The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of)

In line with the principle that the best probative evidence should be available to the court, admissible and relevant communications are generally disclosable in legal proceedings even if they are confidential. However, there is a rule that evidence which falls within the scope of legal professional privilege does not have to be disclosed, even if it is admissible and relevant to the issues in the litigation.

As originally formulated by the courts, the privilege covered only confidential communications made between a lawyer and his client, or a lawyer or client and a third party, which came into existence for the purposes of litigation (“litigation privilege”). The rationale of the privilege was said to be that “it is an absolute necessity that a man, in order to prosecute his rights or defend himself from an improper claim, should have resource to the assistance of professional lawyers” and that “he should be able to make a clean breast of it to the gentlemen whom he consults” in the sure knowledge that his communications to and from the lawyer will be “kept secret” unless disclosed with his consent (Anderson v Bank of BritishColumbia (1876) 2 Ch D 644 (“Anderson”) at page 649 per Sir George Jessel MR); and that a party in adversarial proceedings had no right to have access to his opponent’s brief nor any obligation to disclose any part of that brief.

However, in Greenough v Gaskell (1833) 1 My & K 98, Lord Brougham LC held that the privilege applied to all confidential communications between a lawyer and his client made for the purposes of giving or obtaining legal advice, whether or not there were existing or contemplated proceedings (i.e. LAP). This appeal concerns LAP.

LAP involves the right to withhold disclosure of relevant, and possibly crucial, evidence from legal proceedings; and consequently it potentially detracts from the fairness of those proceedings. Such a right requires powerful justification. Having comprehensively reviewed the authorities, the rationale for LAP was described by Lord Taylor of Gosforth CJ (with whom the rest of the Judicial Committee of the

Legal professional privilege is regarded of such importance that it has been described as “absolute”; but, like most rights, it is not absolute in the true sense of that word. As I describe below (paragraphs 74 and following), where a document is produced for the purpose of litigation, it will nevertheless be disclosable if that is not its dominant purpose. Furthermore, the right of the client to withhold disclosure of the evidence cannot be relied upon where to do so would further fraud or crime. Nevertheless, the vital nature of the privilege, and its underlying rationale, has been regularly emphasised by the courts. Two examples will suffice.

First, Lord Hoffman in R (Morgan Grenfell & Co Limited) v Special Commissionerof Income Tax [2002] UKHL 21; [2003] AC 563 (with whom the rest of the Judicial Committee agreed) at [7], said this:

“… [Legal professional privilege] is a fundamental human right long established in the common law. It is a corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of [Lord Taylor in ex parte B]. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the [European Convention on Human Rights] (Campbell v United Kingdom (1992) 15 EHRR 137; Foxley vUnited Kingdom (2000) 31 EHRR 637) and held by the

European Court of Justice to be part of Community law (A M

& S Europe Limited v Commission of the EuropeanCommunities (Case 155/79) [1983] QB 878).”

Second, Lord Scott of Foscote in Three Rivers (No 6) at [34], having considered the relevant authorities, continued:

“None of these judicial dicta tie the justification for [LAP] to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients’) consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law of privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients’) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else (see also paragraphs 15.8-15.10 of Zuckerman’s Civil Procedure(2003) where the author refers to the rationale underlying legal advice privilege as ‘the rule of law rationale’). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of [LAP] in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material.”

The original formulation of LAP as set out in Greenough v Gaskell essentially continues to apply. Lord Rodger of Earlsferry put it thus in Three Rivers (No 6) at [50]:

“… [LAP] attaches to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at a stage when litigation is not in contemplation”.

As Mr Grodzinski submitted, it is therefore necessary for the party seeking to rely on the right to withhold evidence to satisfy the criteria of each of four elements: there must be (a) a communication (whether written or oral); (b) between a client and a lawyer, or a lawyer and his client; (c) made in confidence; (d) for the purpose of giving or obtaining legal advice.

The focus of this appeal (and, especially, Grounds 1 and 2) is whether the “purpose” in (d) must be the dominant purpose; but some aspects of the other elements are also pertinent to the issues before us. The following five propositions, relevant to this appeal, arise from the authorities. The first three propositions are uncontroversial; the other two require some greater consideration.

Although the older cases (decided at a time when legal advice was generally obtained from or through solicitors in private practice) concern external lawyers, LAP applies to communications, not only with a lawyer in independent practice, but also with an in-house lawyer (see, e.g., Alfred Crompton Amusement Machines Ltd v Customs &Excise Commissioners (No 2) [1972] QB 102, and Financial Services CompensationScheme Limited v Abbey National Treasury Services Limited [2007] EWHC 2868 (Ch) at [9]).

