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Breaking news - dominant purpose test extends to legal advice privilege

31 January 2020. Published by Davina Given, Partner and Joe Cresswell, Senior Associate and Kiran Dhoot, Associate

The Court of Appeal has held that legal advice privilege will apply to communications only if seeking or giving legal advice is their dominant purpose.

The appeal related to a High Court judgment which stated that the Civil Aviation Authority could not claim legal advice privilege over emails sent to an in-house lawyer asking for her views on the basis that it was also sent to non-lawyer staff to seek their commercial views (R (on the application of Ltd) v Civil Aviation Authority [2020] EWCA Civ 35 [23]).

The key findings on legal advice privilege were: 

  • The dominant purpose test, historically considered only in the context of litigation privilege, applies to legal advice privilege, ie a communication between a lawyer and client for the purpose of seeking or giving legal advice will attract legal advice privilege only if that purpose is the primary or dominant purpose.  Two equal purposes is not sufficient.
  • Where a single multi-addressee email is sent to various individuals (including lawyers) for their input, if one purpose is to obtain the commercial views of the non-lawyers, even if another purpose is to obtain legal advice from the lawyers, then legal advice privilege will not attach to that email. 
  • A lawyer's response to such a multi-address email will still be covered by legal advice privilege, providing that it contains legal advice rather than commercial commentary.

The case reinforces the need to keep communications relating to legal advice separate from wider commercial communications – not an easy task for inhouse counsel in today's working world.

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