The Court of Appeal of England and Wales has recently handed down an important and practical decision on the principle and scope of legal advice (as opposed to litigation) privilege. The appeal, made within the context of judicial review proceedings brought by Jet2 against the UK Civil Aviation Authority, raises a number of important issues concerning LAP. They include: (i) whether, for a communication to fall within the scope of LAP, it must have had the dominant purpose of seeking or giving legal advice; and (ii) in the light of the answer to that first question, the proper approach to determining the status (privileged or not) of communications between multiple parties where one of the senders or recipients is a lawyer.
In a series of blogs, of which this is the first, we traverse the principles espoused by the Court of Appeal in detail. Here we briefly summarise the fundamental principles of LAP and the five propositions that the Court of Appeal derived from the relevant authorities. Our second blog explores the Court of Appeal’s findings in relation to propositions 4 and 5 specifically. Our third blog reviews the Court’s practical guidance in relation to multi-addressee communications. Our final blog in this series considers the Court of Appeal’s findings regarding the position as between emails and their attachments, and waiver of privilege.
LAP constitutes an exception to the general rule, in the common law world, that the best probative evidence should be available in order that the Court can fairly dispose of legal proceedings. LAP allows litigants to withhold relevant (possibly crucial) evidence provided the requirements for it are satisfied. It attaches to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice (even at a stage when litigation is not in contemplation).
The Court of Appeal in CAA derived the following five propositions from the authorities, relevant to the appeal:
- LAP applies to communications (written or oral) with in-house lawyers as well as external lawyers.
- LAP applies to communications passing on, considering or applying legal advice.
- LAP applies to legal advice but not to other professional or commercial advice.
- LAP does not apply to material collected by a client (or by his lawyer on his behalf) from third parties or agents for the purposes of instructing lawyers to give advice. Where the relevant client is a corporation, documents or other materials between an employee and a co-employee, even if required to equip lawyers to advise, will not attract LAP unless the employee has been tasked with seeking and receiving legal advice on behalf of the corporation.
- LAP applies only to communications where the purpose of giving or obtaining legal advice is the dominant purpose.
Next up, we consider propositions 4 and 5 in further detail.