Although the privilege attaches to communications between a lawyer and his client, the law recognises that legal advice is not given for hypothetical purposes, but to be considered and (insofar as accepted) applied by the client. It is therefore wellestablished that it covers, not only a document from the lawyer containing advice and the client’s own written record of advice (whether given in writing or orally), but also any communication (again, whether written or oral) passing on, considering or applying that advice internally (Bank of Nova Scotia v Hellenic Mutual War RisksAssociation (Bermuda) Limited (The Good Luck) [1992] 2 Lloyd’s Rep 540 (“The

The privilege applies to communications only for the purpose of obtaining or giving legal advice, and not (e.g.) other professional or commercial advice. Wheeler v LeMarchant (cited in paragraph 1 above) concerned the disclosure of various documents passing between a client and his surveyor, which appear to have included not only primary factual information but also surveying advice and opinion. Cotton LJ said (at pages 684-5):

“It is said that as communications between a client and his legal advisers for the purpose of obtaining legal advice are privileged, therefore any communication between the representatives of the client and the solicitor must be also privileged. That is a fallacious use of the word

‘representatives’. If the representative is a person employed as an agent on the part of the client to obtain the legal advice of the solicitor, of course he stands in exactly the same position as the client as regards protection, and his communications with the solicitor stand in the same position as the communications of his principal with the solicitor. But these persons were not representatives in that sense. They were representatives in this sense, that they were employed on behalf of the clients, the defendants, to do certain work, but that work was not the communicating with the solicitor to obtain legal advice. So their communications cannot be protected on the ground that they are communications between the client by his representatives and the solicitor. In fact, the contention of the Respondents comes to this, that all communications between a solicitor and a third person in the course of his advising his client are to be protected. It was conceded there was no case that went that length, and the question is whether, in order fully to develop the principle with all its reasonable consequences, we ought to protect such documents. Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And that is reasonable, because then the solicitor is preparing for the defence or for bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected. But here we are asked to extend the principle to a very different class of cases, and it is not necessary, in order to enable persons freely to communicate with their solicitors and obtain their legal advice, that any privilege should be extended to communications such as these.”

Therefore, as Longmore LJ said in Three Rivers (No 5) (at [18]):

“This case thus makes clear that [LAP] does not extend to documents obtained from third parties to be shown to a solicitor to advise.”

The second proposition to which I referred concerns the extent to which legal advice, privileged when given, can be disseminated internally and externally without the loss of privilege, where the law has taken a flexible and realistic approach, reflecting the realities of modern corporate and commercial arrangements. However, the law has taken a somewhat different approach to the collection of material, internally and externally, for the purpose of obtaining legal advice, based upon the principle set out in Wheeler v Le Marchant. The fourth proposition derived from the authorities is that material collected by a client (or by his lawyer on his behalf) from third parties or independent agents for the purposes of instructing lawyers to give advice is not covered by LAP; and, further, where the relevant client is a corporation, documents or other materials between an employee of that corporation and a co-employee or the corporation’s lawyers, even if required or designed to equip those lawyers to give legal advice to the corporation, do not attract LAP unless the employee was tasked with seeking and receiving such advice on behalf of the company (Three Rivers (No5) at [8] and following, and the judgment of this court (Sir Brian Leveson PQBD, Sir Geoffrey Vos C and McCombe LJ) in Director of the Serious Fraud Office v EurasianNatural Resources Corporation Limited [2018] EWCA Civ 2006; [2019] 1 WLR 791 (“Eurasian”) especially at [79]-[81] and [123]-[130]).

On this issue, Three Rivers (No 5) is binding upon this court (see Eurasian at [130]); but, like the constitution of this court in Eurasian, I find parts of the judgment, including this part, difficult.

The background to the Three Rivers litigation is both well-known and helpfully set out in Eurasian (at [67]-[81]). For the purposes of this appeal, I can be brief. The claimants were the liquidators and creditors of Bank of Credit and Commerce International SA (“BCCI”), who sued the Bank of England (“the Bank”) for misfeasance in public office in respect of its supervision of BCCI following its commercial collapse. The claimants sought disclosure of various documents sent by the Bank to solicitors instructed to advise on the preparation and presentation of the Bank’s evidence before an enquiry into the supervision of BCCI chaired by Bingham LJ, namely Freshfields Bruckhaus Deringer LLP (“Freshfields”).

The Bank instructed, and only communicated with, Freshfields through something called “the Bingham Inquiry Unit” (“the BIU”), comprising three of the Bank’s officials. The issue concerned the extent to which documents sent by the BIU to Freshfields were privileged from disclosure in the litigation. Although a number of sub-issues concerning disclosure arose, all of the relevant documents were sent to Freshfields. The role of that firm was the subject of scrutiny; but no issue arose in respect of emails or other communications sent simultaneously to lawyers and nonlawyers for their respective advice/input, as it does in this case.

The inquiry was not adversarial, and so litigation privilege did not apply. The issue in Three Rivers (No 5) was whether the Bank could claim LAP, despite the fact that many of the documents sent to Freshfields were not prepared by the BIU but by other employees of the Bank. At first instance, Tomlinson J held that LAP applied. On appeal, this court disagreed. Permission to appeal to the House of Lords was refused (see [2003] QB 1556 at page 1583G). In Three Rivers (No 6), the House of Lords declined to determine or express views on the issue; and thus “the guiding precedent on the issue [continues] to be the Court of Appeal judgment in Three Rivers (No 5)” (see [46]-[48] per Lord Scott, with whom Lord Rodger (at [49]), Baroness Hale of Richmond (at [61]) and Lord Brown of Eaton-under-Heywood (at [119]) agreed; confirmed in Eurasian at the paragraphs cited above).

