote an article about it. Jet2 challenged the CAA’s right to publicise its criticisms and requested disclosure by the CAA of all drafts of its letter of 1 February 2018 and records of discussions of those drafts. The CAA disclosed one e-mail to a number of addressees for their commercial input on a draft reply to Jet2 and another e-mail and draft in reply, which included the in-house legal team among the addressees. The CAA confirmed that there were other drafts and records of discussions which followed but it would not disclose them because its in-house legal team was by that time giving legal advice on them, so it claimed they were privileged. Jet2 objected to this and applied to the High Court for disclosure of the drafts and records, along with certain other requests.
Jet2’s view was that legal advice privilege was akin to litigation privilege in that seeking or providing legal advice had to be the dominant purpose of the document, and that a multi-addressee e-mail or document sent to non-lawyers for their commercial input failed this test either because the dominant purpose was not legal advice, or because the communication with each addressee should be treated as a separate e-mail so the non-lawyers versions were not protected. The CAA opposed this, saying the drafts and e-mails were prepared in the knowledge that a lawyer was going to look at and advise on them so each draft and e-mail sent to and from the lawyer should be privileged, regardless of whether the e-mails also sought commercial input from others. To allow disclosure of the e-mails sent to the non-lawyers would undermine the privilege given to the lawyer’s version, so all of the multi-addressees should be protected.
At first instance, ( EWHC 3364 (Admin)) Morris J found largely in favour of Jet2, leading to CAA’s appeal.
The Court of Appeal decision
In the Court of Appeal, after an extensive review of the relevant case authorities, Lord Justice Hickinbottom confirmed that legal advice privilege was subject to the dominant purpose test. As for multi addressee e-mails, including in-house lawyers, Lord Justice Hickinbottom agreed with Morris J that if the dominant purpose of the communication was, in substance, to settle the instructions to the lawyer then that communication will be covered by legal advice privilege. However, if the dominant purpose was to obtain the commercial views of the non-lawyer addressees, then it would not be privileged, even if a subsidiary purpose was simultaneously to obtain legal advice from the lawyer. An example of this was the e-mail already disclosed which included the in-house legal team for the first time. Multi-addressee communications should accordingly be considered as separate bilateral communications between the sender and each recipient. However, if a non-lawyer’s e-mail might realistically disclose legal advice being requested or given by a lawyer addressee, then that communication will also be privileged but only to the extent of the legal content, so that if the legal part can be redacted from the e-mail, the remainder of it can still be disclosed. He commented that the protection for legal advice was a privilege so those who wanted to take advantage of it should be expected to take proper care when they do so, even if this made it difficult for them to obtain legal and non-legal advice simultaneously in a single email.
The Court of Appeal judgment gives more clarity on how to regard multi-addressee e-mails where legal advice privilege is claimed and identifies the risk of combining more than one purpose in a single e-mail. The solution is to keep e-mails seeking legal advice separate where their purpose is clear. However, in situations where that is not possible, then those parts of the document relating to legal advice should be clearly identified and separated from commercial parts, so that they can be redacted from the disclosure of the commercial contents.