Legal Advice Privilege after Civil Aviation Authority v R Jet2.com Ltd [2020]

Following Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35 caution must be exercised in communications, documents and meetings which deal with both commercial and legal issues. Copying a lawyer into communications or having a lawyer in attendance at a meeting will not in itself provide Legal Advice Privilege ("LAP") protection.  

Background 

The Civil Aviation Authority ("CAA") criticised the airline Jet2 in a press release published in April 2018 for failing to sign up to an ADR 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 and all records of discussions of those drafts.

In deciding whether or not the documents were privileged, the Court was required to determine:

• whether, for a communication to fall within the scope of LAP, it had to have the dominant purpose of seeking or giving legal advice;
• whether emails sent to multiple addressees, some of whom were lawyers and some of whom were not, had been brought into existence for that dominant purpose; and
• whether privilege had been waived by the CAA's voluntary disclosure of one email.

Decision

The Court of Appeal dismissed the Appeal and found that for LAP to apply the proponent of privilege must show that the dominant purpose of a communication or meeting was to obtain or give legal advice.

Practical implications

• Copying an email to a lawyer, even if the email seeks legal advice in part, will not guarantee protection.  Similarly with the attendance of a lawyer at a meeting. 
• Keeping legal and commercial issues separate wherever possible could avoid potential arguments later as to the extent to which the communication is protected as a whole.