In Three Rivers (No 5), on this issue, citing 19th century authorities (including the passage from the judgment of Cotton LJ in Wheeler v Le Marchant quoted above: paragraph 46), and passages from the judgments of Mellish LJ and Baggallay JA in Anderson (cited at paragraph 36 above)), Longmore LJ said (at [19]):

“By the end of the 19th century it was, therefore, clear that [LAP] did not apply to documents communicated to a client or his solicitor for advice to be taken upon them but only to communications passing between that client and his solicitor (whether or not through any intermediary) and documents evidencing such communications.”

Longmore LJ then went on to hold that, for these purposes, agents or employees who were not instrumental in instructing the lawyers could be equated with third parties; so that documents or other information given by an employee to an employer or a fellow-employee did not attract LAP, even though on the facts it was intended to be shown to a lawyer (see [22]-[31]). Thus, on the facts of the case, he found that the Bank was not able to rely on LAP in respect of any of the documents prepared by its employees for the purposes of instructing Freshfields.

I do not find that analysis, or conclusion, easy; nor, it seems, did the constitution of this court in Eurasian, in which one of the questions for the court was: “What did Three Rivers (No 5) actually decide?” (see [124]-[130]). Having carefully considered the judgment in Three Rivers (No 5) and found that this was an essential part of Longmore LJ’s reasoning (so that the court should not depart from it, even if on one view it could be argued that it was obiter: see [77]), Sir Geoffrey Vos C, giving the judgment of the court in Eurasian, concluded as follows (at [13]):

“We can fully accept that the Court of Appeal couldhave decided Three Rivers (No 5)on the simple basis that Freshfields’ client was the BIU (not the Bank), and the documents had been prepared by the Bank (not the BIU), so that the position of the particular Bank employee who had prepared them was irrelevant to the question of [LAP]. We do not, however, think that, fairly read, that was the Court of Appeal’s reasoning. As we have explained, it seems to us that Longmore LJ reasoned that, because agents and employees, on authority, stood in the same position in relation to legal professional privilege, once it was established that only communications between the lawyer and the client, and not between the lawyer and an agent of the client, could attract [LAP], communications between a lawyer and an employee of the client (other than employees specifically tasked with seeking and receiving legal advice) could also not be privileged. As we have said, we are not sure that it is necessary for us to determine whether this reasoning was the ratio decidendi, but if that did have to be decided, we would hold that it was.”

The constitution of this court in Eurasian indicated that, if it had been open to it to depart from Three Rivers (No 5) on this issue, it would have done so. In addition to the preference for common law jurisdictions to be in step on such issues as this – Three Rivers (No 5) being out of step with overseas common law on this issue – the court considered that the foundation of Longmore LJ’s judgment (i.e. an analysis of 19th century authorities) was unsafe, because those cases were decided at a time when the distinction between litigation privilege and LAP was “very much in its infancy”, and without any of the principled analysis of LAP which has subsequently taken place

I respectfully agree. In addition:

For those reasons, like the constitution of the court in Eurasian, on the basis of both principle and practical application, I respectfully doubt both the analysis and conclusion of this court in Three Rivers (No 5) on this issue; and, had it been in this court’s power, I too would be disinclined to follow it.

But, as I have indicated, we do not have that power. In Three Rivers (No 5), this court held that communications between an employee of a corporation and the corporation’s lawyers does not attract LAP unless that particular employee was tasked with seeking and receiving such advice on behalf of the client; and, as confirmed in

However, the facts of this case – and the issue to which they give rise – are significantly different from those in Three Rivers (No 5). In that case, the relevant lawyers (Freshfields) were external; and the issue was whether, in advising on the presentation of evidence to the Bingham Inquiry, they were involved qua lawyers; and therefore whether the communications concerning that advice could be in respect of “legal advice” so that they were covered by LAP. The relevant lawyers in this case were in-house; and Morris J found that the in-house lawyers were involved in the internal correspondence qua lawyers rather than merely as executives providing commercial advice (see paragraph 22 above). The relevant non-lawyers were all relatively senior executives. There appears to be no evidence suggesting that any of those involved in the relevant internal correspondence did not have the ability to seek legal advice from those lawyers, or that, for these purposes, they were not “an emanation of the client”. It seems to me that, on the evidence, in this case each of the non-lawyers involved fell within the scope of “client” so far as the lawyers involved were concerned. Therefore, leaving aside for the moment the question of whether the purpose has to be “dominant”, LAP will attach to any confidential communication between a lawyer and a non-lawyer in this case, made for the purpose of giving or obtaining legal advice. As I understood his submissions, Mr Béar did not suggest the contrary.

The focus therefore turns to the scope of “legal advice” for these purposes, and the fifth proposition namely that, for LAP to apply, the communication must be made “in a legal context” (the first limb), but otherwise “legal advice” is widely defined (the second limb).

As I have described, LAP applies to a confidential communication between a client and a lawyer for the purpose of giving and obtaining legal advice. Whilst this appeal focuses on that purpose, many of the authorities – even those upon which the parties rely as providing some assistance to the “dominant purpose” issue – primarily concern the relationship between lawyer and client, and the scope of “legal advice” in that context.

