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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of)  EWCA Civ 35 (28 January 2020)
Cite as:  EWCA Civ 35,  4 All ER 374,  WLR(D) 51,  QB 1027,  2 WLR 1215
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HON MR JUSTICE MORRIS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HICKINBOTTOM
LORD JUSTICE PETER JACKSON
| THE CIVIL AVIATION AUTHORITY
- and –
|THE QUEEN ON THE APPLICATION OF JET2.COM LIMITED
- and -
|THE LAW SOCIETY OF ENGLAND AND WALES
(instructed by Mayer Brown International LLP) for the Appellant
Charles Béar QC and Nicolas Damnjanovic (instructed by Norton Rose Fulbright LLP)
for the Respondent
David Pievsky (instructed by The Law Society of England and Wales)
(written submissions only) for the Intervener
Hearing dates: 4 and 5 December 2019
Crown Copyright ©
Lord Justice Hickinbottom :
"This subject is always a difficult one. On the one hand I have to consider the right of the Plaintiff to discovery, and on the other hand, to consider what are the rights of the Defendants to protect themselves against disclosing anything that has taken place in the course of confidential communications" (Wheeler v Le Marchant (1881) 17 Ch D 675 at page 677).
In the event, the Vice Chancellor held that letters which passed between solicitors and surveyors in relation to the grant of a lease, sent with no litigation active or contemplated, were privileged from disclosure in later proceedings for the specific performance of the lease. Four days later, the Court of Appeal disagreed concluding that the letters were disclosable, and overturned his judgment. Since then, the subject has not become any more straightforward. Indeed, given the more complex arrangements that now exist for commercial transactions and the obtaining of legal advice, including new modes of communication between those involved in such activities, the difficulties have been compounded.
i) whether, for a communication to fall within the scope of that privilege, it must have had the dominant purpose of seeking or giving legal advice; and
ii) in the light of the answer to (i), the proper approach to determining the privileged status of email communications between multiple parties where one of the senders or recipients is a lawyer.
It also potentially raises issues concerning the proper approach to the collateral waiver of privilege in respect of documents otherwise non-disclosable, as the result of the voluntary disclosure of other privileged documents.
The Factual Background
"… Jet2, the Leeds-based airline, one of the largest UK airlines, has 'inexplicably and persistently' refused to sign up – denying its customers access to a fair arbitration service, which can legally resolve disputed complaints fairly and efficiently".
The internal quotation was a reference to observations by Andrew Haines, the CAA's Chief Executive Officer, whom the Press Release quoted more fully, as follows:
"… ADR is good for UK consumers, which is why it is extremely disappointing that Jet2, one of the UK's largest airlines, has so far inexplicably and persistently refused to sign up, denying their passengers access to an independent arbitration service.
Clearly this decision puts Jet2's customers, and those of other airlines that haven't yet signed up, at a distinct disadvantage, and in many cases, could mean their passengers are denied the fundamental rights they are entitled to.
I am therefore calling on Jet2 and other airlines including Aer Lingus and Emirates to commit to ADR in the interests of their passengers".
"We should develop a narrative around Jet2. They have been (one of) the most litigious airline disputing 261, threatening legal action against the CAA. References to their billionaire chairman might not go amiss in the process. We could share it with Jet2 as our rebuttal of any continuation of such misleading information.
Attack dogs please Lord S"
"261" is a reference to Regulation No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. "Lord S" is a reference to Mr Stephenson, the inference of the last line of the email being that Mr Haines wished to see vigorous positive media publicity in response to Jet2's stance.
"I wouldn't quite call it 'attack dog' style. More of a cranky alpaca.
Anyway, see what you think. I'd like to get it to [Mr Haines] and [Mr Stephenson] by cop Thursday if possible."
That is the only draft of that letter that was before Morris J (or is now before us); although, as will shortly be apparent, there were other drafts and internal communications within the CAA before the response was finalised.
"Your letter was surprising and extremely disappointing on two fronts; your apparent disregard for the rights of customers when your levels of service fall below that which you say you aspire to and secondly the poor and inconsistent case you make in seeking to defend, what I regard, as your indefensible position.
It is unfortunate that you chose to put forward such a transparently narrow and self-interested set of arguments against ADR but, more importantly, the arguments are redundant for the reason I set out below".
In dealing with the arguments Mr Meeson had put forward in his earlier letter, Mr Haines repeated the criticism of denying customers their fundamental rights and asserted that, in publishing the Review and Press Release, the CAA was pursuing a proper purpose by drawing attention to Jet2's ongoing failure to participate in the ADR Scheme. Mr Haines concluded by reserving the right to publish the correspondence between the CAA and Jet2 on the issue.
i) The publications by the CAA were ultra vires. Whilst section 83 of the Civil Aviation Act 1982 gives the CAA the power to publish information and advice for the purpose of assisting consumers to compare services and facilities used in connection with the use of air transport services or with a view to improving the standards of such services, it does not give it the power publicly to criticise Jet2 for choosing not to participate in the new ADR Scheme. Thus, the CAA had no power to issue the Press Release or to publicise the correspondence as it did.
ii) In publishing the Press Release and the correspondence, the CAA acted for unauthorised purposes, namely to damage Jet2's trading interests and reputation by singling it out for severe criticism and thereby punishing Jet2 for its decision not to join the new scheme and to put pressure on Jet2 to take the voluntary step of joining the scheme. Alternatively, by acting in such a way, the CAA took into account such matters, which were irrelevant.
iii) The publications were made in breach of the duty of procedural fairness.
iv) The decision to publish was irrational.
