Court of Appeal applies ‘dominant purpose’ test to legal advice privilege

Friday 7th February 2020

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The ‘dominant purpose' test originates from the 1976 Australian case of Grant v Downs, where it was applied to both litigation privilege and legal advice privilege. While other common law jurisdictions, such as Singapore and Hong Kong have historically applied this dual approach, England & Wales have continually resisted to apply it to legal advice privilege, until now.

On 28 January 2020, the Court of Appeal ruled in Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35 that the Civil Aviation Authority (CAA) could not claim legal advice privilege over email correspondence as it was predominantly conducted for the purposes of seeking commercial views, rather than legal advice, despite copying their in-house lawyers into correspondence.

Lord Justice Hickenbottom, who gave the leading judgment, stated that there was no good reason to treat legal advice privilege as any different to litigation privilege, for the purposes of the ‘dominant purpose’ test: “Although they do have some different characteristics, litigation privilege and [legal advice privilege] are limbs of the same privilege, legal professional privilege… In my view, there is no compelling rationale for differentiating between limbs of the privilege in this context."

This decision has significant implications for litigators but also for in-house commercial lawyers, who will need to be ultra-cautious when dealing with ‘grey area’ queries that combine legal and commercial issues. The reality of being an in-house lawyer in a commercial environment, is that they will often be asked to advice on matters that can be classed as both legal and non-legal. Going forward, they will need to ensure that the business that they work in can make the distinction between legal advice and commercial advice and are aware that the latter will not be protected by legal advice privilege.

For a thorough overview of this case, as well as the current law on professional privilege and without prejudice privilege, don’t miss our updated Professional Privilege and Without Prejudice Privilege: A Practical Guide course.

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