In Balabel, this court considered the issue of whether LAP extends only to communications particularly seeking or conveying legal advice or to all that passes between lawyer and client on matters within the ordinary business of a lawyer. Taylor LJ, having reviewed the authorities (which, he accepted, were divergent in respect of the scope of the privilege), continued (at page 330D-331A):

“Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please advise me what I should do’. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.

It may be that applying this test to any series of communications might isolate occasional letters or notes which could not be said to enjoy privilege. But to be disclosable such documents must be not only privilege-free but also material and relevant. Usually a letter which does no more than acknowledge receipt of a document or suggest a date for a meeting will be irrelevant and so non-disclosable. In effect, therefore, the ‘purpose of legal advice’ test will result in most communications between solicitor and client in, for example, a conveyancing transaction being exempt from disclosure, either because they are privileged or because they are immaterial or irrelevant.”

Similarly, in Three Rivers (No 6) (at [111]), Lord Carswell, having quoted from Balabel, said that it did not disturb or modify the principle affirmed in Minter vPriest [1930] AC 558 (in which it was held that conversations between a solicitor and client relating to the business of obtaining a loan for the deposit for the purchase of land were privileged, as the business was professional business within the ordinary scope of a solicitor’s employment), namely:

“… [A]ll communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client.”

Those cases, therefore, confirmed both limbs of Proposition 5.

In respect of the first limb, I can be brief, because Morris J found that the lawyers engaged in the internal correspondence here were indeed involved qua lawyers, and so communications made to them were generally made in an appropriate “legal context”. However, there was some discussion before us about whether the dominant purpose test applied to the legal context, in the sense of whether the dominant purpose of the role or retainer of (or instructions to) the relevant lawyer had to be for giving or seeking legal advice. In The Sagheera (at page 168), Rix J suggested that in practice it might, so that, if the dominant purpose of the retainer is the obtaining and giving of legal advice, “although it is in theory possible that individual documents may fall outside that purpose, in practice it is unlikely”, whereas, if the dominant purpose of the retainer is some business purpose, the documents will not be privileged unless specific legal advice is given and/or sought. Property Alliance Group Limited vRoyal Bank of Scotland plc [2015] EWHC 3187 (Ch); [2016] 1 WLR 992, to which we were referred, is an example of a case in which the scope of the retainer of (in that case, external) lawyers, coupled with a properly broad (rather than nit-picking) approach to the continuum of communications, resulted in all of the memoranda for and minutes of meetings prepared by the lawyers in the context of a regulatory investigation being covered by LAP.

In this context, it is worthy of note that all of their Lordships in Three Rivers (No 6) emphasised the need for a “relevant legal context” (see, e.g., Lord Scott at [38]) but all (except, perhaps, Lord Carswell: see, e.g., [84]) declined to import a dominant purpose test for legal context or the lawyer’s brief, although Sir Sydney Kentridge QC

In his submissions, in considering whether documents are the subject of LAP, Mr Grodzinski emphasised the importance of the purpose of the relevant lawyer’s retainer and role. I accept that, despite some suggestions to the contrary in previous cases, the general instructions to and role of the relevant lawyer make a good starting point, particularly given the court’s acceptance that the breadth of “legal advice” in this context includes a lawyer giving advice with the benefit of his skills as a lawyer or “through a lawyer’s eyes”. However, it is not determinative of the different question as to whether a specific document passing between them is subject to LAP. It is clear from the authorities that, even if the dominant purpose of a lawyer’s retainer (or his “dominant role”) is related to that of giving legal advice, that is not conclusive on the question of whether LAP applies to a particular communication between lawyer and

However, as to the second limb of Proposition 5, it is now well-established and uncontroversial that LAP covers more than just communications between lawyers and clients with regard to what the law is. Balabel indicated that the scope of LAP in this regard is wide, in two ways. First, it includes advice on the application of the law or, as Taylor LJ put it, “legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context”. That was endorsed in Three Rivers (No 6) (see [62] per Lord Rodger, expressing the agreed view of the Judicial Committee). Second, once a legal context is established, LAP applies, not just to those communications which expressly seek or give legal advice, but also to the “continuum of communications” between a lawyer and client aimed at “keeping both informed so that advice may be sought and given as required”. That again was endorsed in Three Rivers (No 6) (see, e.g., [111] per Lord Carswell, quoted at paragraph 63 above, with whom Lord Rodger, Baroness Hale and Lord Brown agreed). In arguing that dominant purpose does not apply to LAP, Mr Pievsky for the Law Society relied on the fact that Balabel did not expressly require a document to have such a purpose for LAP to apply: but that does not seem to me to add force to his argument. Balabel primarily concerned the scope of “legal advice”. Whether or not that test applied to LAP was not at issue in that case.

Therefore, summarising the position as indicated by the authorities (and still leaving aside for the time being the issue of whether the relevant purpose has to be “dominant”):

That leads me to the first question which has to be considered in this appeal, at the heart of Grounds 1 and 2, namely does a claim for LAP require the proponent to show that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice?