This appeal particularly concerns (i) and (ii).
"… The phrase 'billionaire chairman' in the first paragraph was a reference to Mr Meeson. I consider that it was inappropriate to suggest that any part of the CAA's 'narrative' should be making reference to any individual in this way, and Mr Haines also acknowledges that it was inappropriate to have made such a reference. The CAA does not and should not make negative personal comments about individuals within businesses, and in fact, no comment about Mr Meeson personally was made externally by the CAA. The phrase 'attack dogs' in the second paragraph was a reference to pressing on with the CAA's media publicity. 'Lord S' is a reference to Mr Stephenson. Mr Haines' passion for consumer rights did, on occasion, lead him to express himself in colourful terms. This email was not reflective of any part of the approach taken by the CAA. This can be seen from an email sent to Mr Haines by one of my colleagues, Mr Buffey, and from the content of the material that we published."
The email to which Mr Moriarty refers was exhibited to his statement. It was not in fact to Mr Haines, but was the email of 24 January 2018 to Mr Moriarty, Ms Knight and Ms Lim, quoted at paragraph 13 above.
i) Claims to LAP are subject to a dominant purpose test. In respect of that proposition, Morris J cited and relied upon the following:
a) Three Rivers Council v The Governor and Company of the Bank of England (No 5)  EWHC 2730 (Comm);  CP Rep 34 (the first instance judgment of Tomlinson J ("Three Rivers (No 5) (Comm Ct)"), itself citing Hellenic Mutual War Risks Association (Bermuda) Limited v Harrison (The Sagheera)  1 Lloyd's Rep 160 ("The Sagheera") at pages 167-8);
b) Three Rivers Council v The Governor and Company of the Bank of England (No 5)  EWCA Civ 474;  QB 1556 (the judgment of this court (Lord Phillips of Matravers MR, Sedley and Longmore LJJ) on appeal from Tomlinson J ("Three Rivers (No 5)") at , as commended by Lord Carswell in Three Rivers Council v The Governor and Company of the Bank of England (No 6)  UKHL 48;  1 AC 610 ("Three Rivers (No 6)") at );
c) the judgment of Moore-Bick J in United States of America v Philip Morris Inc  EWHC 3028 (Comm) ("Philip Morris (Comm Ct)") at ; and
d) the textbook "Documentary Evidence" by Charles Hollander QC (13th Edition) ("Hollander") at paragraph 17-16.
From these authorities, the judge concluded (at [95(4)]) that:
"Whilst I am aware of academic commentaries suggesting that the point is not free from doubt, in my judgment, on the current state of the authorities and obiter observations in the Court of Appeal, claims for [LAP] are, in principle, subject to a dominant purpose test, namely whether the communication or document was brought into existence with the dominant purpose of it or its contents being used to obtain legal advice."
ii) Therefore (also at [95(4)]):
"… [I]n normal cases of an email sent to an external lawyer, the issue of dominant purpose is unlikely to arise…. However, the issue may be more acute where material is sent to in-house lawyers, who may have a dual role in the company. Lawyers, particularly in-house solicitors, may often take part in general business discussions which do not involve legal advice. Where the in-house lawyer is clearly being asked for legal advice, privilege is likely to attach. However, where the in-house lawyer is being consulted also as an executive about a largely commercial issue, then the dominant purpose test will fall to be applied."
iii) With regard to communications sent to multiple addressees, some of whom are lawyers and some of whom are not, he said that the position was not established by authority; but, he continued (at [95(5)]):
"In my judgment, if the dominant purpose of the email is to seek advice from the lawyer and others are copied in for information only, then the email is privileged, regardless of who it is sent to. If on the other hand, the dominant purpose of the email is to seek commercial views, and the lawyer is copied in, whether for information or even for the purpose of legal advice, then the email, in so far as it is sent to the non-lawyer, is not privileged. Further, if sent to the non-lawyer for a commercial comment, but sent to the lawyer for legal advice, then, in my judgment, the email is not protected by privilege, unless it or the non-lawyer's response discloses or might disclose the nature of the legal advice sought and given."
"99. Against this background and applying the above principles, any draft of the 1 February letter created before the [CAA's] in-house lawyers were consulted or created without any involvement of in-house lawyers is not privileged. That is the case, even if it were known that in due course legal advice would be taken on the draft, unless the dominant purpose of the person creating the draft was to seek legal advice on it.
100. Further drafts of the 1 February letter are not covered by privilege unless specifically drafted by the lawyers or for the dominant purpose of obtaining legal advice. Such drafts do not subsequently attract privilege when they were shown to the in-house lawyers. However if a particular draft was created by the in-house lawyers, or by another specifically for the purpose of seeking or giving legal advice then that draft will be privileged.
101. On the basis that the [CAA's] in-house lawyers were instructed for the purposes of obtaining legal advice, then any communication with those lawyers (to and fro) and including comments and advice on the draft letter (whether on the document itself or in a covering communication) are covered by [LAP]. Moreover any further communication between non-lawyer executives which discloses or might disclose or concerns comments and advice from the in-house lawyers in relation to the draft of the 1 February letter is also covered by legal advice privilege.
