Legal advice privilege - more guidance from the courts

When a business is disclosing documents in the course of litigation or responding to a data subject access request, a key question is whether any material can be withheld on the basis that it is legally privileged.   Legal privilege comes in two forms:

• legal advice privilege, which attaches to confidential communications between a lawyer and a client for the purposes of seeking legal advice, and
• litigation privilege, which attaches to communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation.

Businesses often copy lawyers into communications (particularly by email) in order to assert that legal advice privilege applies to those communications.   However, a recent case involving the Civil Aviation Authority emphasises that this is not a wise or effective strategy.  

The Civil Aviation Authority ("CAA") criticised the airline Jet2 in a press release published in April 2018 for failing to sign up to a scheme in relation to consumer complaints. The airline had complained about the press release in January 2018, before publication, and the CAA responded in writing in February 2018. In subsequent proceedings, the airline applied for specific disclosure of all drafts of the CAA's February 2018 letter – some of which had been copied to the CAA's in-house lawyers. 

The Court of Appeal had to determine whether the drafts were privileged.   The issues were:

• whether, in order to be subject to legal advice privilege, the communications had to have the dominant (i.e. main) purpose of seeking or giving legal advice, and
• whether emails sent to multiple addressees, some of whom were lawyers and some of whom were not, had been brought into existence for that purpose.

The Court of Appeal found that for legal advice privilege to apply the dominant purpose of a communication or meeting must have been to obtain or give legal advice. Copying an email to a lawyer, even if the email seeks legal advice in part, will not guarantee protection, ditto the attendance of a lawyer at a meeting.  Emails copied to multiple recipients, some of whom are lawyers, need to be analysed carefully to assess the dominant purpose of the communication. 

Businesses should:

• identify clearly which individuals within the business are responsible for seeking legal advice on behalf of the business;
• in large organisations, it may be prudent to have internal protocols about seeking legal advice to avoid confusion; 
• avoid copying multiple recipients unnecessarily when seeking legal advice, likewise avoid disseminating legal advice outside the circle of decision-makers; and
• keep discussions about legal advice and commercial issues separate.

Issues of legal privilege are complex and businesses should seek specialist advice at an early stage when dealing with a potentially contentious matter to ensure that legal advice privilege is maintained.