Court of Appeal confirms dominant purpose test for legal advice privilege (2025)

The Court of Appeal’s key ruling in R. (on theapplication of Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 isthat the dominant purpose test (normally only associated with litigationprivilege) applies in the context of legal advice privilege. This ruling increases the risk that confidential communications between lawyers and clients may be treated as disclosable.

Background

The underlying dispute concerned judicialreview proceedings brought by Jet2.com Limited (Jet2) against the CivilAviation Authority (the CAA).

The CAA was a vigorous proponent of a newalternative dispute resolution (ADR) scheme for the air passengerindustry. Jet2 refused to join the scheme. The CAA criticised Jet2 in apress release. Jet2 complained to the CAA about the press release and theCAA wrote a letter of response which contained further criticisms ofJet2. The letter was drafted by a non-lawyer, but in-house lawyers wereinvolved in discussing and commenting on drafts. The CAA provided theabove correspondence to the Daily Mail.

Jet2 challenged the lawfulness of the CAA’sactions (issuing the press release and communicating with the Daily Mail) in judicialreview proceedings. Jet2 argued, among other things, that the CAA’sactions involved the exercise its powers for unauthorised and improperpurposes, namely to punish Jet2 for its decision not to join the ADR scheme.

A key issue concerned what the CAA’s realpurpose was in issuing its press release. Jet2 sought disclosure of alldrafts of the CAA’s letter of response and all records of any discussion ofthose drafts. The CAA resisted disclosure on the basis that in-houselawyers had given advice in relation to the various drafts and were alsoinvolved in discussions about the drafts so the documents in question wereprotected by legal advice privilege.

The Issue

The issue for consideration was whethercommunications between lawyers and their clients had to be made for the dominant purpose of giving or receivinglegal advice, or whether it was sufficient merely for that to be a purpose of the communication. Whilethe “dominant purpose” test has been long-established in connection withlitigation privilege, the case law was less clear on whether that test appliedto legal advice privilege.

The issue arose because the CAA was inpossession of emails that has been sent to multiple addressees. While some addressees were lawyers, others were not, and it could not be saidthat the dominant purpose of themulti-addressee emails was to give or receive legal advice.

The judgment:dominant purpose test

The Court of Appeal found that thepreponderance of case law supported the proposition that a person claiminglegal advice privilege must show that the dominant purpose of the relevantcommunication was to give or receive legal advice.

More broadly, the Court of Appeal favoured theinclusion of a dominant purpose test because:

a. Litigationprivilege and legal advice privilege are limbs of the same privilege, legalprofessional privilege. The Court of Appeal considered that there was nocompelling rationale for differentiating between limbs of the privilege in thiscontext.

b. Generallythe common law in other jurisdictions (such as Australia, Singapore and HongKong) has incorporated a dominant purpose test in both limbs of legal professionalprivilege. The Court of Appealconsidered that this is a legal area in which there is advantage in the commonlaw adopting similar principles.

Practical guidance: multi-addressee emailsThe Court of Appeal also provided the followingpractical guidance on how to apply the “dominant purpose” test tomultiple-addressee communications:

• In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for input, the purpose(s) of the communication needs to be identified.
• In this exercise, the wide scope of “legal advice” (including what should prudently and sensibly be done in the relevant legal context) and the concept of “continuum of communications” must be taken fully into account. The point here is that the dominant purpose test can be applied to a broad range of lawyer-client communications which count as “legal advice”.
• If the dominant purpose of a multi-party email is to obtain the commercial views of the non-lawyer addressees, then the communication will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).
• The response from the lawyer, if it contains legal advice, will almost certainly be privileged, even if it is copied to more than one addressee. When a lawyer sends an email to their client (even if copied to others) the court will be extremely reluctant to engage in the exercise of determining whether, in respect of a specific document or communication, the dominant purpose was the provision of legal (rather than non-legal) advice.
• Even if a multi-addressee email was not sent for the dominant purpose of legal advice, it will nevertheless be treated as privileged where it might realistically disclose the content of legal advice.

Practical guidance: meetingsThe Court of Appeal confirmed that the dominantpurpose principle also applies to meetings (including records of meetings),attended by non-lawyers and lawyers, at which commercial matters are discussed.

• Legal advice requested and given at such a meeting would, of course, be privileged; but the mere presence of a lawyer is insufficient to render the whole meeting the subject of legal advice privilege so that none of its contents (including any notes, minutes or record of the meeting) are disclosable.
• If the dominant purpose of the meeting is to obtain legal advice, unless anything is said outside that legal context, the contents of the meeting will be privileged.
• If the dominant purpose of the discussions is commercial or otherwise non-legal, then the meeting and its contents will not generally be privileged; although any legal advice sought or given within the meeting may be.
• It is likely that, where not inextricably intermingled, the non-privileged part will be severable (and, on disclosure, redactable).

Attachmentsto emails

TheCourt of Appeal also confirmed the well-established principle that a documentwhich is not privileged does not become privileged simply because it is sent toa lawyer.Therefore, in giving disclosure, it is necessary to giveseparate consideration to emails and their attachments.

Comment

This decision confirms that the stricter“dominant purpose” test applies to legal advice privilege.This makes it more difficult to claim privilegeover confidential communications between lawyers and clients, particularlywhere emails or other communications have been addressed to a mixed group oflawyers and non-lawyers. The decision alsopotentially adds a layer of complexity to the disclosure process. Manyemails sent and received in large businesses have multiple addressees, and theabove analysis (see “Practical guidance:multi-addressee emails”) will now have to be applied to suchcommunications.

The judgment will, however, ensure that a widerrange of material is available to the parties and the court through the processof disclosure.

Protectinglegal advice privilegeTo protect privilege in multi-addresseecommunications there are some practical points to keep in mind:

• It is not (and never was) possible to claim legal advice privilege simply by copying a lawyer on a group email chain. The mere involvement of a lawyer is not enough to justify a claim for legal advice privilege. It is necessary to apply the dominant purpose test in each case.
• It is prudent to mark relevant emails as being for the dominant purpose of legal advice. This is not determinative but is helpful, both as a reminder to recipients to keep the information confidential and as evidence of the sender’s intention.
• If in doubt about whether a multi-party “mixed purpose” email will be privileged, it is prudent to separate out the legal and commercial elements of the email and send them separately.

For further information on thistopic, our client guide on legal professional privilege can be found here.