102. Where a draft of the 1 February letter (or even discussion about such a draft) was sent in one email to both in-house lawyers and other non-lawyer personnel within the [CAA] (such as the email of 24 January which has already been voluntarily disclosed), then, even assuming that in so far as the email was sent to the in-house lawyer it is privileged, in so far as it is also sent to a non-lawyer, neither the email nor the response of the non-lawyer is protected by [LAP], unless the content of the email, or the response from the non-lawyer, discloses or is likely to disclose the nature and content of the legal advice sought and obtained. If the email to the non-lawyer clearly seeks, and the response provides, commercial views, with no connection to the legal advice, then it is not covered by [LAP]; here the dominant purpose of the email, as sent to the non-lawyer and any enclosed draft was to obtain commercial views. The email of 24 January falls into this category. (I add that if, contrary to the foregoing, a multi-addressee email of this type is in principle covered by privilege, there would be a strong argument that, assuming Ms Lim was copied in for the purpose of seeking legal advice, in any event by disclosing the email of 24 January the [CAA] has, in this case, waived privilege in this class of document)."
"(a) First, one asks: is the dominant purpose of the multi-addressee email or an attachment to a multi-addressee email to seek or give legal advice? If so, then the email or the attachment to that email, as the case may be, is privileged.
(b) If the answer to subparagraph (a) above is no, then one asks: does the email or the attachment disclose; or is it 'likely' to disclose; or 'might' it disclose, the nature and content of the legal advice sought from, or given by, the in-house lawyer? If so, the email or attachment to that email is privileged. I have understood the word 'might', as connoting a realistic possibility."
In my view, Ms Brooks was correct to construe Morris J's judgment as applying to documents and communications which would, or might realistically, disclose legal advice. It seems to me that he was using "likely" in that sense (rather than as meaning more likely than not).
"CAA claims privilege on the basis that the email forms part of the continuum of communications between a client and lawyer, for the purposes of seeking or receiving legal advice".
The concept of a "continuum of communications between a client and lawyer" derives from Balabel v Air India  Ch 317 ("Balabel"), to which I shall return shortly (see paragraph 62 and following below).
"As regards the 'transaction', the issue between the parties is whether the transaction is limited to the email itself or whether it is the course of correspondence and discussion. Whilst in some cases the transaction may be limited to the document disclosed itself, I do not accept that that is the position here. The transaction must, at the very least, include the preceding 'attack dogs' email from Mr Haines. Indeed, the transaction or issue in respect of which the disclosure was made by Mr Moriarty is the approach taken by the CAA in response to [the] 16 January letter. That involved a single process of internal discussion, which does not have discrete parts, and the email of 18 January and the email of 24 January form part of that single process. The fact that the process of discussion took place by way of emails is not of itself a basis for distinguishing it from circumstances where the discussion may have taken place in an oral conversation at one and the same time."
He consequently concluded that the transaction in question comprised all drafts of the 1 February 2018 letter, and emails and internal discussion about those drafts, in the period between the 16 January letter to the publication of the Daily Mail article on 7 February 2018; and fairness required disclosure of the entire chain of discussion whether or not individual documents include legal advice (see -).
Ground 1: He erred in holding that claims for LAP are in principle subject to a dominant purpose test, i.e. that the privilege will only apply where the document or other communication was brought into existence with the dominant purpose of it or its contents being used to give or seek legal advice.
Ground 2: Particularly as the result of the dominant purpose test which he applied, he erred with respect to the proper approach to be adopted when considering whether multi-addressee communications (notably emails from or to both lawyers and non-lawyers) are protected by LAP.
Ground 3: He erred in holding that an assessment of whether an email and any attachment must be carried out discretely and without reference to any attachment or covering email respectively.
Ground 4: In a separate appeal in respect of the February 2019 judgment (which is contingent upon the CAA succeeding, under Grounds 1-3, in showing that the drafts etc were privileged), the CAA contend that the judge erred in his approach to collateral waiver. In particular, the judge incorrectly found that the relevant "transaction" for the purposes of collateral waiver extended to all emails and internal discussions in the period from the 16 January 2018 letter up to the publication of the Daily Mail article on 7 February 2018, in that the voluntary disclosure of the 24 January 2018 email resulted in the collateral waiver of privilege in respect of all those documents.
Legal Advice Privilege
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests."
"… [Legal professional privilege] is a fundamental human right long established in the common law. It is a corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of [Lord Taylor in ex parte B]. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the [European Convention on Human Rights] (Campbell v United Kingdom (1992) 15 EHRR 137; Foxley v United Kingdom (2000) 31 EHRR 637) and held by the European Court of Justice to be part of Community law (A M & S Europe Limited v Commission of the European Communities (Case 155/79)  QB 878)."
"None of these judicial dicta tie the justification for [LAP] to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law of privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else (see also paragraphs 15.8-15.10 of Zuckerman's Civil Procedure (2003) where the author refers to the rationale underlying legal advice privilege as 'the rule of law rationale'). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of [LAP] in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material."
"… [LAP] 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".