Although it has been said that litigation privilege and LAP are “integral parts of the same privilege” (Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16 at page 33E per Lord Nicholls of Birkenhead), it is now generally accepted that they are two distinct limbs of legal professional privilege with different characteristics (see, e.g., Waugh v British Railways Board [1980] AC 521 at page 541G-H per Lord Edmund-Davies, Three Rivers (No 6) at [103] per Lord Carswell, and Eurasian at [63]). One obvious difference is that established by Wheeler v Le Marchant (see paragraphs 1 and 46 above): whilst LAP is restricted to communications between lawyer and client (and vice versa), litigation privilege can attach to communications with other individuals. The categories are therefore distinct; but, of course, overlapping; as communications between solicitor and client concerning litigation may fall into both categories.

Despite their differences, each limb of the privilege is defined in part by reference to the purpose of the relevant communication: in respect of litigation privilege, the purpose of pursuing or defending actual or proposed litigation and, in respect of LAP, the purpose of giving or seeking legal advice.

There consequently arose an issue as to whether, in circumstances in which a communication had more than one purpose, it was sufficient for the privilege to attach for one purpose to be for litigation or for obtaining/seeking legal advice, or whether that had to be the appreciable, dominant or even sole purpose.

The issue first arose in Australia. In Grant v Downs (1976) CLR 674, a widow sued the New South Wales Government after her husband died in a psychiatric hospital. The widow considered the hospital to blame. In accordance with standard practice, the relevant government department obtained reports on the death. When the widow sought discovery of the reports, litigation privilege was claimed. It was said that the reports were prepared for a number of purposes: to assist in determining whether there had been a breach of staff discipline, to detect whether there were any faults in the hospital's systems and procedures, and to enable the department to obtain legal advice as to its possible liability and to obtain legal representation in the event of any coronial or civil proceedings.

A majority of the High Court of Australia adopted a sole purpose test for both limbs of the privilege; but, in a dissenting judgment, Barwick CJ preferred a dominant purpose test. He said (at page 677):

“Having considered the decisions, the writings and the various aspects of the public interest which claim attention, I have come to the conclusion that the court should state the relevant principle as follows: a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection” (emphasis added).

That test was ultimately adopted in Australia, for both limbs of the privilege, in EssoAustralia Resources Limited v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 (“East Australia Resources”). In Australia, it is now well-established that the dominant purpose test applies to LAP (see, e.g., AWB Limited v Cole [2006] FCA 571).

The dominant purpose issue first arose in this jurisdiction in Waugh, the facts of which did not substantially differ from those of Grant v Downs. A railway employee died in a collision between locomotives. His widow sued the railway board. There was an internal inquiry into the accident, resulting in a report which was prepared for two purposes which were (the court held) of equal rank and weight: to assist the

Waugh was a case which proceeded on the basis that the effective limb of legal professional privilege, if any, was litigation privilege; and it is uncontroversial that it established that, for litigation privilege to be claimed, the relevant communication must have had the dominant purpose of pursuing or defending actual or contemplated litigation. The question raised by Ground 1 is whether, in this jurisdiction, the same principle applies to LAP: must the relevant communication have had the dominant purpose of giving or obtaining legal advice?

Mr Grodzinski for the CAA, and Mr Béar for Jet2, agreed that there was no authority directly on point; but each contended, as his primary submission, that the preponderance of authority was in his favour.

Mr Grodzinski’s “core submission” was that the application of the dominant purpose test to LAP is inconsistent with Three Rivers (No 6). He submitted that it was telling that, in authoritatively defining the test for LAP, Lord Carswell in Three Rivers (No6) at [111] did not refer to “dominant purpose” as being an element of that test (nor, indeed, did Taylor LJ in Balabel). Other authorities which suggest that it is, such as The Sagheera, Philip Morris and Three Rivers (No 5) (although Mr Grodzinski submitted that this last judgment, when read as a whole, did not in any event support the proposition that the dominant purpose test applies to LAP) were decided before Three Rivers (No 6) and therefore have to be read in the light of the authoritative definition set out in that case. In any event, he said, the issue was recently considered in Eurasian, in which this court squarely addressed the issue and firmly concluded (at [132]) that the dominant purpose test did not apply to LAP. Because of its findings in relation to other issues (see paragraph 55 and following above), that was formally obiter; but nevertheless, he submitted, the issue had been fully argued before the court, and it was obiter of substantial persuasive authority. This court should follow it.

Mr Béar submitted, to the contrary, that The Sagheera, Three Rivers (No 5), ThreeRivers (No 6) and Philip Morris all held or accepted that the dominant purpose test was applicable. That was in general line with both overseas authority, and the leading text books. The observations in Eurasian were clearly obiter, and were made in the entirely different context of a case in which the relevant lawyers were external solicitors retained to provide legal advice, so that a dominant purpose test was not pertinent in practice. Furthermore, the court failed to grapple with the earlier authorities. Eurasian could not dislodge the preponderance of authorities to the effect that dominant purpose is required for LAP to apply.

Below, Morris J held that the balance of authority was in favour of the dominant purpose test; and, whilst Eurasian expressed a contrary view, it was obiter and was insufficient to undermine the preponderant view of the earlier authorities. I agree.

