Legal advice privilege does not apply to material collected by a client (or by his lawyer on his behalf) from third parties or agents for the purposes of instructing lawyers to give advice. Where the relevant client is a corporation, documents or other materials between an employee and a co-employee, even if required to equip lawyers to advise, will not attract LAP unless the employee has been tasked with seeking and receiving legal advice on behalf of the corporation.
This proposition, a composite of the fourth of five propositions set out by the Court of Appeal in CAA v R (Jet2.Com Limited) (see the first of our four blogs on that decision here) is derived from that Court’s earlier decision in Three Rivers (No 5). Lord Justice Hickinbottom, giving the judgment of the Court of Appeal in CAA, noted that the proposition was “not easy” and that had it been in the Court’s power, he would have departed from it. This is not the first time that the Court of Appeal has articulated that it would depart from Three Rivers: see the Eurasian Mining case.
Three Rivers has now therefore been subject to considerable judicial criticism. The CAA case is perhaps notable for two additional points raised by the Judge (not specifically addressed in Eurasian Mining):
- Where lawyers are instructed, the individual with a corporation that is tasked with instructing them must be able to ensure that the instructions are in accordance with the wishes of senior executives, which may in turn require input from junior employees. Internal communications settling instructions must be covered by LAP. It is unclear how Three Rivers allows for that.
- LAP applies to communications disseminating, considering or applying legal advice (see proposition 2 in our first blog). Three Rivers appears to be inconsistent with that proposition, for no obvious reason.
It is likely a matter of when, rather than if, the issue comes before the Supreme Court.
The fifth proposition from CAA is that LAP applies only to communications where the purpose of giving or obtaining legal advice is the dominant purpose. This now brings LAP into line with litigation privilege (a distinct limb of legal professional privilege), where the dominant purpose of pursuing or defending actual or contemplated litigation must be shown. It is also consistent with the position under other common law jurisdictions, including Australia, Singapore and Hong Kong.
In coming to this conclusion, and noting that the parties were agreed that there was no authority directly on the issue, the Court of Appeal made the following non-exhaustive points:
- The CAA had argued that if the dominant purpose test were to apply, then some communications passing between lawyer and client which have as a purpose (but not the dominant purpose) the giving or obtaining legal advice, would be disclosable. This would undermine the whole purpose of LAP. To this, the Court held “the common law is not bound to acknowledge a right to withhold evidence that would otherwise be disclosable simply because the relevant material has, as simply one, minor purpose, the obtaining of legal advice, without consideration of the respective weight of purpose. It is entitled to balance the public interest in these respective principles…”
- Although they have different characteristics, LAP and litigation privilege are limbs of the same privilege, legal professional privilege. There is no compelling rationale for differentiation in this context.
- Generally, the position in other common law jurisdictions is that a dominant purpose test does apply to LAP. This suggests that the dominant purpose test works in practice. Further, this is a legal area in which consistency of approach is advantageous.