As Mr Grodzinski submitted, it is therefore necessary for the party seeking to rely on the right to withhold evidence to satisfy the criteria of each of four elements: there must be (a) a communication (whether written or oral); (b) between a client and a lawyer, or a lawyer and his client; (c) made in confidence; (d) for the purpose of giving or obtaining legal advice.
"It is said that as communications between a client and his legal advisers for the purpose of obtaining legal advice are privileged, therefore any communication between the representatives of the client and the solicitor must be also privileged. That is a fallacious use of the word 'representatives'. If the representative is a person employed as an agent on the part of the client to obtain the legal advice of the solicitor, of course he stands in exactly the same position as the client as regards protection, and his communications with the solicitor stand in the same position as the communications of his principal with the solicitor. But these persons were not representatives in that sense. They were representatives in this sense, that they were employed on behalf of the clients, the defendants, to do certain work, but that work was not the communicating with the solicitor to obtain legal advice. So their communications cannot be protected on the ground that they are communications between the client by his representatives and the solicitor. In fact, the contention of the Respondents comes to this, that all communications between a solicitor and a third person in the course of his advising his client are to be protected. It was conceded there was no case that went that length, and the question is whether, in order fully to develop the principle with all its reasonable consequences, we ought to protect such documents. Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And that is reasonable, because then the solicitor is preparing for the defence or for bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected. But here we are asked to extend the principle to a very different class of cases, and it is not necessary, in order to enable persons freely to communicate with their solicitors and obtain their legal advice, that any privilege should be extended to communications such as these."
Therefore, as Longmore LJ said in Three Rivers (No 5) (at ):
"This case thus makes clear that [LAP] does not extend to documents obtained from third parties to be shown to a solicitor to advise."
"By the end of the 19th century it was, therefore, clear that [LAP] did not apply to documents communicated to a client or his solicitor for advice to be taken upon them but only to communications passing between that client and his solicitor (whether or not through any intermediary) and documents evidencing such communications."
"We can fully accept that the Court of Appeal could have decided Three Rivers (No 5) on the simple basis that Freshfields' client was the BIU (not the Bank), and the documents had been prepared by the Bank (not the BIU), so that the position of the particular Bank employee who had prepared them was irrelevant to the question of [LAP]. We do not, however, think that, fairly read, that was the Court of Appeal's reasoning. As we have explained, it seems to us that Longmore LJ reasoned that, because agents and employees, on authority, stood in the same position in relation to legal professional privilege, once it was established that only communications between the lawyer and the client, and not between the lawyer and an agent of the client, could attract [LAP], communications between a lawyer and an employee of the client (other than employees specifically tasked with seeking and receiving legal advice) could also not be privileged. As we have said, we are not sure that it is necessary for us to determine whether this reasoning was the ratio decidendi, but if that did have to be decided, we would hold that it was."
"This last passage makes clear that large corporations need, as much as small corporations and individuals, to seek and obtain legal advice without fear of intrusion. If legal advice privilege is confined to communications passing between the lawyer and the 'client' (in the sense of the instructing individual or those employees of a company authorised to seek and receive legal advice on its behalf), this presents no problem for individuals and many small businesses, since the information about the case will normally be obtained by the lawyer from the individual or board members of the small corporation. That was the position in most of the 19th century cases. In the modern world, however, we have to cater for legal advice sought by large national corporations and indeed multinational ones. In such cases, the information upon which legal advice is sought is unlikely to be in the hands of the main board or those it appoints to seek and receive legal advice. If a multi-national corporation cannot ask its lawyers to obtain the information it needs to advise that corporation from the corporation's employees with relevant first-hand knowledge under the protection of [LAP], that corporation will be in a less advantageous position than a smaller entity seeking such advice. In our view, at least, whatever the rule is, it should be equally applicable to all clients, whatever their size or reach. Moreover, it is not always an answer to say that the relevant subsidiary can seek the necessary legal advice and, therefore, ask its own lawyers to secure the necessary information with the protection of legal advice privilege. In a case such as the present, there may be issues between group companies that make it desirable for the parent company to be able to procure the information necessary to obtain its own legal advice."
i) Three Rivers (No 5) does not appear to allow for any caveats to the proposition that material sent by a third party/agent/employee to a lawyer (and vice versa) is not covered by LAP. However, where lawyers are instructed, the individual within a corporation instructing them must be able to ensure that the instructions are in accordance with the wishes of the senior executives in the company, which may involve input from more junior employees who are knowledgeable about the relevant issues. Internal communications settling instructions must be covered by LAP. It is unclear to me how the proposition in Three Rivers (No 5) quite allows for that.
ii) For no obvious reason, the law in relation to LAP as set out in Three Rivers (No 5) in respect of collection of information for the instruction of lawyers appears to be out of line with the law in respect of the dissemination of advice from lawyers, once received (i.e. Proposition 2, as described in paragraph 45 above).
"… [T]here can be no real doubt as to the present state of the law in this context…: Three Rivers (No 5) confines legal advice privilege to communications between lawyer and client, and the fact that an employee may be authorised to communicate with the corporation's lawyer does not constitute that employee the client or a recognised emanation of the client."
"Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as 'please advise me what I should do'. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.