In respect of authorities, the generally held view is that Waugh did not purport to say anything about the position with regard to LAP (see, e.g., Hollander at paragraph 1716, Privilege by Colin Passmore (3rd edition) (“Passmore”) at paragraph 2-099 and

However:

Turning to the Three Rivers cases, in respect of the appeal from Tomlinson J (i.e. Three Rivers (No 5) in the Court of Appeal) on this issue, again, I do not find the judgment as clear as it might have been. Whether the dominant purpose test applies to LAP was in issue before Tomlinson J; and the Court of Appeal judgment appears to record that Tomlinson J held that it did (see [7]). However, by the time the application came before the Court of Appeal, it seems that that issue was not further contested (see the record of argument, especially at page 1559F-G, where the Bank appears to accept that the dominant purpose test does apply), the core issue being, as I have described, whether that test applied to documents emanating from employees of the Bank. But the judgment at least assumed that that is the test. Notably, there are references throughout the judgment to “dominant purpose” without adverse comment; and there is a lengthy passage (at [32]-[37]) on the issue of whether, had the resolution of the earlier issues required it, “the internal documentation of the Bank, which came into existence after the setting up of the Bingham Inquiry, was indeed prepared with the dominant purpose of obtaining [legal] advice”. Mr Grodzinski could not explain why the court embarked on such an exercise if, as a matter of principle, the dominant purpose test could not even contingently be applicable.

Mr Pievsky forcefully submitted that the House of Lords in Three Rivers (No 6) did not refer to “dominant purpose” in the context of LAP, suggesting that their Lordships did not consider that it applied. However, the Judicial Committee did not expressly consider the dominant purpose point in that case: their Lordships did not have to deal with it in the context of that appeal, and clearly declined so to do. However, the Court of Appeal (the constitution of which included both the Master of the Rolls and Longmore LJ, who had also sat on Three Rivers (No 5)) again at least appears to have assumed that the dominant purpose test applied. The issue was not whether that test applied, but whether it had been satisfied (see, e.g., [6]). In their Lordships’ speeches on appeal, there are numerous references to the test, again without adverse comment.

In Philip Morris (Comm Ct), Moore-Bick J seems to have considered (at [38]) that Three Rivers (No 5) held that it was a condition of LAP applying that the relevant communication “must be for the dominant purpose of obtaining or giving legal advice…”; which the Court of Appeal confirmed without adverse comment (at [77]).

In each of these authorities, therefore, it seems to have been at least accepted by the court without any adverse comment that the dominant purpose test applies to LAP. Insofar as the Court of Appeal in Three Rivers (No 5) and the House of Lords in Three Rivers (No 6) accepted the test applied, then acceptance (even if made on the basis of a concession by the proponent of LAP) was made by the highest courts in circumstances in which, in my view, it is inconceivable that an acceptance or assumption would have been made without adverse comment unless it was considered that the test was applicable. On that issue, as I have indicated, I agree with the sentiments of Tomlinson J in Three Rivers (No 5) (Comm Ct) (quoted at paragraph 83(iv) above).

The only authority to suggest that the dominant purpose test does not apply is Eurasian. Because the court considered it was bound by Three Rivers (No 5) to proceed on the basis that communications between an employee of a corporation and the corporation’s lawyers could not attract LAP unless that employee was tasked with seeking and receiving such advice on behalf of the client (which was determinative in the Eurasian case), it did not have to determine the issue of dominant purpose. However, it said:

“131.

The SFO submitted that it should in any event be held that, if information passed to a company’s lawyers by employees who were not authorised to seek and receive legal advice could be the subject of legal advice privilege, a further qualification should be added, namely that the information must be shown to have been obtained for the dominant purpose of obtaining legal advice. This, submitted Mr James Segan for the SFO, was established by a line of cases including, for example, The Sagheera... at page 168, Three Rivers (No 5)

[(Comm Ct)]… at [20], [21], [26] and [30], and Philip Morris [in the Court of Appeal] at [43] and [77].

132.

In the light of the approach that we have adopted thus far to legal advice privilege, it would not be appropriate to reach any final conclusion on this submission. In our judgment, however, it is hard to see why the suggested additional qualification is necessary, when the privilege can, by definition, only be claimed when legal advice is being sought or given. It is one thing to say that litigation privilege can only be claimed where the communication is created for the dominant purpose of the litigation, but entirely another to say that legal advice privilege can only be claimed where the communication is created for the dominant purpose of seeking legal advice. The second is tautologous.”

However:

In the circumstances, I do not consider that Eurasian significantly undermines the authorities which either hold or accept that the dominant purpose test applies to LAP. 91.We were also referred to three legal textbooks, with which I should briefly deal.

I accept that this court may not be formally bound by the authorities which are considered above; but each party contested the appeal on the basis that these authorities, whilst not binding, were important, if not crucial, in giving guidance. Insofar as we are not formally bound, I consider the authorities of considerable persuasive weight, and we should follow them unless there is good reason not to do so.

Mr Grodzinski’s submissions on this ground were heavily reliant upon the authorities which, he contended, were adverse to dominant purpose being an element of LAP. However, in support of his submissions, he relied upon three other matters.

For those reasons, I do not consider that there is any good ground for not following the preponderance of authority which supports the inclusion of a dominant purpose criterion into LAP.

Further, in my view there are good grounds for including such a criterion.

For those reasons, whilst I readily accept that the jurisprudence is far from straightforward and the authorities do not speak with a single, clear voice, I consider

Most of the documents which are the subject of the disclosure application giving rise to this appeal are emails sent to a number of addressees, one or more of whom were in-house lawyers (who, Morris J found, were acting qua lawyers) but one or more of whom were non-lawyers.

