Court of Appeal rules that dominant purpose test applies to legal advice privilege

The Court of Appeal handed down its judgment in Jet2.com v Civil Aviation Authority  [2020] EWCA Civ 35, finding that the dominant purpose test (normally associated with litigation privilege) applies in the context of legal advice privilege.

The issue arose out of an application for specific disclosure made by Jet2 in underlying judicial review proceedings brought against the CAA (which were stayed pending the CAA’s appeal on privilege). Jet2 sought the disclosure of all drafts of a letter that it had received from the CAA and all internal discussions concerning those drafts, which the CAA understood to be privileged as a result of the involvement of its in-house lawyers.

The Court of Appeal agreed with Morris J at first instance that like litigation privilege, legal advice privilege was subject to a dominant purpose test. Moreover, the Court took the view that multi-addressee emails (i.e. those addressed to lawyers as well as non-lawyers), were best analysed as separate communications to each recipient. Accordingly, the documents in respect of which CAA had asserted privilege were disclosable to Jet2.

The CAA succeeded in its appeal on collateral waiver, but that appeal had become academic following the Court’s finding that the document in respect of which privilege was said to have been waived was not privileged.

Anna Medvinskaia (instructed by Mayer Brown LLP and led by Sam Grodzinski QC and Tamara Oppenheimer) acted for the CAA. A copy of the judgment is available here.