It may be that applying this test to any series of communications might isolate occasional letters or notes which could not be said to enjoy privilege. But to be disclosable such documents must be not only privilege-free but also material and relevant. Usually a letter which does no more than acknowledge receipt of a document or suggest a date for a meeting will be irrelevant and so non-disclosable. In effect, therefore, the 'purpose of legal advice' test will result in most communications between solicitor and client in, for example, a conveyancing transaction being exempt from disclosure, either because they are privileged or because they are immaterial or irrelevant."
"… [A]ll communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client."
"If part of a solicitor's duties embrace the giving of legal advice on his client's rights, liabilities and obligations, and a further significant part of his duties relate to activities which cannot be so characterised, then the two recent decisions of this court in the Three Rivers cases [i.e. Three Rivers (No 5) and Three Rivers (No 6) in the Court of Appeal [ EWCA Civ 218;  QB 916]: it had not yet then reached the House of Lords] show that it is too simplistic to refer to a dominant purpose of the original retainer, or to try and identify the dominant purpose of a role assumed over a number of years, involving the solicitor in many different activities." (ibid).
Three Rivers (No 5) also said that authority did not justify a shift of focus from the dominant purpose for which a document is prepared to the "dominant purpose of the retainer" (see ). I will return to what Three Rivers (No 5) and Three Rivers (No 6) did say about "dominant purpose" shortly (see paragraphs 84 and following below).
i) Consideration of LAP has to be undertaken on the basis of particular documents, and not simply the brief or role of the relevant lawyer.
ii) However, where that brief or role is qua lawyer, because "legal advice" includes advice on the application of the law and the consideration of particular circumstances from a legal point of view, and a broad approach is also taken to "continuum of communications", most communications to and from the client are likely to be sent in a legal context and are likely to be privileged. Nevertheless, a particular communication may not be so – it may step outside the usual brief or role.
iii) Similarly, where the usual brief or role is not qua lawyer but (e.g.) as a commercial person, a particular document may still fall within the scope of LAP if it is specifically in a legal context and therefore, again, falls outside the usual brief or role.
iv) In considering whether a document is covered by LAP, the breadth of the concepts of legal advice and continuum of communications must be taken into account.
v) Although of course the context will be important, the court is unlikely to be persuaded by fine arguments as to whether a particular document or communication does fall outside legal advice, particularly as the legal and non-legal might be so intermingled that distinguishing the two and severance are for practical purposes impossible and it can be properly said that the dominant purpose of the document as a whole is giving or seeking legal advice.
vi) Where there is no such intermingling, and the legal and non-legal can be identified, then the document or communication can be severed: the parts covered by LAP will be non-disclosable (and redactable), and the rest will be disclosable (see, e.g., Curlex Manufacturing Pty Limited v Carlingford Australia General Insurance Limited  Qd R 335 and GE Capital Corporate Finance Group Limited v Bankers Trust Company  1 WLR 172).
vii) A communication to a lawyer may be covered by the privilege even if express legal advice is not sought: it is open to a client to keep his lawyer acquainted with the circumstances of a matter on the basis that the lawyer will provide legal advice as and when he considers it appropriate.
Ground 1: Legal Advice Privilege and Purpose
"Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection" (emphasis added).
That test was ultimately adopted in Australia, for both limbs of the privilege, in Esso Australia Resources Limited v Commissioner of Taxation  HCA 67; 201 CLR 49 ("East Australia Resources"). In Australia, it is now well-established that the dominant purpose test applies to LAP (see, e.g., AWB Limited v Cole  FCA 571).
i) In Waugh, on the basis of the defendant's contentions, both litigation privilege and LAP applied, the issue being whether the report had been prepared for the purpose of procuring legal advice in respect of anticipated litigation.
ii) In Waugh, the majority of their Lordships approved the relevant passage from Barwick CJ's judgment in Grant v Downs: see Lord Wilberforce at pages 532-3, Lord Simon of Glaisdale at pages 534 and 537, and Lord Edmund-Davies at pages 543-4.
iii) In respect of the relevant purpose test, Grant v Downs did not draw any distinction between litigation privilege and LAP. In my view, that is clear from the words used by Barwick CJ; but that view has been confirmed in The Sagheera at page 167, Three Rivers (No 5) (Comm Ct) at  and -, and Slade LJ in the leading judgment in Guinness Peat Properties Limited v Fitzroy Robinson Partnership  1 WLR 1027 at pages 1043F-1035A. On one reading of the judgment of Longmore LJ in Three Rivers (No 5) at -, he considered that that interpretation was incorrect, and, when properly read, Barwick CJ was restricting himself to a principle that applied to litigation privilege only; but:
a) in my respectful view, the words used by Barwick CJ were unambiguous; on their face, they were intended to apply to both limbs of legal professional privilege;
b) if they were intended to apply to both limbs of legal professional privilege, I do not see how that is in any conflict with Wheeler v Le Marchant which concerned a different aspect of LAP (i.e. whether it applied to communications that did not concern legal advice);
c) the interpretation of Barwick CJ's words adopted in Three Rivers (No 5) fails to take into account the judgment of the majority (at page 682), which applied the sole purpose test to both limbs of the privilege;
d) as I have described, it is not the interpretation put on those words by other courts in this jurisdiction; and
e) importantly, in the face of those observations in Three Rivers (No 5), the Federal Court of Australia has expressly denied that that interpretation is correct, stating that the principle formulated by Barwick CJ "was intended to be declaratory of the law for the future; was stated compendiously; and had equal application to both manifestations of the privilege" (Pratt Holdings Pty Limited v Commissioner of Taxation  FCAFC 122 at  per Finn J).
