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New test for legal advice privilege

Overview

In a recent decision, CAA v Jet2.com, the Court of Appeal has slightly tweaked the test for when legal advice privilege will apply.

Historically, legal advice privilege has covered communications between client and lawyer made for the purpose of giving or receiving legal advice.

However, under the new test, which brings this jurisdiction into line with other common law jurisdictions including Australia, Hong Kong and Singapore, it will only cover communications made for the dominant purpose of giving or receiving legal advice.

Potential consequences?

It is difficult to predict exactly what the consequences of the new test will be. However, our current view is that it is unlikely significantly to narrow the circumstances in which legal advice privilege will apply. That is partly because:

  • "legal advice" in this context will remain widely defined, and will continue to include not only the provision of black letter law advice as what the client's rights and liabilities are, but also advice as to what should prudently and sensibly be done in the relevant legal context; and

  • the "continuum of communications" principle will continue to apply, meaning that where a lawyer is engaged by a client on an ongoing transaction or case, privilege will extend not just to those communications in which legal advice is specifically requested or given, but also to any other communications which are part of the "continuum of communications" between them (such as communications aimed at keeping either one updated so that advice may then be requested or given as necessary). 

That said, the key area of focus for the Court of Appeal in this decision was the application of legal advice privilege to multi-addressee emails sent by a client simultaneously to both lawyers and non-lawyers, in particular in an in-house setting.  The Court was concerned to stress that, if the dominant purpose of such an email was to seek commercial views from the non-lawyer addressees, then it would not be privileged, even if a subsidiary purpose was simultaneously to obtain advice from the lawyer addressees (although any response from the lawyer would be privileged to the extent that it contained legal advice).  It may therefore be that we will now see more scrutiny of such emails, on an email-by-email basis, to test out whether they really have been sent for the dominant purpose of giving or receiving legal advice. 

The Court of Appeal also made clear that the same principles will apply in the context of face-to-face meetings: the mere presence of a lawyer at a meeting, on the off-chance that legal advice may be required, will not render the entire contents of that meeting subject to legal advice privilege.  If the dominant purpose of the meeting is a commercial one, then its contents simply will not be protected (save that any discrete legal advice sought or given during it will likely be severed from the whole and accorded privilege protection).

Practical tips

Although this decision is unlikely significantly to alter the privilege landscape, it does provide a timely reminder of the potential pitfalls of sending multi-addressee emails to both lawyers and non-lawyers, in particular in an in-house context.  In an ideal world, careful thought should be given to the dominant purpose of such emails before they are sent, and if that dominant purpose is to seek legal advice, then that should be made clear up front.  Alternatively, depending on the circumstances, it may be preferable to keep channels of communications with lawyers, and those with business people, separate, accepting that those with the business people will not be privileged.

Ultimately, when it comes to privilege, the best protection is always simply to be aware of the relevant rules and only to create, circulate and label documents with them in mind.

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