Legal professional privilege allows parties to freely consult with their lawyers regarding issues of law and receive advice without fear that their communications will have to be disclosed. It is divided into two limbs.
Where information is passed by the solicitor or client to the other as part of keeping both informed, privilege will attach (Balabel v Air India). Legal advice also includes advice as to what should be prudently and sensibly done in the relevant legal context.
For in-house lawyers, problems may arise where they are asked to provide both legal and commercial advice, as this may not be covered by LAP.
The Court of Appeal in the case of The Civil Aviation Authority v Jet2.com Limited has now confirmed that documents will only benefit from legal advice privilege where they have been prepared for the DOMINANT purpose of seeking legal advice.
The CAA issued a press release which was critical of Jet2 for failing to participate in a new customer redress scheme. The CAA also provided correspondence between itself and Jet2 to the press. Jet2 sought judicial review of the CAA’s decision to brief the press.
The CAA claimed that the documents Jet2 wanted to see were privileged on the basis that the communications were prepared with the involvement of in-house lawyers and non-lawyers, and that they, therefore, formed part of the “continuum of communications” between client and in-house lawyer for the purpose of seeking legal advice and so were protected by legal advice privilege.
In the first instance decision, Morris J imposed a dominant purpose test for legal advice privilege and found that the documents were not created for the dominant purpose of seeking legal advice and were not privileged.
CAA Appealed the decision.
In The Civil Authority v Jet2.com Limited the waiver of privilege was limited to the documents they had voluntarily disclosed, and fairness would not have required any wider collateral waiver.