iv) Whilst I accept that Waugh was decided on the basis that litigation privilege applied, none of their Lordships suggested that there was a distinction between litigation privilege and LAP in this regard. Indeed, in applying Grant v Downs, if anything, it seems to me that overall they suggested that there was no distinction (see, e.g., at page 532H per Lord Wilberforce, and at page 543B per Lord Edmund-Davies). In my view, there is force in the observation of Tomlinson J in Three Rivers (No 5) (Comm Ct) at , where he said:
"I do not regard it as plausible to suggest that their Lordships did not appreciate that the test which they were approving was stated in terms which apparently embraced legal professional privilege in both its manifestations, [LAP] and litigation privilege. It would I think be surprising if their Lordships uncritically adopted a passage of such apparent generality if they thought that a different approach was called for in relation to [LAP] to which the passage apparently, or at any rate on one obvious reading, made reference."
"131. The SFO submitted that it should in any event be held that, if information passed to a company's lawyers by employees who were not authorised to seek and receive legal advice could be the subject of legal advice privilege, a further qualification should be added, namely that the information must be shown to have been obtained for the dominant purpose of obtaining legal advice. This, submitted Mr James Segan for the SFO, was established by a line of cases including, for example, The Sagheera... at page 168, Three Rivers (No 5) [(Comm Ct)]… at , ,  and , and Philip Morris [in the Court of Appeal] at  and .
132. In the light of the approach that we have adopted thus far to legal advice privilege, it would not be appropriate to reach any final conclusion on this submission. In our judgment, however, it is hard to see why the suggested additional qualification is necessary, when the privilege can, by definition, only be claimed when legal advice is being sought or given. It is one thing to say that litigation privilege can only be claimed where the communication is created for the dominant purpose of the litigation, but entirely another to say that legal advice privilege can only be claimed where the communication is created for the dominant purpose of seeking legal advice. The second is tautologous."
i) The observations made by the court were clearly obiter: indeed, the court expressly indicated that it was inappropriate to reach a conclusion on the issue in that case.
ii) The court did not consider any of the authorities on the issue, domestic or overseas. Particularly given the preponderance of authority in favour of the dominant purpose test applying, I consider that this substantially detracts from the persuasive weight of these observations.
iii) The court considered that the qualification that the purpose had to be "dominant" was unnecessary and "tautologous" because LAP can "only be claimed when legal advice is being sought or given". However, litigation privilege can only apply when litigation is pending or in reasonable contemplation and, in terms of rationale, there appears to me to be no relevant difference in principle between the two limbs of the privilege. Eurasian concerned external lawyers, whose role was to provide legal advice; and the court does not appear to have considered the possibility of a document being created, as here, partly for the purpose of obtaining legal advice but partly for some other reason such as obtaining non-legal advice. This possibly reflects other cases which appear to fail to take into account the possibility that a communication to a lawyer to obtain legal advice may be part of a multi-addressee email which also seeks advice/input from non-lawyers, which is the case before us.
i) Passmore (at paragraph 2-100) accepts that the dominant purpose test as an element of LAP "received a measure of approval" in Three Rivers (No 5); but submits that "the approach of the House of Lords to the identification of legal advice [in Three Rivers (No 6)] is such that the dominant purpose test has no obvious role to play in determining claims for [LAP] under the law of England and Wales, which is now concerned only with establishing a 'relevant legal context' in which legal advice is sought or given". I agree that Three Rivers (No 5) gives support to the inclusion of the test; but, for the reasons I have given, I do not agree that the requirement for the establishment of a "relevant legal context" avoids the need for consideration of the purpose element.
ii) Thanki suggests "tentatively" that the House of Lords in Three Rivers (No 6) did not consider that dominant purpose had any application to "pure" lawyer-client communications (paragraph 2.177); but accepts that, even if that be the case, "where a communication is not purely between lawyer and client but between lawyer and client and another party or parties (for example a group of professional advisers) [i.e. this case], the dominant purpose test must apply" (paragraph 2.184).
iii) Hollander submits that there is no suggestion in Three Rivers (No 6) that dominant purpose has any role to play in LAP (paragraph 17-16); but, in respect of documents sent to multiple addressees, submits that these should be treated as separate communications as between the various participants (rendering the principle of dominant purpose in this context redundant). For the reasons I have given, it seems to me that, in most cases, this approach will, if applied correctly, result in the same result as applying a dominant purpose test; and, in any event, on that basis, the relevant emails passing between non-lawyers will be disclosable.
i) He stressed the importance of the privilege to the rule of law: he submitted that, if the dominant purpose test applies, then some communications between client and lawyer which have as a purpose the giving or obtaining of legal advice will be disclosable, undermining the whole purpose of the privilege. However, legal professional privilege is an important but, as I have indicated (paragraph 39 above), not an absolute principle. As I have indicated, where the material over which privilege is claimed is crucial to an issue in proceedings, it potentially undermines the fairness of a trial. The common law is not bound to acknowledge a right to withhold evidence that would otherwise be disclosable simply because the relevant material has, as simply one, minor purpose, the obtaining of legal advice, without consideration of the respective weight of purpose. It is entitled to balance the public interest in these respective principles, and draw a line between them. Otherwise, as Mr Béar submitted, swathes of internal and external material could be excluded from disclosure simply because a lawyer had been copied in and asked for his legal advice as and when he considered it appropriate to give it.