Of these emails in the December 2018 judgment, he held:

As I have found in respect of Ground 1, the dominant purpose criterion does apply to LAP. Of most of the emails in respect of which disclosure is sought, the CAA accept that it cannot be said that (i) the dominant purpose was to seek legal advice, or (ii) the email/attachment might realistically disclose the nature of the legal advice being sought from, or given by, the in-house lawyer (see paragraph 30 above). To a large extent, Ground 1 would appear effectively to resolve the issues in Ground 2.

In respect of these emails, I generally agree with the approach applied by Morris J in paragraphs 99-102 of the December 2018 judgment. In my view, the following is the appropriate approach to multi-addressee emails such as those of which Jet2 seek disclosure in this case.

As I have described (see paragraph 29 above), on considering whether each document satisfied the criteria (i.e. whether (i) the dominant purpose was to seek legal advice, or (ii) the email/attachment might realistically disclose the nature of the legal advice being sought from, or given by, the in-house lawyer), Ms Brooks identified two matters which, she considered, disenabled her from determining whether the document was or was not privileged. Neither of these went to dominant purpose. However, she considered that, in determining whether a document disclosed (or might disclose) the nature of legal advice, sought or given, it was unclear from the December 2018 judgment whether (i) it is necessary for legal advice to be specifically requested, and (ii) the particular document should be looked at discretely or in the context of the communications which preceded and followed it. In respect of (i), it is not necessary for advice to have been specifically requested: as has been clear since

Finally, to deal with a discrete point, before Morris J it was contended on behalf of the CAA that the 24 January 2018 email was covered by privilege. In my view, the judge was right to conclude that it was not: although the email was sent to three people including a lawyer (Ms Lim), it was clearly not its dominant purpose to obtain legal (as opposed to non-legal commercial) advice.

For those reasons, Ground 2 fails.

The effect of the December 2018 judgment and the Order which followed it was to require the CAA to assess whether each email and each attachment, considered separately, was privileged in accordance with the judgment.

Mr Grodzinski submitted that that approach was wrong, because LAP protects communications (or records of communications) and an attachment to an email cannot be regarded as a separate communication from the email itself. The difference in approach may have some practical consequences. He posed the example of a senior executive sending an email to multiple recipients, including a lawyer, attaching a draft document prepared by the lawyer; and, in the covering email, suggesting some amendments and asking for the views of his (non-lawyer) colleagues. It was submitted that, looked at as a whole, both email and attachment would be privileged as they would reveal the nature of the legal advice given; but, looked at separately, the attachment would be privileged, but the email would not.

This ground did not feature heavily before us. I do not consider that it raises any point of principle, nor does it appear to bear upon whether any of the relevant documents in this case are privileged or not. I can deal with it shortly.

It is well-established that a document which is not privileged does not become so simply because it is sent to lawyers, even as part of a request for legal advice (Ventouris v Mountain [1991] 1 WLR 607 at page 616F, and Imerman v Tchenguiz [2009] EWHC 2901 at [14]). In giving disclosure, some separate consideration of substantive documents and attachments therefore has to be undertaken. Whilst an email and attachment can be regarded as a single communication, separate consideration will need to be given to the attachment, given that it will have been received or created by the sender, and therefore may require discrete consideration. I do not find Mr Grodzinski’s example of assistance. In that case, it is likely that the email, considered separately, will be privileged as inevitably disclosing legal advice received (in the form of the draft letter).

I do not consider that Morris J erred in requiring the separate consideration of emails and attachments for the purposes of identifying documents that are covered by LAP and those which are not. I would refuse the appeal on this ground.

In the February 2019 judgment, Morris J held that if, contrary to his primary conclusion that they were not, the relevant documents were privileged, then privilege in all the documents was waived by the CAA by its disclosure of the 24 January 2018 email (referred to in paragraph 12 above). Mr Grodzinski submitted the judge was wrong to do so, because (i) he wrongly identified the relevant “transaction” in respect of which privilege had been waived, and (ii) he was wrong to conclude that, the 24 January 2018 email having been disclosed, fairness required the disclosure of all the drafts of the 1 February 2018 letter and internal correspondence about those drafts.

As I have concluded that the relevant documents are not privileged, this ground has become academic. I will deal with it shortly.

The relevant principles are uncontroversial. Although the voluntary disclosure of a privileged document may result in the waiver of privilege in other material, it does not necessarily have the result that privilege is waived in all documents of the same category or all documents relating to all issues which the disclosed document touches. However, voluntary disclosure cannot be made in such a partial or selective manner that unfairness or misunderstanding may result (Paragon Finance plc v Freshfields [1999] 1 WLR 1183 at page 1188D per Lord Bingham CJ).

Collateral waiver of privilege allows for documents and other material that would otherwise be non-disclosable on public interest grounds, to be required to be disclosed even though the individual with the right to withhold disclosure objects. The courts have therefore imposed certain constraints on collateral waiver.

