In Civil Aviation Authority v R (on the application of Jet2 Ltd) 2020 EWCA Civ 35, the English Court of Appeal provided clear guidance on the position of Legal Advice Privilege and multiparty emails.
Further, it confirmed that in order for a document to attract Legal Advice Privilege (broadly the equivalent of attorney-client privilege in the US), the party claiming privilege must show that the communication or document was created with the dominant purpose of giving or receiving legal advice.
Dominant Purpose Test
Legal Advice Privilege attaches to communications between a lawyer and client for the purpose of giving or receiving legal advice. The Court considered whether it was necessary for the CAA to establish that giving or receiving legal advice was the “dominant purpose” of the documents/communications.
Several previous authorities have suggested that it was necessary for the legal advice to be the dominant purpose of the communication, but the more recent judgment of Serious Fraud Office v Eurasian Natural Resources Corporation Limited  EWCA Civ 2006 suggested that the requirement for a “dominant purpose” was tautologous (obiter). In Jet2, the Court rejected this approach and confirmed that dominant purpose was a requirement:
“For [Legal Advice Privilege] to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice.”
Most of the documents which were the subject of the dispute were emails sent to a number of addressees, including lawyers and non-lawyers.
In respect of multiparty emails, the Court held that:
Applying the Approach to Meetings
The Court held that the principles set out above also apply to meetings where a lawyer is present. Legal advice requested and given at such meetings would, of course, be privileged. However, the mere presence of a lawyer, perhaps only on the off chance that his or her legal input might be required, is insufficient to render the whole meeting the subject of Legal Advice Privilege.
If the dominant purpose of the meeting is to obtain legal advice, the contents of the meeting will be privileged. If the dominant purpose of the discussions is commercial, then the meeting will not generally be privileged (although any legal advice sought or given within the meeting may be).
The Court confirmed that documents do not become privileged simply because they have been sent to lawyers. Emails and each of their attachments must be given separate consideration.
Comparison to Other Jurisdictions
The judgment aligns privilege analysis for multi-purpose communications closely with that used by US courts for the attorney-client privilege. US courts apply a functionally similar “primary” or “predominant” purpose test to determine whether mixed purpose communications, such as multi-party emails, qualify for privilege protection. Like the Court of Appeal’s “dominant purpose” test, US courts recognize privilege protection where the privilege holder demonstrates that the provision of confidential legal advice was the primary purpose for the communication. See, e.g., Apple, Inc. v. Samsung Elec. Co., Ltd., 306 F.R.D. 234, 240–41, 240 n.38 (N.D. Cal. Apr. 3, 2015) (applying the “primary purpose” test and holding that privilege does not attach to “any communication that would have been made because of a business purpose”); Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, 892 F.3d 1264, 1267–1268 (D.C. Cir. 2018) (applying a slightly expanded “primary purpose” test and finding a communication with in-house counsel for both legal and business advice was privileged because “one of the significant purposes of the communication” was legal).
Courts of the EU, by contrast, apply a more stringent standard when considering privilege for mixed use or multi-party communications. See, e.g., Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission, Cases T-125/03 and T-253/03, judgment of 17 September 2007. (European Court of First Instance) (internal company documents “may none the less be covered by [Legal Professional Privilege], provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence.”) (emphasis added).
Large multiparty email chains are commonplace in nearly all commercial organizations. For many, it would be impractical to suggest that requesting and providing legal advice could take place outside such communications. In-house lawyers can take comfort that the judgment is clear that the provision of legal advice on such chains is almost certainly privileged. The judgment is an opportunity for in-house lawyers to reprise what is no doubt a familiar refrain to their internal client: “Copying me in will not make it privileged.” A chance perhaps to unleash their own cranky alpaca.