ii) Mr Grodzinski submitted that the logic of privilege in a communication being lost by reason of it being copied to non-lawyers is contrary to the principle that a privileged document in the form of legal advice may be circulated internally (and even, in some circumstances, to third parties) without that privilege being lost. I accept that that is the case; but, as I have described, that is the result of Three Rivers (No 5) taking the view it did take over the collection of material for the purposes of briefing lawyers (see paragraphs 47 and following above).
iii) Mr Grodzinski accepts that LAP requires some control mechanism; but submits that it is found in the "definition" of LAP found in Lord Carswell's speech in Three Rivers (No 6) (see paragraph 63 above), namely in the requirement that the lawyer is sent the communication for the purposes of giving legal advice. He submitted that the inclusion of a dominant purpose criterion into LAP is unnecessary, and would mean that requests for advice and input made simultaneously to lawyers and other, non-lawyer executives would effectively result in the loss of LAP in the communications with the lawyers. Properly, he submitted, all such communications should be regarded as part of the "continuum of communication" between client and lawyers, and so be covered by LAP. However, for the reasons I set out under Ground 2, I do not consider this point to have any real force. In particular, it is to be noted that, in Three Rivers (No 6) at , Lord Carswell was especially addressing the issue of the ambit of "legal advice"; and, as Lord Carswell himself observed (at ), in construing judicial pronouncements, context is vital. In particular, he clearly did not have in mind the possibility of (e.g.) simultaneous communications by a single email to lawyers and non-lawyers. I was unimpressed by the submission that the result I favour will make life difficult for those who wish to obtain legal and non-legal advice simultaneously, because (a) there is no indication that that causes a problem in other Commonwealth countries, such as Australia and Singapore, which have adopted the dominant purpose test for LAP, and (b) LAP is a privilege, and those who wish to take advantage of it should be expected to take proper care when they do so.
i) Although they do have some different characteristics, litigation privilege and LAP are limbs of the same privilege, legal professional privilege. It is uncontroversial that the dominant purpose test, grown out of Grant v Downs, applies to litigation privilege. For the reasons I have given, I am unpersuaded that Eurasian is correct to consider the limbs as fundamentally different with regard to purpose. In my view, there is no compelling rationale for differentiating between limbs of the privilege in this context. The "dominant purpose" test in litigation privilege fixed by Waugh derives from Australian jurisprudence, which has since Grant v Downs treated the purpose test (whatever it might be) as applying to both limbs of the privilege.
ii) Whilst I accept that the position is not uniform, generally the common law in other jurisdictions has incorporated a dominant purpose test in both limbs of legal professional privilege, e.g., in addition to Australia above (considered above: see paragraphs 74-75), Singapore (Skandinaviska Enskilda Banken AB v Asia Pacific Breweries  2 SLR 367) and Hong Kong (Citic Pacific Limited v Secretary of Justice  1 HKC 157 at -). This not only suggests that such a test is able to work in practice; but this is a legal area in which there is advantage in the common law adopting similar principles.
Ground 2: Legal Advice Privilege and Multi-addressee Communications
i) The dominant purpose criterion applied; so that, if the dominant purpose of the email was to obtain legal advice from an in-house lawyer, then it would be privileged, even if it also at the same time sought the commercial views of others. However, if its dominant purpose was to seek commercial views, then the email would not be privileged even if it was contemporaneously sent to a lawyer for the purpose of giving legal advice (see [95(5)] and ).
ii) However, even if the dominant purpose is not in respect of obtaining legal advice, it may still be privileged if it "discloses or is likely to disclose the nature and content of the legal advice sought and obtained" (see ), or if it "might disclose" such advice (see paragraph ).
i) As I have indicated, the dominant purpose test applies to LAP. As I have indicated (paragraph 67 above), although the general role of the relevant lawyer may be a useful starting point (and may, in many cases, in practice be determinative), the test focuses on documents and other communications and has to be applied to each such.
ii) In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. In this exercise, the wide scope of "legal advice" (including the giving of advice in a commercial context through a lawyer's eyes) and the concept of "continuum of communications" must be taken fully into account. If the dominant purpose of the communication is, in substance, to settle the instructions to the lawyer then, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), that communication will be covered by LAP. That will be so even if that communication is sent to the lawyer himself or herself, by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).
iii) The response from the lawyer, if it contains legal advice, will almost certainly be privileged, even if it is copied to more than one addressee. Again, whilst the dominant purpose test applies, given the wide scope of "legal advice" and "continuum of communications", the court will be extremely reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was the provision of legal (rather than non-legal) advice. It is difficult to conceive of many circumstances in which such an exercise could be other than arid and unnecessary.