The starting point is to ascertain “the issue in relation to which the [voluntarily disclosed material] has been deployed”, known as the “transaction test” (GeneralAccident Fire and Life Assurance Corporation Limited v Tanter [1984] 1 WLR 100 at 113D per Hobhouse J), waiver being limited to documents relating to that “transaction” subject to the overriding requirement for fairness. The “transaction” is not the same as the subject matter of the disclosed document or communication, and waiver does not apply to all documents which could be described as “relevant” to the issue, in the usual, Peruvian Guano sense of the term as used in disclosure (Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 35).

In Fulham Leisure Holdings Limited v Nicholson Graham & Jones [2006] EWHC 158 (Ch); [2006] 2 All ER 599 at [18], having reviewed the relevant authorities, Mann J described the approach thus:

“18.

What those citations show is that it is necessary to bear in mind two concepts. First of all, there is the actual transaction or act in respect of which disclosure is made. In order to identify the transaction, one has to look first at what it is in essence that the waiving party is seeking to disclose. It may be apparent from that alone that what is to be disclosed is obviously a single and complete ‘transaction’ – for example, the advice given by a lawyer on a given occasion…. [O]ne is in my view entitled to look to see the purpose for which the material is disclosed, or the point in the action to which it is said to go…. Mr Croxford [Counsel for the claimant, which sought to rely on LAP] submitted that the purpose of the disclosure played no part in a determination of how far the waiver went. I do not agree with that; in some cases it may provide a realistic, objectively determinable definition of the ‘transaction’ in question. Once the transaction has been identified, then those cases show that the whole of the material relevant to that transaction must be disclosed. In my view it is not open to a waiving party to say that the transaction is simply what that party has chosen to disclose (again contrary to the substance of a submission made by Mr Croxford). The court will determine objectively what the real transaction is so that the scope of the waiver can be determined. If only part of the material involved in that transaction has been disclosed then further disclosure will be ordered and it can no longer be resisted on the basis of privilege.

19.

Once the transaction has been identified and proper disclosure made of that, then the additional principles of fairness may come into play if it is apparent from the disclosure that has been made that it is in fact part of some bigger picture (not necessarily part of some bigger ‘transaction’) and fairness, and the need not to mislead, requires further disclosure. The application of this principle will be very fact sensitive, and will therefore vary very much from case to case….”

The purpose of the voluntary disclosure, which has prompted the contention that privilege in other material has been collaterally waived, is therefore an important consideration in the assessment of what constitutes the relevant “transaction” (see also Dore v Leicestershire County Council [2010] EWHC 34 (Ch) at [18]-[19] also per Mann J).

In this case, the 24 January 2018 email was voluntarily disclosed by the CAA as an attachment to Mr Moriarty’s statement served in support of its defence to the claim (see paragraphs 19 above). Mr Moriarty explained (at paragraph 27 of his statement) that the purpose of that disclosure was to show that the language used by Mr Haines in his email of 18 January 2018 was “not reflective of any part of the approach taken by the CAA”. Mr Moriarty said that:

“This can be seen from an email sent to Mr Haines by one of my colleagues, Mr Buffey [attached as an exhibit],… and from the content of the material that we published.”

Morris J accepted that that was the purpose of disclosure (February 2019 judgment at

Mr Béar submits that the judge was entitled to draw that conclusion. He referred to the relevant authorities, and the correct principles (as briefly described above); and he was entitled to make (as he did), (i) the factual finding that the approach of the CAA

Mr Grodzinski submitted that the judge erred in law in proceeding on the basis that the relevant “transaction” extended to everything that was relevant to the response to the 24 January 2018 email (notably the drafts of the 1 February 2018 letter), including all drafts and all email discussions of the drafts. Having regard to the purpose of the voluntary disclosure (which did not involve disclosing any legal advice, or anything to do with the request or provision of legal advice), the relevant transaction should have been limited to the 24 January 2018 email itself; nor did fairness require any wider disclosure.

On this issue, I prefer the submissions of Mr Grodzinski. In my view, the purpose and nature of the voluntary disclosure are crucial; and, in this case, I consider Morris J unfortunately failed properly to take these matters into account. As the judge accepted, the disclosure was not in respect of any legal advice; and so it could not be said that there was any risk of the email presenting a partial or selective disclosure of legal advice and thus there was no risk of unfairness that might have been caused by such partial disclosure. The purpose of the email was modest: it was intended to show that (in Mr Moriarty’s words) the language used by Mr Haines in his email of 18 January 2018 was “not reflective of any part of the approach taken by the CAA”; or, perhaps more accurately, that not all of the executives at CAA shared the approach suggested by Mr Haines’ earlier email. It cannot be right that such a modest voluntary disclosure could result in the collateral waiver (and thus the forced disclosure by the CAA) in respect of all the internal communications relating to the drafting of the 1 February 2018 letter, including those that expressly reveal legal advice from the CAA’s lawyers; nor is that what the law (or fairness) requires.

In my view, the relevant transaction so far as the voluntary disclosure is concerned is restricted to the 24 January 2018 email itself. Fairness does not require more.

For those reasons, had I concluded that the relevant documents are privileged, I would have held that that privilege was not waived in respect of any of them by the voluntary disclosure of the 24 January 2018 email.

For those reasons, I find none of the grounds made good; and, subject to my Lords Patten and Peter Jackson LJJ, I would dismiss the appeal.