The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of)

Legal advice privilege applies only where the dominant purpose of the particular communication or document is obtaining or giving legal advice. The broad meaning of legal advice and the continuum of solicitor-client communications remain relevant, but do not protect a communication whose dominant purpose is to obtain commercial or other non-legal input.

In a multi-addressee email, the communications should ordinarily be considered separately as between sender and each recipient. Communications with lawyers may be privileged, but copying a lawyer into an email principally seeking non-legal views does not protect the communications with non-lawyers. Privilege may protect material that discloses, or might realistically disclose, legal advice.

The Civil Aviation Authority published material criticising Jet2.com Ltd for not joining a voluntary consumer alternative-dispute-resolution scheme. Jet2 brought judicial review proceedings, alleging among other matters that the publications were outside the CAA’s powers and made for improper purposes.

Jet2 sought disclosure of drafts of the CAA’s response to its complaint and records of discussions about those drafts. Morris J ordered disclosure in a judgment reported at [2018] EWHC 3364 (Admin). He later held that disclosure of one internal email had collaterally waived any privilege in the wider chain of relevant internal communications: [2019] EWHC 336 (Admin).

The CAA appealed. The central questions concerned the dominant-purpose requirement for legal advice privilege, multi-addressee emails, attachments, and collateral waiver.

1. Appeal dismissed. Hickinbottom LJ, with whom Peter Jackson and Patten LJJ agreed, held that Morris J was correct to apply a dominant-purpose test to legal advice privilege. A party claiming the privilege must show that the dominant purpose of the particular communication or document was obtaining or giving legal advice. The court rejected the contrary obiter observations in Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd, [2018] EWCA Civ 2006.

2. Legal advice is construed broadly. It includes advice about what should prudently and sensibly be done in the relevant legal context, and communications forming a continuum that keeps lawyer and client informed so that advice may be sought or given. However, the court must assess particular communications, rather than treating a lawyer’s general role or retainer as conclusive.

3. For a multi-addressee email, the court should ordinarily examine separate communications between the sender and each recipient. If the dominant purpose is to settle instructions to the lawyer, the communication is privileged, subject to the rule in Three Rivers Council v The Governor and Company of the Bank of England (No 5), [2003] EWCA Civ 474. If its dominant purpose is to obtain commercial views from non-lawyers, it is not privileged merely because it also seeks a lawyer’s input. A lawyer’s response containing legal advice will almost always be privileged. A communication that might realistically disclose legal advice is also privileged.

4. The disclosed email of 24 January 2018 was not privileged. Its dominant purpose was to obtain non-legal commercial views, not legal advice. The judge was also entitled to require separate consideration of emails and their attachments. A non-privileged document does not become privileged merely because it is sent to a lawyer.

5. The collateral-waiver issue was academic because the relevant documents were not privileged. Nevertheless, the court would have allowed that ground. The transaction was confined to the voluntarily disclosed email. Its modest purpose was to show that an earlier email did not reflect the CAA’s whole approach. Fairness did not require disclosure of all internal communications about drafting the later letter, including communications revealing legal advice.

• Court of Appeal (Civil Division): Dismissed the CAA’s appeals from the disclosure rulings. It held that the relevant documents were not protected by legal advice privilege. It would, if necessary, have held that no wider collateral waiver arose.

• High Court, Administrative Court: Morris J ordered disclosure of drafts and discussion records in [2018] EWHC 3364 (Admin). In [2019] EWHC 336 (Admin), he held alternatively that disclosure of the 24 January 2018 email waived privilege in the wider chain of internal communications.