iv) There was some debate before us – as there is in the textbooks (e.g. in Hollander (see paragraph 91(iii) above)) – as to whether multi-addressee communications should be considered as separate bilateral communications between the sender and each recipient, or whether they should be considered as a whole. My preferred view is that they should be considered as separate communications between the sender and each recipient. LAP essentially attaches to communications. Where the purpose of the sender is simultaneously to obtain from various individuals both legal advice and non-legal advice/input, it is difficult to see why the form of the request (in a single, multi-addressee email on the one hand, or in separate emails on the other) in itself should be relevant as to whether the communications to the non-lawyers should be privileged. That is not to say, of course, that the form may not in some cases reveal the true purpose of the communication, e.g. it may appear from the form of the email that the dominant purpose of the email is to settle the instructions to the lawyer who has merely been copied in by way of information, or to the contrary that the dominant purpose of sending the email to the non-lawyers is to obtain their substantive (non-lawyer) input in any event.
v) In my view, there is some benefit in taking the approach advocated by Hollander (at paragraph 17-17), namely to consider whether, if the email were sent to the lawyer alone, it would have been privileged. If no, then the question of whether any of the other emails are privileged hardly arises. If yes, then the question arises as to whether any of the emails to the non-lawyers are privileged, because (e.g.) its dominant purpose is to obtain instructions or disseminate legal advice.
vi) However, whether considered as a single communication or separate communications to each recipient, and whilst there may perhaps be "hard cases", I doubt whether in many cases there will be any difference in consequence, if the correct approach to LAP is maintained. Where there is a multi-addressee email seeking both legal advice and non-legal (e.g. commercial) advice or input, if regarded as separate communications, those to and from the lawyer will be privileged: otherwise, they will not be privileged, unless the real (dominant) purpose of a specific email to/from non-lawyers is that of instructing the lawyer. If it is not for that purpose, in most cases, the email as a whole will clearly not have the dominant purpose of obtaining legal advice.
vii) I agree with Morris J, that, where a communication might realistically disclose legal advice (in the sense of there being a realistic possibility of it disclosing such advice), then that communication will in any event be privileged (see paragraph 27 above). However, in respect of the relevant documents in this case, on the basis of that test, as I understand it, Ms Brooks appears to have considered that none would or might disclose such advice (see paragraph 28 above).
viii) Mr Grodzinski suggested that this approach would cause difficulties in terms of meetings (including records of meetings), attended by non-lawyers and lawyers, at which commercial matters were discussed with the lawyer adding legal advice and input if and when required. The whole of what transpires at such a meeting, he submitted, should be the subject of LAP. However, I disagree; and consider the same principles set out above as applying to documents and other communications are applicable. Legal advice requested and given at such a meeting would, of course, be privileged; but the mere presence of a lawyer, perhaps only on the off-chance that his or her legal input might be required, is insufficient to render the whole meeting the subject of LAP so that none of its contents (including any notes, minutes or record of the meeting) are disclosable. If the dominant purpose of the meeting is to obtain legal advice (or, subject to the principle set out in Three Rivers (No 5) (see paragraphs 47 and following above), to settle instructions to a lawyer), unless anything is said outside that legal context, the contents of the meeting will be privileged. If the dominant purpose of the discussions is commercial or otherwise non-legal, then the meeting and its contents will not generally be privileged; although any legal advice sought or given within the meeting may be. It is likely that, where not inextricably intermingled, the non-privileged part will be severable (and, on disclosure, redactable) (see paragraph 69 above).
Ground 3: Separate Consideration of Emails and Attachments
Ground 4: Waiver
"18. What those citations show is that it is necessary to bear in mind two concepts. First of all, there is the actual transaction or act in respect of which disclosure is made. In order to identify the transaction, one has to look first at what it is in essence that the waiving party is seeking to disclose. It may be apparent from that alone that what is to be disclosed is obviously a single and complete 'transaction' – for example, the advice given by a lawyer on a given occasion…. [O]ne is in my view entitled to look to see the purpose for which the material is disclosed, or the point in the action to which it is said to go…. Mr Croxford [Counsel for the claimant, which sought to rely on LAP] submitted that the purpose of the disclosure played no part in a determination of how far the waiver went. I do not agree with that; in some cases it may provide a realistic, objectively determinable definition of the 'transaction' in question. Once the transaction has been identified, then those cases show that the whole of the material relevant to that transaction must be disclosed. In my view it is not open to a waiving party to say that the transaction is simply what that party has chosen to disclose (again contrary to the substance of a submission made by Mr Croxford). The court will determine objectively what the real transaction is so that the scope of the waiver can be determined. If only part of the material involved in that transaction has been disclosed then further disclosure will be ordered and it can no longer be resisted on the basis of privilege.
19. Once the transaction has been identified and proper disclosure made of that, then the additional principles of fairness may come into play if it is apparent from the disclosure that has been made that it is in fact part of some bigger picture (not necessarily part of some bigger 'transaction') and fairness, and the need not to mislead, requires further disclosure. The application of this principle will be very fact sensitive, and will therefore vary very much from case to case…."
The purpose of the voluntary disclosure, which has prompted the contention that privilege in other material has been collaterally waived, is therefore an important consideration in the assessment of what constitutes the relevant "transaction" (see also Dore v Leicestershire County Council  EWHC 34 (Ch) at - also per Mann J).
"This can be seen from an email sent to Mr Haines by one of my colleagues, Mr Buffey [attached as an exhibit],… and from the content of the material that we published."
Lord Justice Peter Jackson :
Lord Justice Patten :