One of the subjects we always discuss with clients at our first meeting with them is how to make sure that the advice we give them stays “privileged” and does not have to be disclosed to their opponent if court proceedings are issued.
There are different kinds of privilege, but the three most commonly encountered are “without prejudice” (used when trying to settle a claim); legal advice privilege, which applies to communications between a client and his lawyer, in confidence, for the dominant purpose of giving legal advice; and litigation privilege, which requires that a document must have been produced for the dominant purpose of pursuing litigation. There is an overlap between legal advice and litigation privilege, but with some important differences.
At the end of last month, the Court of Appeal gave some useful clarification about legal advice privilege generally and specifically about whether the dominant purpose test also applies to legal advice privilege (it does).
The case that the Court of Appeal was considering was Civil Aviation Authority v R (on the application of Jet2.com Ltd). The case concerned the leaking of correspondence, which was critical to Jet2, by the CAA to the Daily Mail. Jet2 sought disclosure of drafts of the leaked documents. The documents in question had been sent by CAA (internally) to both in-house lawyers and non-lawyers. Were the documents privileged? Do in-house lawyers count, for the purpose of legal advice privilege; and did sending the documents to non-lawyers cause privilege to be lost?
The points established by the court are:
- Yes, legal advice privilege covers communications with in-house lawyers as well as external lawyers.
- No, including non-lawyers in the emails does not cause legal advice privilege to be lost, but the dominant purpose of the emails must be to obtain legal advice, not commercial or other advice.
- Legal advice privilege covers any communication which passes on, considers or applies that advice internally, and to third parties – BUT if the client is a corporation, documents between an employee and a lawyer only attract legal advice privilege if it was the employee’s job to seek and receive advice on behalf of the company. So no, you don’t include the post room staff in the email.
- The same principles apply to meetings between non-lawyers and lawyers at which commercial matters are discussed, with lawyers adding legal advice as and when required. Only the legal advice given is privileged, the presence of the lawyer does not automatically make the whole meeting privileged, unless the dominant purpose of the meeting is to obtain legal advice.
In summary, Jet2 has given some welcome clarification on legal advice privilege, but the area remains a minefield for clients, who risk losing privilege in highly sensitive documents unless they are carefully advised.
If you would like advice or assistance on any of the issues raised in this blog please contact Morrisons Solicitors’ Dispute Resolution specialist, Catherine Fisher. Catherine is a Partner in the Dispute Resolution team and can be contacted by email at [email protected]