The last of our blogs in relation to the CAA v R (Jet2.Com Limited) decision covers the Court of Appeal’s findings with respect to the following two issues: first, whether, when considering if emails and their attachments are subject to legal advice privilege, they ought to be reviewed as one composite communication, or as separate communications; and secondly, the principle of collateral waiver of privilege.
On the first issue, the answer is “yes”; it is well-established that a document which is not privileged does not become so simply because it is sent to lawyers, even as part of a request for legal advice. That being the case, the Court held that when giving disclosure, some separate consideration of substantive documents and attachments must therefore be undertaken. Whilst an email and attachment can be regarded as a single communication, separate consideration will need to be given to the attachment.
As to the second issue, the Court revisited what it considered to be uncontroversial principles, as follows:
- The voluntary disclosure of a privileged document may result in the waiver of privilege in other material (ie collateral waiver). That does not necessarily mean that privilege in all documents of the same category is waived. However, voluntary disclosure cannot be made in a partial or selective manner (this is sometimes referred to as “cherry picking” documents).
- There are constraints on collateral waiver. The first of these is to ascertain why the disclosed material has been released (this is known as the “transaction test”). Subject to an overriding requirement of fairness, collateral waiver will extend only to documents relating to the specific “transaction” for which the material has been deployed. In assessing what constitutes the relevant “transaction”, the purpose for which the original material has been disclosed will be relevant. It is not the case that all documents that could be said to be relevant to the “transaction” will become automatically waived (in the Peruvian Guano sense of the term used in disclosure); and the “transaction” is not the same as the subject matter of the disclosed material.
- Once the “transaction” is identified, additional principles of fairness may come into play. The application of the principle of fairness will be very fact sensitive and greatly vary from case to case.
On the specific facts, the Court held that the Judge at first instance had construed the “transaction” too widely and, further, that “the purpose of the [disclosure] was modest… it cannot be right that such a modest voluntary disclosure could result in the collateral waiver in respect of all the internal communications relating to the drafting of the [letter], including those that expressly reveal legal advice from CAA’s lawyers; nor is that what the law (or fairness) requires.”