New test for the privilege of legal advice

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Overview

In a recent decision, CAA vs. Jet2.com, the Court of Appeal slightly changed the test of when legal advice privilege will apply.

Historically, legal advice privilege has covered communications between the client and the lawyer made for the purpose of giving or receiving legal advice.

However, under the new test, which aligns this jurisdiction with other common law jurisdictions including Australia, Hong Kong and Singapore, it will only cover communications made for the dominant purpose of giving or receiving legal advice.

Potential consequences?

It is difficult to predict exactly what the consequences of the new test will be. However, our current view is that it is unlikely to significantly reduce the circumstances in which legal advice privilege will apply. This is partly because:

  • “Legal advice” in this context will remain broadly defined and will continue to include not only the provision of black letter legal advice on the rights and obligations of the client, but also advice on what should be done with care and sense in the process. legal context; and
  • the principle of the “continuum of communications” will continue to apply, which means that when a lawyer is engaged by a client in connection with a pending transaction or case, the privilege will extend not only to communications in which legal advice is specifically requested or given, but also to any other communication that is part of the “communications continuum” between them (such as communications aimed at keeping either up to date so that advice can then be requested or given if necessary).

That said, the main area of ​​interest of the Court of Appeal in that decision was the application of legal advice privilege to multi-recipient emails sent by a client simultaneously to lawyers and non-lawyers, particularly in an internal framework. The Court was keen to stress that, if the overriding purpose of such an email was to obtain commercial opinions from lay recipients, then it would not be privileged, even if a subsidiary objective were simultaneously to obtain advice from lawyers (even if any response from the lawyer would be preferred insofar as it contained legal advice). So we may now see a closer look at these emails, email by email, to see if they were actually sent for the dominant purpose of giving or receiving legal advice.

The Court of Appeal also clarified that the same principles would apply in the context of face-to-face meetings: the mere presence of a lawyer at a meeting, in the event that legal advice may be required, will not render the whole content of this meeting is subject to the privilege of legal advice. If the dominant purpose of the meeting is commercial, its content will simply not be protected (except that any discreet legal advice requested or given during the meeting will likely be separated from the whole and will be given privileged protection) .

Practical advice

While this ruling is unlikely to significantly change the privilege landscape, it is a timely reminder of the potential pitfalls of sending multi-recipient emails to both lawyers and non-lawyers alike, especially in an internal context. In an ideal world, careful thought should be given to the dominant purpose of these emails before they are sent, and if that overriding purpose is to seek legal advice, this should be made clear up front. Alternatively, depending on the circumstances, it may be preferable to keep the channels of communication with lawyers and those with business people separate, accepting that those with business people are not privileged.

Ultimately, when it comes to privilege, the best protection is always simply to know the relevant rules and to only create, distribute and tag documents with them in mind.

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