Jet2.Com Ltd, R (On the Application Of) v Civil Aviation Authority

Disclosure in judicial review remains exceptional, but the court retains an independent power to order it where necessary for the fair and just disposal of a factual issue. A public authority’s duty of candour does not make its own account conclusive and does not prevent disclosure. Documents illuminating an alleged improper purpose, including relevant drafts and comparative communications, may therefore be ordered.

Legal advice privilege protects confidential communications made for obtaining or giving legal advice, but does not automatically protect commercial drafts or documents merely because lawyers later review them. The dominant purpose test applies, particularly where in-house lawyers have executive as well as legal roles. Multi-addressee communications depend on their dominant purpose and content.

Jet2.com sought specific disclosure from the Civil Aviation Authority in pending judicial review proceedings. The claim challenged the Authority’s publication of a press release criticising Jet2.com for declining to join a voluntary aviation alternative dispute resolution scheme, and its subsequent publication of correspondence between the parties.

The disclosure application concerned comparative communications with other airlines, communications with the Daily Mail, drafts of the press release, and drafts and internal discussions concerning a subsequent letter to Jet2.com. The central issue was whether disclosure was necessary to resolve fairly the alleged improper purpose of the publications, and, in relation to some documents, whether legal advice privilege applied.

1. Disclosure principles. Disclosure is not ordinarily required in judicial review, but the court retains the power to order it. The public authority’s duty of candour is self-policing and requires a full and accurate account of the facts and reasoning underlying the challenged decision. It does not make the authority’s evidence conclusive. The court, not the authority, decides whether disclosure is necessary for a fair and just disposal.
2. Improper purpose. The Authority’s actual purpose was a factual question to be inferred from all relevant circumstances. Because the issue could turn on nuances, expressions of opinion and the genesis of documents, disclosure of the other airlines’ responses and related internal discussions was necessary. The documents were to be disclosed initially only to Jet2.com’s legal representatives because of possible confidentiality. Disclosure of the Daily Mail communications was not necessary.
3. Drafts. All drafts of the press release were ordered because it was central to the proceedings and its development could illuminate the Authority’s purpose. Drafts of the subsequent letter prepared before the involvement of in-house lawyers were also disclosable. The Authority was directed to reconsider its privilege claims concerning later drafts and related communications and to provide a further witness statement.
4. Legal advice privilege. Privilege applies to confidential communications made for obtaining or giving legal advice and to communications forming part of that legal-advice continuum. It does not protect raw commercial materials merely because they are later sent to a lawyer. The relevant question is whether the document or communication was created with the dominant purpose of obtaining legal advice. In-house lawyers’ involvement does not itself establish privilege.
5. Multiple addressees. An email sent to lawyers and non-lawyers is privileged where its dominant purpose is seeking legal advice and the other recipients are copied for information. It is not privileged, as sent to the non-lawyers, where its dominant purpose is seeking commercial views, unless the communication discloses or may disclose the legal advice sought or given.
6. The application was allowed for category (a), initially on a lawyers-only basis, category (g), and relevant parts of categories (e) and (f). It was dismissed for categories (b) and (c), subject to the further privilege review directed for categories (e) and (f).