Dominant purpose test applies to legal advice privilege

The Court of Appeal has just delivered judgment in CAA v Jet2, upholding the principle that the dominant purpose test applies to legal advice privilege (LAP).

This is not the outcome many lawyers – particularly in-house lawyers – would welcome. As Colin Passmore said about the first instance judgment, it is those at the sharp end of dealing with and creating documents where both legal and commercial issues are in play who need to be most alive to these issues. As the Court of Appeal put it:

“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.”

The judgment demonstrates the importance of ensuring that communications to legal advisors should so far as possible be kept separate from commercial communications (as well as marked “privileged”), and care should be taken when circulating documents within the business which deal with, or are communications about, legal issues. Sending documents to mixed (legal and non-legal) recipients for mixed (legal and non-legal) purposes will blur the lines, and may well undermine the claim to privilege over such documents (even if legal advice is being sought from one of the recipients).

One small ray of light is that the Court of Appeal added further support to those who say Three Rivers (No. 5) is incorrect that LAP can only be claimed for communications with employees who have been specifically authorised to seek or receive legal advice. However, these comments were obiter, so the wait for a binding decision to overturn the law in this area continues.