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11 May 2020 | by LexisNexis Hong Kong

Introduction

A latest English court decision had assessed, clarified and confirmed the dominant purpose test to be the scope of legal advice privilege (“LAP”). In Civil Aviation Authority v R (on the application of Jet2.com Limited), the English Court of Appeal (“CA”) laid its judgment regarding the application of LAP for companies relying on in-house lawyers’ advices through various ways of communication.

Defined both in Greenough v Gaskell (1833) and later confirmed in Three Rivers (No 6) (2004), LAP applies to all confidential communications (i.e. written and oral) between a lawyer and his client made for the purposes of giving or obtaining legal advice. The English CA had also considered the laws of LAP in Hong Kong, Australia and Singapore in reaching its decision.

Facts

Jet2 brought judicial review proceedings challenging the legality of the Civil Aviation Authority’s (“CAA”) decision to publicize a press release and a correspondence involving a letter dated on 1 February 2018 (“Letter”) for Jet2’s refusal to join a new alternative dispute resolution scheme. Jet2 sought disclosure of all the Letter’s drafts and all relevant records of CAA’s communications regarding those drafts, complaining that they were required to understand CAA’s motives and reasons for the publications and that those actions were done for improper purposes.

CAA refused and argued that those relevant documents sought by Jet2 were protected under LAP as their legal counsel involved in those communications advised and prepared the Letter’s drafts. Further, CAA did not waive LAP.

Following Morris J’s judgment back in December 2018, the court held that a claim for LAP was subject to the dominant purpose test, whether the relevant discussion or document was sought for the dominant purpose of obtaining legal advice. The CAA challenged Morris J’s earlier ruling on appeal.

Judgment

The test for LAP and its application to the case

The English CA dismissed the appeal. Lord Justice Hickinbottom held that Morris J was correct in the previous ruling that “the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice.” Further, if the discussions might realistically reveal the legal advice, then the communication would be privileged.

In this case, LAP did not apply to the documents being sought by Jet2 as the dominant purpose was not to seek legal advice. Further, the email or attachment might not realistically disclose the nature of the legal advice being sought from, or given by, the in-house counsel.

LAP application to multi-addressee communications

The dominant purpose test also applies to multi-addressee communications. With regards to an email that is delivered to multiple parties (including lawyers and non-lawyers), if the dominant purpose is to seek and obtain legal advice or to give instructions to the lawyer (even through a commercial context), then the contents in the discussions are privileged. The privilege attaches as well to an email that is delivered for information only but is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the legal advice sought and obtained is a secondary purpose to the commercial advice, then it is not privileged.

If an email that is sent to the non-lawyers might realistically reveal the legal advice or only if the dominant purpose is that of instructing the lawyer, then it would be privileged. Otherwise, the email is not subject to LAP.

A lawyer’s email response copying one or more addressee containing legal advice will almost certainly be privileged as well. For emails including an attachment, LAP will also apply to the email itself as it will inevitably reveal the legal advice sent and received in the form of the attachment.

Meetings or Records of meetings

The English court considered the same principles to apply to meetings and/or to records of meeting. Legal advice sought and given at such meeting will be covered by LAP, but the mere presence of a lawyer that might give legal advice is insufficient to render the whole meeting privileged.

Again, the dominant purpose for conversations in a commercial or non-legal context is not privileged. However, any legal advice sought or given within the meeting may be privileged if the legal advice is separately identified and severable to the commercial context.


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