Privilege – a warning on mixed purpose e-mails and meetings

It has always been an accepted part of the test for litigation privilege that, for it to apply, the relevant communication must be for the dominant purpose of preparing for litigation.

The rules for Legal Advice Privilege (LAP) are different. This only applies to communications between lawyer and client which are for the purpose of seeking or giving legal advice. “Legal advice” is construed quite broadly and can include giving advice on a commercial situation “through legal spectacles”. There may also be exchanges that, in the continuum of communications, do not individually seek or give legal advice, but are part of that process.

E-mails to multiple recipients

In CAA v Jet2, the Court of Appeal considered whether emails concerning a draft letter, and sent to multiple recipients, were subject to LAP. Some of the recipients were in-house lawyers and they were included in the distribution list for any legal input. The other recipients were commercial executives whose views were sought on the style and content of the letter.

The Court held that, when considering a communication with multiple purposes to see if it was subject to LAP, the first step was to ascertain its dominant purpose. Only if this was to get legal input from the lawyers, with comments from others being a secondary purpose, would LAP apply. Any response from the lawyer would very likely be privileged, even if sent to the whole distribution list, but the original communication and responses from others would not.

The same analysis will apply to records of meetings. The attendance of a lawyer will not make the record of the entire meeting privileged, though LAP may apply to questions directed to the lawyer and their responses. Only where the dominant purpose of the meeting is to consider the legal position will records of the whole meeting benefit from LAP.

There is one further possibility for LAP to apply: if a communication “discloses or is likely to disclose the nature and content of the legal advice sought and obtained”, it may still be privileged.

This judgment ends an academic debate that has run for some time. Only in 2018 a differently constituted Court of Appeal in ENRC indicated a contrary view on whether dominant purpose applied to LAP, but while those comments were obiter, the CAA v Jet2 decision is binding.

Practical implications

• Additional care is needed to ensure privilege is maintained in communications to lawyers where non-lawyers are copied in;

• Particular scrutiny will be paid to communications involving in-house lawyers, who are more often copied into mixed-purpose emails and whom the courts view as more likely to be asked for commercial as well as legal advice;

• LAP is best protected by separating communications on the legal position from those on non-legal issues;

• Consider the agenda for meetings where legal issues are to be discussed. If the legal issues are not the dominant purpose of the meeting, there is a risk of privilege being lost. A separate meeting, or a distinct section of a meeting, which could be redacted from any records, will be preferable;

• When reviewing potentially privileged documents in a disclosure exercise, the dominant purpose test must be applied to communications with mixed purposes, most often e-mails to multiple recipients.

Who is the client? One step closer …

Though it was of peripheral relevance, the Court devoted several paragraphs of its judgment to express doubts about the test for who is the client for LAP purposes, as set down in Three Rivers (No 5). That case limited people who can be considered the client within a company to those authorised to seek legal advice, meaning communications by lawyers with others in the company cannot benefit from LAP.

While not able to overturn that authority (only the Supreme Court can do that), this is the second time that the Court of Appeal has indicated that this test is unreasonably narrow and creates difficulties within large commercial organisations. The invitation for a party to challenge Three Rivers (No5) in the Supreme Court could not be clearer.